A new day a new Coronavirus update
19th March, 2020
Update 19th March 2020
Click here for our latest update to schools.
Update 13th March 2020
For those of you who have been inundated with information on the coronavirus and the legal position involving employees and their entitlements, there is a further update as from 13th March. The Government has made some speedy amends to the current Statutory Sick Pay rules to provide that SSP is payable to anyone isolating themselves from other people in such a manner as to prevent infection or contamination with coronavirus, in accordance with guidance published by Public Health England, NHS Scotland or Public Health Wales. This means that the legal position now mirrors what ministers have been saying in the press.
It is a long time since we have seen legislation brought in so quickly, but clearly these are very unusual times. Interestingly, there is wording in the regulations to say that they will be kept under review and will only have effect for 8 months. Hopefully, by that time this will all be a distant memory and we can get back to business as usual.
Update 12th March 2020
The Government is also considering how to protect the public and economy with measures being announced almost daily. The budget speech delivered by Chancellor Rishi Sunak included some measures to assist businesses with the costs associated with the spread of the virus. A summary of the measures announced by the Government in the budget can be viewed here.
If an employee can’t work
If an employee is too ill to work (whatever the diagnosis), the general requirements on sick leave and pay apply. If an employee is ill or has flu-like symptoms, whether that is Covid-19 or not, and they are incapable of working, they will be entitled to sick leave and sick pay. Employees who are absent from work due to sickness are generally entitled to Statutory Sick Pay (SSP) provided they meet eligibility criteria. They may also be entitled to contractual (or occupational) sick pay as well, depending on your arrangements. Normally, this entitlement is on the basis that they are incapable of work because of sickness (and not suspected sickness or self-isolation).
Working from home
An employee may feel that they are too sick to attend work but possibly well enough to do some work from home. If this is possible, employers should consider whether this is possible. Ordinarily, an employee who is unfit to attend their normal place of work is deemed to be unfit to work at all but there may be situations where it could be feasible. However, if an employee is sick, an employer should not do anything which might deter an employee from taking sick leave (as this could lead to further claims for holiday pay, and breaches of the Working Time Regulations).
An employer may make a decision to require employees to work from home to reduce the risk of contracting the virus. An employee who is working from home at the employer’s request is entitled to their usual pay and benefits.
Time off to look after others
Employees are also entitled to take a reasonable period of unpaid time off work to care for dependents due to unexpected events or in emergencies.
An employee taking time off to look after their children when a school has closed, or to care for an elderly relative when a carer is unavailable, has the statutory right to take a reasonable period of unpaid time off work. This should be sufficient time to make alternative arrangements but in reality it is often to provide the care themselves. An employer should not discipline or dismiss an employee who takes this form of leave without seeking advice as the employee could bring a claim that this is automatically unfair.
Sick pay when an employee ‘self-isolates’
The current guidance from Public Health England is that certain individuals should self-isolate, for example, those who have recently travelled back from an area where the infection rate for coronavirus is high and have symptoms and/or are awaiting a test result, or those who have been identified as having been in close contact with someone who had the virus. During this period, they should remain at home for 14 days and limit their contact with others.
Someone who is capable of work (and not sick at that time) but is known or reasonably suspected of being infected or contaminated may also be entitled to SSP. As it may deter people who should be self-isolating (or an infection risk) from taking unpaid leave, Health Secretary Matt Hancock has stated that an employee will be entitled to SSP if they are self-isolating on written advice from a GP (or NHS 111). The entitlement to SSP depends on this written advice – if the employee was not advised in writing to self-isolate, they may not be entitled to SSP.
If an employee suspects that they are sick but have not received a formal diagnosis, and are therefore not self-isolating on written advice, ACAS has suggested that an employer should be flexible. Both SSP and contractual sick pay will normally require some evidence of sickness (after a period of time) but it may be that the employee is unable to see a GP due to high levels of demand (or as they are self-isolating). If this happens, the employee should inform the employer as soon as possible.
