Whether you are panic buying pasta and hand gel, bemused by all the fuss or somewhere in between, depending on the most recent news article you’ve had flash up on your phone, one thing is clear – Coronavirus or COVID-19 as we now know it cannot be ignored!
On the 30th January the World Health Organisation (WHO) declared COVID-19 a Public Health Emergency of International Concern and the UK Chief Medical Officers raised the UK risk level from low to moderate.
On the 28th February the WHO raised its global risk assessment of COVID-19 from high to very high. Yesterday the Government published its action plan, declaring itself as “committed to doing everything possible based on the advice of our world leading scientific experts to prepare for all eventualities”. However, the “plan”, whilst lengthy, appears to be somewhat light on details – leaving employers and the general public confused as to the most appropriate approach to adopt.
The situation presented by COVID-19 is novel, and one which, if the disease continues to spread, will present on-going challenges for employers and employees – including as a result of disruption to normal working patterns. The Times (04.03.20) reports that “Handshake bans, event cancellations, blanket school closures and other “social distancing measures” are not yet recommended”. However, it goes on to state that “It is unlikely to be long before people are advised to work from home if they can. Families where one member has coronavirus could all be quarantined. People could be asked to reconsider after-work socialising”.
Whilst ministers are planning emergency laws permitting them to compel cancellation of events, impose movement restrictions and enable compulsory quarantining by border officials, which Boris Johnson insisted will be “exceptional and short term” (although intended to be enacted into statute by the end of the month), employers need to be planning their response to the inevitable situations that will arise in the short term and in the coming weeks and months.
In devising that response plan, employers need to have regard to Government guidance and their obligations under:
Health & Safety – The Health and Safety at Work etc. Act 1974 imposes a duty on employers to protect the health, safety and welfare of their workforce and anyone else that may be affected by their business operations. Employers also have a common law duty to take reasonable care for the health and safety of the workforce.
Contracts – express contract terms applicable to the workforce, including under any applicable collective agreements.
Implied Contractual Terms – The duty of trust and confidence implied into contracts of employment and the actions required to ensure that this is maintained.
Anti-Discrimination Legislation – The duty under the Equality Act 2010 (EqA) to make reasonable adjustments in respect of members of the workforce who may be disabled within the meaning of the legislation – and how operating decisions, procedures and requirements may need to adjusted for those who are at higher risk as a result of COVID-19. The duties under the EqA not to discriminate against members of the workforce with protected characteristic – including by actions which are intended to be protective. Their duty to take reasonable steps to prevent harassment or discrimination of employees by colleagues – there have been reports of people of Chinese origin being targeted – and employees may need reminding that harassment (and “banter”) will not be tolerated.
Government Advice – The advice of Public Health England (PHE) in relation to COVID-19, including in relation to self-isolation and hygiene guidance
Not just employees – The duty to consider all categories of staff (including workers) to ensure that proper provisions are implemented – bearing in mind, for example, that whilst sick pay is only payable to employees the whole workforce has rights in relation to health and safety legislation , protection from discrimination and the right to reasonable adjustments.
Hygiene Guidance – wash your hands!
In the first instance all employers should, at the very least, be reminding their workforces of PHE guidance from time to time. They should also consider introducing rules stipulating that such advice must be followed.
Arguably, given the situation, failing to introduce such rules may arguably breach an employer’s duty to protect the health and safety of its workforce – and the risk of claims by staff should they become infected. Indeed it might even be open to an employee to take the view that failing to introduce such rules to protect their health and safety also breaches the duty of trust and confidence which is implied into all employment contracts – leading to allegations of constructive unfair dismissal (whether genuine or opportunistic).
In addition to reminding the workforce of PHE guidance, employers should consider other reasonable steps – such as making antibacterial hand-gel, hand-washing facilities, and tissues readily available, and introducing a mandatory requirement for individuals within the groups determined by PHE from time to time to self-isolate in accordance with applicable guidance.
