13th March 2020
What are employers’ legal obligations in respect of COVID-19?
The Government’s plans to combat the spread of COVID-19
Public Health England (PHE) is currently in the second phase of the Government’s four-part plan to combat the spread of COVID-19:
Currently, individuals are to remain at home for 14 days and limit their contact with others if:
The above categories are frequently changing and following the Government’s emergency Cobra meeting on 12 March, those with a new persistent cough and/or a fever of above 37.8 degrees are to self-isolate for seven days.
Currently the PHE guidance on self-isolation is advisory rather than mandatory but employers may wish to introduce their own rules or issue instructions to their employees in a bid to protect their workforce.
In terms of the legal basis upon which employers can enforce these rules or instructions, many contracts of employment include a garden leave clause which may provide a contractual basis for any instruction to stay at home. In the absence of an express contractual power to require an employee to refrain from attending work, an employee who refuses could be in breach of the duty of trust and confidence and their personal duty under the Health & Safety at Work Act.
Are employees entitled to be paid during the period of self-isolation?
On 26 February 2020, the Secretary of State for Health, Matt Hancock MP, said “self-isolation on medical advice is considered sickness for employment purposes." However, that did not give a clear answer to the question as many employees will not have taken medical advice before having to self-isolate (as is the case with certain categories of people advised by PHE guidance to self-isolate).
Moreover, under many contracts of employment, an employee has no contractual right to sick pay unless they are incapable of work. Statutory sick pay is also only payable in respect of a period of "incapacity for work". ACAS has stated "there is no legal (statutory) right to pay if someone is not sick but cannot attend work because they have been told by medical experts to self-isolate”. However, ACAS also said it would be good practice to pay sick pay as otherwise it could encourage employees to attend work in order to get paid, inevitably leading to the spread of the virus.
In contrast to an employee choosing to self-isolate through their own decision making, or upon medical advice, or in accordance with PHE guidance, if an employer instructs an employee who would otherwise be capable of work to self-isolate they would be entitled to their normal pay for the period of self-isolation. In this situation, the employee’s absence could become a form of suspension (albeit most employers are gearing up to allow working from home where possible).
Ultimately, leaving aside the legal obligations to protect the health and safety of workforces, it is in the wider public interest for employees to be paid during a period of self-isolation (at least statutory sick pay) in a bid to protect society from the spread of COVID-19. The Government has now stepped in to clarify the position and has extended the right to statutory sick pay to anyone self-isolating and that this is payable from day one rather than day four. The Government will also reimburse up to 14 days’ statutory sick pay (currently £94.25 per week, £95.85 as of 6 April 2020) for small employers with fewer than 250 employees.
What should employers do if employees need to take time off because their child’s school or nursery has closed due to COVID-19?
In such circumstances an employee would be able to take time off for dependants, which is a statutory right under Section 57A of the Employment Rights Act 1996. This covers unexpected disruption to arrangements of care for a dependant, an incident at school, or where a dependant is unwell. In order to comply with the requirements of exercising this right, an employee must inform their employer as soon as reasonably practicable of the reason for their absence and for how long they are likely to be absent. There is no statutory right to be paid during such dependants’ leave. However, it may be that an employee has the right to payment under their contract of employment or any relevant company policies or procedures.
What if an employee does not attend work because they are anxious about COVID-19?
Our recommendation would be to listen to their concerns, particularly where an employee might fall within an ‘at risk’ group.
The WHO has indicated people over the age of 60 and those with underlying conditions (such as cardiovascular disease, a respiratory condition or diabetes) have a higher risk of developing severe COVID-19 and should therefore try to avoid crowded places or places where they might interact with people who are sick. An employer should also specifically consider the risks in relation to pregnant women or those with compromised immunity. If an employee is classified as disabled they may also trigger the duty to make reasonable adjustments under the Equality Act 2010.
Where employees have genuine concerns about COVID-19, an employer should offer flexible working arrangements or offer employees the opportunity to take annual leave or a period of unpaid leave. Anxiety could also be created or exacerbated by the outbreak of COVID-19, which could, in itself, render the employee unfit for work in any event and then entitled to sick pay.
What if an employee does not follow COVID-19 hygiene rules?
Where an employer has stated that employees should be following guidance on hygiene (e.g. using alcohol-based hand gels within the workplace, washing hands regularly and thoroughly, using and disposing of tissues, and coughing into the crook of the arm), and an employee refuses to follow such instructions, this could amount to a failure to follow a reasonable management instruction. This could lead to the employee facing disciplinary proceedings.
What if an employer does not follow the COVID-19 hygiene rules or allows employees who should be self-isolating to attend work?
This would potentially infringe the employers’ statutory and common law obligations to protect the health and safety of its workforce and to maintain trust and confidence. This could therefore give rise to a risk of potential claims for constructive dismissal where an employee can establish their employer has not taken reasonable steps to ensure their health and safety.
What about applying attendance management policies to periods of self-isolation?
A number of employers have attendance management policies which provide for staged warnings in the event that employees have unsustainable levels of absence from work. In light of the employers’ obligations to protect the health and safety of their workforce - which could include discouraging employees from putting themselves at risk of spreading COVID-19 - employers should consider modifying their absence management policies so that employees who are at risk of a staged warning do not come into work for fear of being given that warning and potentially spreading COVID-19. This modification should be considered particularly sensitively in respect of any disabled employees, or those with a compromised immune system.
What about work-related travel and overseas assignments?
An employer should seriously consider the benefits and risks of sending their employees to areas where the virus is spreading, especially those who are at higher risk of serious illness. If an employer deems it essential for an employee to travel, the employee should be given as much support as possible, including advice from a qualified health professional about this travel.
What about an employer placing restrictions on personal travel?
A number of employers are currently asking employees to confirm whether they are travelling to any of the ‘at risk’ areas so they can determine who will be away and for how long. It could be considered reasonable to introduce rules or policies which prohibit employees from undertaking personal travel to countries or areas that have a higher risk of COVID-19. However, it may be difficult to justify such restrictions if these countries or areas are not the subject of travel advice from the Foreign and Commonwealth Office (FCO).
However, those employers with particularly strong reasons for ensuring the safety of their employees - for example those who work in health or education sectors, where the risk of the virus spreading is greater - may be able to justify more stringent travel restrictions than those advised by the FCO.
Employers should ensure they are not being directly discriminatory on the grounds of race or nationality, and that any indirect discrimination on those grounds can be justified. For example, while you may introduce blanket restrictions on travel for all employees, those of a different national origin may be more affected by such restrictions, and so this level of intrusion into peoples' travel needs to be justifiable and consistently applied.
Are employers liable for discrimination and harassment by employees?
There have been reports in the media of harassment or discrimination levelled at people of Chinese origin. An employer will be liable for such actions of their employees unless they are able to show they have taken reasonable steps to prevent such conduct. This includes having an equality and diversity policy in place, providing appropriate training, and tackling such inappropriate behaviour.
Please note: Nothing in this article constitutes legal advice and we are not liable for any reliance on the information provided. This is a rapidly changing subject, and whilst correct at the time of writing, circumstances may have changed since publication. Please refer to Gov.uk for up-to-date advice on the Government’s response to this issue.