Employment law implications arising from Coronavirus
There is growing concern from employers about the implications of the potential spread of coronavirus. The situation is rapidly changing and therefore businesses must consider how to prepare for different scenarios. We have therefore prepared a briefing note for employers to assist them in dealing with this unprecedented situation. This is up to date at the time of issue.
What is Coronavirus?
Coronaviruses are common across the world, with typical symptoms including fevers, coughing and breathing difficulties. It can also cause severe problems for the elderly, those with long-term health conditions and poor immune systems.
This particular new strain of coronavirus, officially named COVID-19, was first identified in Wuhan, China, and has spread across the world. Numbers of confirmed cases are rising in the UK each day and the UK’s risk level has been raised to high.
The Government, via its dedicated coronavirus website is providing daily updates about the total number of people who have been tested for coronavirus and the total number who have tested positive. There are also further updates about the steps the Government is taking to inform and protect the general public, including the current risk level, advice for travellers, recent Government action and any other further information.
Additional information is also available from Public Health England and the World Health Organisation.
The current advice is that those who display symptoms such as a high temperature or a new continuous cough should self-isolate immediately and stay at home for 7 days. Similarly, if an individual lives with others at home, all members of the household must also stay at home and self-isolate for 14 days, regardless if those individuals have symptoms.
The advice is that self-isolated individuals do not attend their GP surgery, a pharmacy or hospital in person. There is also no need to contact NHS 111 to tell them about the self-isolation, nor will there be testing of people who are self-isolating with mild symptoms, although they will be under an expectation to inform their employers.
However, if individuals feel that they cannot cope with their symptoms at home, their condition gets worse or that the symptoms do not get better after seven days, they should use the dedicated NHS 111 Coronavirus Service online, and to only call NHS 111 if they cannot get help online.
Emergency Legislation – The Coronavirus Bill 2020
Changes to legislation may be necessary in order to give the country the necessary tools and powers to have an effective response to COVID-19. As such, the Government will be introducing the Coronavirus Bill, details of which have been published.
The proposed Coronavirus Bill will be time limited for 2 years, although all measures may not come into force immediately. Similarly measures can be switched off when they are no longer needed.
2 Key employment law implications from the proposed Coronavirus Bill include the following:
- Enable employees and workers to take Emergency Volunteer Leave in blocks of 2, 3 or 4 weeks’ statutory unpaid leave, with a compensation fund established to compensate for loss of earnings and expenses, thereby ensuring volunteers do not suffer a financial disadvantage as a result of performing a public service.
- Suspension of rules which currently prevent some NHS staff who return to work after retirement from working more than 16 hours per week, as well as relaxed rules of the impact on NHS pensions.
- Provision of powers to force education and childcare providers to stay open by reducing adult to child ratios. Similarly the provision to close education and childcare establishments.
- Expansion of video and audio links in court and tribunal proceedings.
- Restrictions and/or prohibiting events, gatherings and travel by vehicle, train and air.
- Statutory Sick Pay (SSP) to be available from the 1st day of absence, to have retrospective effect from 13th March 2020. Employers with fewer than 250 employees (as of 28th February 2020) will be able to reclaim SSP paid for sickness absences relating to COVID-19. The refund will cover up to 2 weeks’ SSP per eligible employee.
At first glance, these are quite significant measures, and certainly raise numerous issues for businesses, as well as the civil liberties and basic rights for individuals. The effective transfer of numerous rights to the Government for up to 2 years is huge, with its sole purpose being the aim of keeping us all safe.
Duty of health and safety
Employers have a duty of care under the Health and Safety at Work Act 1974 to protect the health and safety of their workforce, as well as who may be affected by their business, including clients, customers and third parties. There is also the common law duty, as well as express and implied duties in Contracts of Employment to protect the health and safety of their workforce.
As such, it is advisable to keep abreast of the developing situation with Coronavirus. The situation is fluid and constantly changing, and therefore businesses have to be ready to adapt and implement significant changes with little to no notice, if and as when they are announced by the Government.