Self – Isolation
As at 03.03.20 guidance on self-isolation was not mandatory. It was advisory only and provided that individuals falling into specified categories should remain at home for 14 days and limit contact with others. If individuals need to self-isolate but are otherwise well and can work normally from home the impact self isolation may be manageable. However, many individuals simply cannot work remotely – either because their roles are public facing, or they work in frontline or caring services. The current situation is unprecedented and so presents a number of novel conundrums for all employers.
In order to comply with their obligations to protect the health and safety of the workforce, it may well be advisable for employers to issue instructions to the workforce that PHE guidance on self-isolation, as updated from time to time, must be followed, essentially compelling self-isolation in some situations.
Whilst possibly unlikely (depending on determinations in relation to pay – see below), an individual who refuses to self-isolate despite failing into a group advised to do so by PHE would quite probably be in breach of their own obligations to take care of their personal health and safety, the health and safety of others, under the Health and Safety at Work Act etc 1974, justifying disciplinary action.
Given the novelty of the situation most contracts will not contain clauses permitting employers to require staff to remain away from work (save perhaps in circumstances of garden leave after notice has been given or where suspended in connection with disciplinary investigations). Normally failing to provide an employee with work by requiring them to remain away from the workplace would be a breach of contract. However, the unusual circumstances of this COVID-19 outbreak are likely to imply the right for employers to issue such an instruction under the implied duty of trust and confidence.
Pay in circumstances of Sickness / Self-Isolation
Pay is likely to be the thorniest issue for employers – and one which despite Mr Johnson’s statements at prime ministers questions (PMQ) this morning (04.03.20) remains unclear. It will require the careful consideration of employment contracts, policy decisions, commercial considerations and, where applicable, negotiation with works councils or trade unions.
An employee who self-isolates having developed symptoms of COVID-19 is sick, and is entitled to sick pay (whether statutory or contractual) in the same way as for any other period of illness. According to the Independent (04.03.20), Boris Johnson announced during PMQs that “the health secretary will bring forward, as part of our emergency coronavirus legislation, measures to allow for the payment of statutory sick pay from the very first day you are sick instead of four days under the current rules”.
So far, so simple – if you are sick! What Mr Johnson did not expressly address is the situation for employees who do not have symptoms but self-isolate, for example because a family member is unwell. Whilst his opening statement seemed to suggest that self-isolation would be regarded as sickness, saying “If they stay home and if we ask people to self-isolate, they may lose out financially”, it seems that no further clarity was given – so employers need to watch and wait for further clarity or the promised legislation.
The majority of employment contracts only provide for sick pay in the event of incapacity (statutory sick pay legislation references payment in the event of “incapacity to work”) and even before PMQs today (04.03.20) views differed greatly on any entitlement to pay where an individual self-isolates on “medical advice”.
According to Matt Hancock MP, the Secretary of State for Health (26.02.20) “Self-isolation on medical advice is considered sickness for employment purposes” = sick pay payable.
According to ACAS (19.02.20) There’s no legal (‘statutory’) right to pay if someone is not sick but cannot work because … they have been told by a medical expert to self-isolate …” = sick pay not payable.
ACAS recommends that it would be good practice for employers to treat such absence as sickness absence, to avoid someone attending for work and increasing the risk of spread. Mr Johnson’s comments at PMQs rather reinforce that but it still doesn’t answer all the questions arising from the novel concept of self-isolation. But employers will need to consider a variety of factors in determining who is paid what, including whether any contractual sick pay is extended to those who are well but self-isolating, or whether (if legislation so provides) they simply receive statutory sick pay.
Ultimately, unless regulations are made or guidance is issued, the question of pay is going to be a corporate decision – albeit one which may need to be modified on a case by case basis where there is a requirement to make reasonable adjustments for a member of the workforce who is disabled within the meaning of the EqA.
In reaching such decision on pay it is worth considering:
- If an employee is incapable of work, sick pay (whether contractual or statutory) is payable.
