Rachael Lloyd
Posted on 27 Mar 2020

Coronavirus (COVID-19) – advice for employers

Coronavirus has recently been declared as a pandemic by the World Health Organisation (WHO). The status acknowledges the widespread prevalence and impact of coronavirus across the globe. Furthermore, the government has announced that up to a fifth of the UK workforce could be off sick at its peak. Therefore, it is vital that you take steps to reduce the risk and impact on your organisation.

Job Retention Scheme

On 20 March 2020, the government announced the implementation of the Coronavirus Job Retention Scheme ('the Scheme'), to try and help businesses and employees alike through these unprecedented times. The aim of the Scheme is to protect jobs and try to avoid redundancies.

For further detail on the Job Retention Scheme please click here

Obligations on employers

It is important that you take a robust approach, in order to:

  • protect employees and customers or clients as much as possible, by preventing the spread of infection, particularly to vulnerable people; and
  • allow your business to continue to function, support your clients or customers, and minimise disruption.

In determining a response to the coronavirus, it is important that you have regard to your various duties, including the duty to take reasonable care of the health and safety of your workers, and other responsibilities under legislation such as the Equality Act 2010.

Business continuity and 'flattening the curve': practical steps

Practically, there are number of sensible strategies you should consider adopting, as follows:

  • keeping up to date on government guidance and communicating this to employees;
  • ensuring emergency contact details of employees are up to date;
  • reminding employees to notify HR if they have been to a Category 1 or Category 2 area (as defined by Public Health England), have been in contact with a person who has been to a high risk area or has symptoms of coronavirus, and self-isolate according to government guidelines in force at the time;
  • reinforcing government advice regarding self-isolation when displaying symptoms consistent with coronavirus;
  • updating policies and procedures in relation to flexible working, homeworking and sickness absence;
  • ensuring employees can work effectively from home (where possible);
  • carrying out risk assessments (e.g of events or the workplace); and
  • displaying signs encouraging preventative measures (e.g. hand washing).

Employee absence and application of Statutory Sick Pay (SSP)

In the light of the coronavirus pandemic, there have been changes to the sick pay provisions, as follows:

  • emergency legislation will be fast-tracked, making SSP payable from the first day of sickness absence (rather than the fourth, as would be usual);
  • small employers (with fewer than 250 employees) will be reimbursed for any SSP paid to employees in respect of the first 14 days of sickness which is related to COVID-19;
  • a temporary alternative to the 'fit note' will be introduced in the coming weeks which can be used for the duration of the COVID-19 outbreak. This will enable those who are advised to self-isolate to obtain a notification via NHS 111 which they can use as evidence for absence from work.

SSP is currently £94.25 per week and will apply as follows:

Scenario

      Entitlement  to Statutory Sick Pay (SSP)

Employee is self-isolating in line with government advice or receives self-isolation request or notice in writing issued by their doctors or NHS 111

Entitled to SSP

Employee unilaterally chooses not to attend work as a result of a fear of contracting the virus

Employee not technically entitled to SSP, but we would advise that, from a staff engagement perspective, you may wish to consider paying sick pay. You may also want to consider possible discrimination angles in respect of those in high risk categories.

Employee told not to attend work by you

This is likely to constitute suspension, in which case the employee would be entitled to full pay (although see potential alternative measures, below).

 

Business sustainability: alternatives to business closure

Can you require some / all of your employees to take annual leave?

Under the Working Time Directive, employers have a right to require employees to take holiday on specified dates. However, the legislation prescribes that the notice an employer must give in respect of this is at least twice the length of the period of leave that the employee is being ordered to take. For example, if you require an employee to take two weeks' annual leave, you must give them at least four weeks' notice. Notwithstanding this, we consider that, particularly in the current circumstances, it would be open to you to try and agree specific annual leave with employees without providing the requisite notice.

The Working Time Directive does not require you to take the needs of employees into consideration when requiring holiday to be taken at specific times. However, you should be mindful that an employer which exercises its discretion unfairly, may give rise to potential claims from employees for breach of the implied contractual duty of trust and confidence. The employee could also resign in response to your actions, and claim unfair constructive dismissal. Therefore, we would encourage open and collaborative conversations with your employees about this issue, to facilitate staff engagement and limit the risks of any claims.