There are steps which employers can be taking now, including educating members of staff on Coronavirus, as well as general hygiene, and the steps taken to reduce risks of infection in the workplace. This can include sufficient supplies of hot water and soap, encouraging everyone to regularly wash their hands, providing hand sanitisers and tissues, as well as face masks for those working with vulnerable individuals.
Businesses may also need to evaluate the health risks for members of staff, to undertake risk assessments, to become extra-vigilant and to ensure everyone is aware of the symptoms of Coronavirus.
The current advice is that individuals who display symptoms such as a high temperature or a new continuous cough should self-isolate immediately and stay at home for seven days. If individuals with these symptoms attend your workplace, it would be advisable to send them home and self-isolate. Similarly it would be advisable to check the health status of visitors to your workplace, such as clients, customers and third parties, and to refuse entry if they display any of these symptoms.
In addition, everyone in the UK has been asked to stop non-essential contact with other people and avoid all unnecessary travel, i.e. social distancing. This means people are required to start working from home wherever possible, to stop all unnecessary travel, to avoid social venues such as pubs and theatres.
We would recommend putting in place a Homeworking policy and procedure.
Confidentiality
Employers should remember that they have implied and express duties of confidentiality, as well as guidelines on privacy and personal information under GDPR. Any information obtained about a member of staff must be stored and kept confidential, with only the information accessible to appropriate members of staff. Naturally this may cause difficulties with Coronavirus cases as employers will need to carefully balance the need to notify members of staff of the level of risk within the business, against the need to keep the identity of the individual circumstances of any Coronavirus incident confidential.
How to deal with absences from the workplace
In light of the potential impact of the Coronavirus, sickness absence policies and procedures should be reviewed to ensure they address scenarios when someone in the workplace has Coronavirus. It also would be a good opportunity to ensure employers have up-to-date emergency details for members of staff.
Absences from the workplace due to Coronavirus can be for a variety of reasons, including sickness, medical appointments, travel restrictions, caring for a dependant and bereavement. Each business will have their own rules and procedures on whether certain absences are acceptable, and if so, whether they would be paid or unpaid.
We would recommend putting in place a Coronavirus COVID-19 policy and procedure.
Sickness absence
Employers should ensure their policies make it clear, both to their line managers and members of staff, about how to report an absence, who to contact, by what time and how, when a fit note should be obtained, how and when to keep in touch during an absence, whether there are any trigger points to escalate the absence, and arrangements regarding pay.
Fit Notes and Online Isolation Notes
When a member of staff is sick, they can self-certify for the first 7 days. A GP fit note is required for absences which last longer from 7 days, however this could cause difficulties for those who cannot obtain the documentation due to delays or self-isolation. If there is a delay, the member of staff should contact their employer and explain the situation as soon as possible.
If the delay is due to Coronavirus, we would strongly advise to use discretion and make some allowance around the need for evidence. It may be the case that an absence is not due to illness, but due to Government advice to self-isolate, which is deemed to be sickness absence for SSP purposes.
In order to assist employees who require evidence for their employers that they cannot work because they are unwell or self-isolating due to COVID-19, they can now obtain an Online Isolation Note. The Online Isolation Note can only be accessed online and will be emailed to an individual email address. For those who do not have the internet, someone else, such as a neighbour, close friend or family member with an internet connection can generate an Online Isolation Note on the individual’s behalf.
The Online Isolation Note can be accessed through the NHS website and NHS 111 online.
Sick pay
The Statutory Sick Pay (General) (Coronavirus Amendments) Regulations 2020 came into force on 13th March 2020. As a result, with immediate effect, persons who are deemed incapable of work for the purposes of SSP include “those who are self-isolating in order to prevent the infection or spread of COVID -19 in accordance with public health guidance and who are unable to work as a result.” The extended definition will be in place for the next eight months and will be kept under review by the Secretary of State for Work and Pensions.
SSP will also be payable to individuals who have been advised to self-isolate, even though they may not have any symptoms. Examples include those who are self-isolating for 14 days because someone in their household has suspected coronavirus symptoms.