SSP from day one
The Prime Minister also announced on 4 March 2020 that the usual period of 3 waiting days will not apply so that employees will be eligible for SSP from day one of their absence. This requires emergency regulations, which have not yet been published, so it is not yet clear how this will work with employees who are sick, suspect they are sick, or are self-isolating.
If the employee is symptom-free, or at least capable of carrying out their work, they should be entitled to work from home. An employee would still be entitled to their normal pay if they are working. If they have existing arrangements to work from home, there should be no difficulty.
The budget announced that businesses with fewer than 250 employees will be refunded for SSP payments made during the 14 day self-isolation period.
What to do where an employee won’t attend work
Where an employee is not sick, is symptom-free and has not been asked to self-isolate, but they refuse to attend work (for example, because of a fear of becoming infected either at work or on the commute to work), then this is neither sick leave nor medical suspension. This could be considered as a period of unauthorised and unpaid leave. The employee could be asked or required to take this as holiday. However, this could lead to an internal grievance depending on their entitlement and holiday plans.
In principle, an employer could take disciplinary action against an employee who refused to attend work without a good reason, however individual circumstances will need to be considered. Each case depends on its circumstances. If they were consistent and had effectively quarantined themselves, for example, rather than being seen out and about in public, and they had an underlying health condition, are pregnant or are disabled, that would be relevant. You should seek advice before issuing any formal letter requiring them to return to work or instigate disciplinary proceedings.
Can you ask employees for information about where they are travelling to on holiday?
It may be appropriate to request information from employees who are intending to travel abroad about where they are planning on visiting. This will enable the employer to assess the risk of them returning to the business without first self-isolating.
Can you force an employee to travel on work?
What you can and cannot force an employee to do depends on whether this a reasonable management instruction. If you are asking an employee to travel to somewhere that the Foreign and Commonwealth office has stated should be avoided then this is unlikely to be reasonable. Current Government guidance on travel should be consulted to determine the level of risk you are asking the employee to take and whether that is reasonable or not. An employee’s reasons for not wanting to travel should also be taken into account. Alternative communication methods such as Skype meetings should also be considered. Where travel is not business essential it may be appropriate to avoid this during the outbreak.
Asking an employee not to attend work
Where an employee is not sick, is symptom-free and has not been asked to self-isolate, but you have asked them not to attend work, this would not be a period of sick leave. It is similar to a period of medical suspension (but that only applies in a limited set of circumstances). Instead, it could be treated as a period of ‘special leave’. Like suspension pending a disciplinary investigation, this should be on full pay and benefits.
Closing the business for a temporary period
It may become necessary at some point to close public spaces where employees work. For example, offices, factories, schools etc. This is similar to the position of asking the employees not to attend work in that, in most cases, the employees will be ready and willing to attend work but for the closure. The employees should therefore be on full pay and benefits. It may be possible for some employees to work from home to maintain business continuity which can be requested by the employer.
There are options that can be considered to mitigate against the risk and cost of closures. For example, notice may be provided to require employees to take holiday or alternatively, lay off and short term working can be considered if there is a clause which permits this in an employee’s contract. Please seek further advice if you would like to discuss these options.
The Government may well issue forced closures in the coming weeks. We will update you further if this changes the positon.
Evidence of sickness
One difficult issue may be the lack of evidence/fit note that a person is ill, if they say that they cannot see a GP due to high demand, or because they have decided to self-isolate without seeking advice. There may be little to distinguish people who genuinely have an issue from those who are abusing the system. You may need to be cautious unless you have any evidence to show that the employee is being dishonest.
The Government has announced that sick notes will be made available via 111 which should make the process of evidencing absences for coronavirus easier.
What if someone with coronavirus attends work
You should contact the local Public Health England Health protection team who will provide further advice on the action to take, click here.
How does this affect agency workers?
The situation with agency workers is more complex due to the tripartite relationship and the Agency Worker Regulations. We would recommend that you seek advice in respect of individual circumstances with agency workers.
Guidance is available on the following websites:
Specific guidance for educational settings is available here.
For further information, please get in touch.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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