Can you enforce 'short-time working' / reduction in hours?

In some industries, it is common for contracts of employment to include a provision entitling employers to put employees on short-time working. Essentially, this means providing employees with less work (and less pay) for a period. Unlike redundancy, it is a temporary solution to the problem of a reduction in work.

If you have contractual provisions in your employment contracts which allow for short-time working, then these will be useful to exercise in the event that you either experience a downturn in business due to the economic impact of the virus, or wish to take steps to limit the spread between employees and customers/clients.

If you seek to enforce such provisions for which you do not have a contractual right, then you do risk claims for breach of contract, unlawful deduction of wages or constructive dismissal. The best approach in this situation is to try and agree any temporary change / reduction in hours with your employees and, wherever possible, keep a written record of their agreement or, at the very least, a note of a telephone conversation in which they verbally consented. Employees may well appreciate this measure as a delaying mechanism for potential redundancies further down the line.

Business closure

If a customer / employee has confirmed or suspected Coronavirus, do you have to close?

According to current government guidance (although this is subject to change), even if a member of the public or an employee with confirmed coronavirus has recently visited your premises, closure of the workplace is not automatically necessary. In this scenario, a Local Health Protection Team from Public Health England will contact your management team to undertake a risk assessment and provide advice on any actions or precautions which need to be taken.

If your business is closed for a period, what is the position regarding the payment of employees?

In circumstances where there is a closure of your business due to COVID-19 (whether by choice or further to direction from Public Health England), this will not normally affect your obligation to pay your employees full pay (assuming they are ready and willing to work and not, for example, sick and receiving company / statutory sick pay). However, it is clear that, if a business is forced to close down and revenue is cut off, but it is still required to continue paying employees, this could cause significant economic hardship and could even lead to permanent closures and redundancies in the long-term.

As with short-time working, some industries routinely include contractual provisions entitling employers to 'lay off' employees. Laying off employees means that the employer provides employees with no work (and no pay) for a period. In much the same way as short-time working, this is a temporary solution to the problem of a reduction / cessation in work.

If you have contractual provisions in your employment contracts which allow for lay-offs, then these may be useful to exercise in the event that you have to close your business for a temporary period.

If you do not have such contractual provisions and seek to enforce lay-offs in any event, there is a risk of claims for breach of contract, unlawful deduction of wages or constructive dismissal. As with short-time working, the best approach in this situation is to try and agree any temporary lay-off with your employees and, wherever possible, keep a written record of their agreement or, at the very least, a note of a telephone conversation in which they verbally consented.

HR issues: common questions

What if an employee refuses to follow hygiene rules?

In these circumstances, you are likely to be entitled to take disciplinary action. Disciplinary action could be taken on the basis that the employee has failed to follow a reasonable instruction by management.

What if an employee does not want to attend work?

If an employee refuses to attend work due to concerns of contracting the coronavirus, they are not legally entitled to SSP (see above).

If there are particular genuine health and safety concerns, you should try to resolve these and, if possible, offer alternatives such as remote / flexible working. If an employee still refuses to work, you may wish to consider permitting unpaid leave or holiday.

Notwithstanding the above, you should be mindful of those employees in 'high risk' categories (such as those over 70, or with underlying health conditions) and their possible concerns about attending work in the light of this. There is potential that, if you reduce / withhold pay as a result of their decision not to attend work on account of their risk status, then you may open yourself to potential discrimination claims.

How should you deal with cancelled annual leave?

It is important that you consider forward planning in terms of annual leave. In the short to medium term, a number of employees are likely to cancel annual leave requests (as a result of cancellation of flights and the closure of destinations). In the long term, once travel restrictions are lifted, you are likely to receive an influx of annual leave requests for the remainder of the holiday year.  You should ensure that your holiday policy is applied in a transparent, fair and consistent manner to avoid potential employee dis-engagement.

Is there anything else you need to consider as a result of employees working from home?

Even if employees are working from home, you are still responsible for their welfare, health and safety, "so far as is reasonably practicable".  As a result, you should consider carrying out risk assessments of homeworkers to identify hazards and the degree of risk.  This is particularly important in relation to those employees with disabilities, who may require reasonable adjustments to be made.

This advice is accurate as at 17 March 2020.

For more information, please speak Rachael Lloyd or James Baker in the Employment team.