Currently, employers as a minimum required are to pay an employee SSP when they are off sick for 4 more days in a row, including weekends and holidays. It is not payable for the first 3 days of absence, but thereafter it is payable for up to 28 weeks.
However, as a result of the Coronavirus Bill, SSP will be available from the 1st day of absence, and will have retrospective effect from 13th March 2020. Employers with fewer than 250 employees (as of 28th February 2020) will be able to reclaim SSP paid for sickness absences relating to COVID-19. The refund will cover up to 2 weeks’ SSP per eligible employee.
The definition of sickness absence has not changed for businesses who offer enhanced sick pay, such as full or half Company sick pay. However, given the confusion regarding differing definitions of sickness absence, and potentially further changes in the future, we would advise businesses to incorporate the Government’s definition of sickness absence for Company sick pay purposes.
For workers and the self-employed who are not entitled to SSP, including those in the gig economy and those with an average income of less than £118 per week, individuals are able to claim Universal Credit and or contributory Employment and Support Allowance.
Apart from the above mentioned announcements, current employment laws surrounding absences from the workplace remain unchanged and that businesses should not treat sick pay arrangements any differently simply because of coronavirus. Therefore individuals are still under an expectation to comply with a Company’s Sickness Absence Procedure in order to get SSP or Company sick pay. Similarly sick pay is not owed to those who are not advised to self-isolate and these absences should be considered as an unauthorised unpaid absence.
Time off for a dependant, school closures and other childcare issues
Absences from work may occur when a member of staff needs to take time off work to help a dependant, particularly if it is an emergency or unexpected event, such as a school closure or to help a family member who is in self-isolation.
Employees have a statutory right to take a reasonable amount of unpaid time off work to help dependants in an unexpected event. This includes a partner, child, parent, close family, an elderly neighbour etc.
The definition of unexpected event is wide and applies when an individual needs to take action because of an immediate or unexpected crisis. As such it can include situations where there is a need to:
- provide assistance when a dependant has a confirmed case of COVID-19, symptoms of COVID-19 or has been advised to self-isolate;
- to make longer-term care arrangements for a dependant who has a confirmed case of COVID19, symptoms of COVID-19 or has been advised to self-isolate;
- take action required in consequence of the death of a dependant
- deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant, such as a child-minder or carer who has a confirmed case of COVID-19, symptoms of COVID-19 or has been advised to self-isolate; and/or deal with an unexpected incident involving a child while a school, nursery or another educational establishment is responsible for them.
Taking time off work for a dependant does not apply where an individual needs to take planned time off work or provide longer-term care for a dependant, such as long term arrangements for children affected by a school closure.
There is no limit to the length of time an employee can take unpaid time off work, as long as it is reasonable in the circumstances, although one to two days is considered reasonable.
There is no statutory right to any pay when individuals are off work for a dependant, school closures and other childcare issues. Similarly absences that become unreasonable in length i.e. to look after children for a couple of months due to school closures, can be considered to be unauthorised and there is no entitlement to any pay.
As school closures in particular may cause considerable problems for employers, it would be advisable to see whether flexible working could be explored, such as a change in working hours, days of work and/or working from home. Alternatively businesses could explore the option of allowing employees to utilise accrued untaken holiday entitlement, to take time off in lieu or to make up lost hours within a reasonable period of time.
Grievances and complaints
Due to the growing alarm of Coronavirus, there may be situations when individuals choose to self-isolate without medical advice. In these situations, the position is less clear and employers should tread with caution. Due to issues with the employer’s duties of health and safety, employees could claim that they are blowing the whistle, and that if they suffer a detriment, could resign in protest and bring a claim of constructive unfair dismissal on the basis of being a whistleblower.
There may be members of staff who refuse to attend the workplace simply out of the fear from catching Coronavirus. It would not be advisable to simply dismiss those concerns, but to listen and resolve them in order to protect their health and safety. Some interim measures such as flexible or home working could be explored. However if there is an outright refusal to attend work, this could result in employers being able to take disciplinary action, but again due to the risk of a tribunal claim, this should be pursued with extreme caution. Communication is vital for employers to help prevent the spread of Coronavirus. Regular updates about what your business is doing to protect members of staff will help, as well as signposting individuals to relevant contacts, explaining the important of discussing matters with colleagues, undertaking regular risk assessments and to put in place contingency measures.