- If the individual is not an employee what are their contractual rights to pay? Should these be varied taking into account the employer’s duty to protect the health and safety of its workforce?
- If an employee is capable of work but falls into a category that PHE recommends self-isolate it would seem (based on Mr Johnson’s comments at PMQs today (04.03.20) that statutory sick pay is likely to be payable – and from day one of absence (see above comments).
- Certainly an employer adopting the view (especially in light of today’s comments) that such an employee is not entitled to sick pay, would be treading a very dangerous line and risking arguments that they have encouraged employees to place the health and safety of themselves and their colleagues at risk, breaching health and safety legislation – leading to potential claims for breach of contract and unlawful deduction from wages.
- Importantly, applying a provision of non-payment in relation to workers who are high risk (perhaps even where those individuals do not fall into a PHE recommended self-isolation category but are at greater risk than most) because they have a protected characteristic (for example are either older members of the workforce or are disabled within the meaning of the EqA) would be likely to amount to indirect discrimination and for disabled employees also a failure to make reasonable adjustments.
- If an employee is capable of work but are not in a PHE recommended self-isolation category but their employer requires them to self-isolate, such an instruction would (in the absence of any regulations to the contrary being issued by Government) legally amount to suspension, for which the employee is entitled to be paid their normal pay. Payment of only statutory sick pay would therefore be an unlawful deduction from wages – whereas it would not be for PHE recommended self-isolation – assuming the government follows through on the apparent spirit of Mr Johnson’s statements today (04.03.20) at PMQ.
- If an employee takes time off to care for a dependant who has fallen ill, as opposed to self-isolating to limit infection spread, they would be entitled to that time off under the Employment Rights Act 1996 s57A1(a) to “provide assistance on an occasion where a dependant falls ill”. However, such time off, unlike periods of incapacity due to sickness, is unpaid.
- The situation is complicated further should, for example, an employee elect to self-isolate because a family member falls into a category recommended to self-isolate by the PHE and they have had contact, meaning that the employee falls outside of applicable guidance but could still be said to be acting reasonably.
Closure of Childcare Facilities
In the event of the closure of a school or nursery, or indeed a nanny or child-minder being unable to provide care because of COVID-19, an employee’s statutory right to time off to care for a dependant “because of the unexpected disruption or termination of arrangements for the care of a dependant” would apply (s57A(1)(d)) Employment Rights Act 1996).
The time off is unpaid and designed to address short periods of absence – and so again it would fall to employers to decide how to treat the time – remembering that whilst the financial impact of continuing to pay one employee may be minimal, precedents may well be set, escalating the cost dramatically if more employees are affected or there are repeated periods of closure and absence.
Refusal to Work
It is fairly easy to envisage situations where employees do not wish to attend for work for fear of exposing themselves to a risk of contracting COVID-19 through colleagues, as a result of a public facing role, or as a result of using public transport. Employers will need to by sympathetic to such views, listen to, and carefully consider, any such concerns raised, particularly where, for example the individual in question fall into higher risk category:
- The WHO has advised people over 60 years old, or those who have an underlying health condition which may predispose them to a high risk of developing severe COVID-19 symptoms and complications, to avoid crowded areas or places where they might be more likely to be exposed to those already infected. Concerns raised by a person in such a category may therefore have more weight than the concerns of others. Employers may need to consider adjusting working times to avoid peak crowding on public transport, alternative working methods or locations or permitting time off work. In such circumstances it is arguable that salary would probably need to be continued in the majority of situations depending on risk levels and length of absence.
- Individuals who may be disabled within the meaning of the EqA as a result of a compromised immune system have the right to have reasonable adjustments made to their working arrangements – this could include not attending for work if they may be at greater risk of infection. Full pay would probably need to be continued in the majority of situations depending on risk levels and length of absence in order to avoid claims of indirect discrimination.
- Employees suffering from anxiety may find their anxiety exacerbated by fears of COVID-19 infection, which could, of itself mean that they are unfit to work and therefore entitled to be absent by reason of incapacity and paid accordingly.
It may be that employers can consider flexible working arrangements, periods of unpaid or paid leave to alleviate such concerns where particular circumstances so merit it. But such situations may well need to be addressed on a case by case basis.
In the event of a government issued mandate to limit or prohibit public gatherings, larger employers may be forced to close workplaces – and it may be that guidance or regulations on pay etc. will be issued in such event. However, it is probably more immediately important to consider what the approach should be if a staff member is taken ill and tests positive for COVID-19. We have already seen a number of workplaces close for deep cleaning as a result.
Most employment contracts do not contain “force majeure” clauses, permitting the contract to be temporarily suspended in the event of the order of a public authority to close the workplace. Even if they do, this does not address the situation of a member of staff testing positive or a member of the public notifying an employer that they visited the workplace and have since tested positive. Such a closure, whether to deep clean the premises or to self – isolate numerous staff members to limit spread risk, would most likely be outside of the scope of a contractual force majeure definition in any event.
If an employer elects to close a workplace, for example in order to deep clean, it is likely that all staff will remain entitled to full pay – on the basis that they are essentially being temporarily “suspended” from work. If a closure is for a short period and, for example, the deep clean can be undertaken overnight outside of working hours that may be less problematic. However, what happens if there are numerous infections, even one after the other requiring longer periods of closure?
Employers need to be giving thought to any requirements they have for staff to travel or work overseas. For those individuals who may be at higher risk of infection, the WHO has advised that employers do not send them to areas where the virus is spreading – a difficult assessment in circumstances where the virus is spreading rapidly in so many countries. Sending an individual (whether high risk or otherwise) to a location where they risk a serious infection will be a breach of an employer’s duty to protect the health and safety of that employee. Add to that the potential infection risk to the wider workforce of returning employees and it is easy to see why businesses are prohibiting all but the most essential travel.
It will be rare that an employment contract contains a provision permitting an employer to restrict personal travel but it is something that employers, particularly those where staff are public facing or in frontline services such as healthcare or education should carefully consider. An employer’s duty to protect the health and safety of other staff (and indeed the wider public that staff may come into contact with), may mean that such a restriction is reasonable – albeit one which may open a can of worms from an insurance / loss perspective!
Restrictions will clearly be easier to justify if restrictions on travel are advised by the Foreign and Commonwealth Office (FCO) – but for those employers who have greater reasons to ensure that employees are not infected, restrictions to other countries where such advice has not been issued but cases of COVID-19 are reported, may also be justifiable.
It is likely that restrictions will have to be considered on a case by case basis, with employers taking care to ensure that decisions are not discriminatory (directly or indirectly).
Employers need to bear in mind their EqA obligations when considering what steps to take in response to COVID-19. Treating one group of individuals differently because of a protected characteristic – however well meant – may give rise to claims of discrimination, either from that group or from co-workers. However, equally, an obligation to make reasonable adjustments can only be met if one is aware that it needs to be – raising the question of whether staff should be instructed or encouraged to raise concerns about COVID-19 infection risk with their employers. In any event, all employers should also give careful consideration to appropriate reasonable adjustments for staff that may be disabled within the meaning of the EqA. For example by considering whether policies in relation to working from home, acceptable levels of absence, sick pay etc should be adjusted for those groups.
Watch and Wait
Employers, like the rest of the world, need to consider the evolving situation, issue appropriate guidance and instructions, plan, in so far as they can so that any issues arising can be address promptly, but then watch, wait and react accordingly. One plan will not fit all. Indeed an employer’s current plan is unlikely to fit should risk factors change and PHE advice alters. One thing, however, is clear – given an employers duties to protect health and safety doing nothing is not an option.
Please contact the employment team at Magrath Sheldrick LLP for further guidance.
The contents of this article are for information purposes only. The information and opinions expressed in this document do not constitute legal advice and should not be regarded as a substitute for legal advice. No liability is accepted for opinions contained or for any errors or omissions.