Company shutdown and furlough leave
In light of COVID-19, businesses may be medically advised or informed by the Government to temporarily shut down. Similarly businesses may suffer from a reduction in demand.
One option in such a scenario is to consider short-time working, i.e. a reduction of an employee’s working hours on a temporary basis. Alternatively you could consider laying-off employees, i.e. provide your employees with no work or pay. A further option is to consider furlough leave.
It is important to note employees have the implied right to be provided with pay, and therefore the nonpayment of wages could amount to a breach of contract. However Contracts of Employment may have the express right for employers to lay off employees or to put them on short-time working, or alternatively have an implied right to do so through custom and practice.
Whilst this is simple enough, there are situations where confusion may arise, particularly if an employee has been off work for an unreasonable period of time. As such, a statutory scheme is in place which gives employees the ability to determine whether they have been off work for an unreasonable time, in which case they would be entitled to consider themselves as redundant and claim a statutory redundancy payment.
There is also the statutory guarantee payment (SGP) which entitles employees to a SGP on up to five workless days in a three month period. There is no entitlement to an SGP if an employee has not been employed for more than a month, the employee has unreasonably refused an offer of alternative work or if the employee does not comply with your reasonable requirements.
In light of COVID-19, the Government have introduced furlough leave. Although furlough leave is not a technical term that is used in employment legislation, it is simply a term to describe people who are laid off. It applies to any employees who would have been laid off or made redundant.
In order to be placed on furlough leave, businesses have to designate employees who are affected as “furlough” and notify employees as such. If there is a lay off and short time working clause in the Contract, then they can simply designate the employees as being furloughed and notify them in writing without being in breach of contract.
Once employees have been designated as furloughed, the employer will need to submit information to HMRC portal about their salary entitlements. HMRC will reimburse 80% of the furloughed employee’s wages up to a cap of £2,500 per month.
It is not clear whether a Company has to top up the 20%. Employers may elect to top up the further 20% but they do not have to. If not, check the Contract to see whether employees would be contractually entitled to full salary. If there is, businesses may have to agree a 20% reduction with employees, but again they are likely to accept this rather than be placed in a situation where they have no pay or much smaller amounts of pay.
The scheme will be in place for an initial 3 month period from 1st March 2020 and as such can be backdated for March.
Employment Tribunal claims
The Presidents of the Employment Tribunal have issued guidance, stating that the Employment Tribunal will show significantly flexibility to ensure the overriding objective is maintained, namely dealing with cases fairly and justly. This includes ensuring parties are on an equal footing, being proportionate, avoiding unnecessary formality, seeking flexibility, avoiding delay and saving expenses.
In light of recent guidance, tribunal hearings, including preliminary and final hearings may be heard by electronic communication such as telephone or Skype. Tribunal Orders may also be postponed i.e. deadlines to exchange documents and witness statements, as well as deadlines for submitting ET1s and ET3s being varied if COVID-19 is the reason for the delay, although this will be accessed on a case by case basis.
Discrimination
It is important to emphasise that businesses have a duty under the Equality Act 2010 to not discriminate against members of staff because of a protected characteristic, such as sex, age or race. There has sadly been a significant increase in abuse targeted towards Chinese and Italian nationals in recent weeks. Therefore employers must ensure individuals should not be singled out simply because they have a protected characteristic otherwise this could amount to discrimination.
How can we help you
If you require any advice on any of the employment and HR issues referred to above. The team is on hand to advise and assist. In addition we can assist you in drafting a bespoke Homeworking and/or Coronavirus COVID-19 policy for your business and procedure for your workplace. Please contact Sally Morris on 01905 610410 or at sally.morris@mfgsolicitors.com to discuss this offer further and any frequently asked questions.