The landscape in relation to COVID 19 is constantly changing as governments reach decisions on what they believe to be best for their citizens. Along with the immediate health (and health and safety) considerations, the long term economic impact is not something that any employer can ignore – if businesses fail many vulnerable people relying on income from those that end up out of work will suffer.
Most businesses are in the process of implementing some form of “disaster recovery” strategy to address the potential impact of illness, self-isolation, school closures, travel restrictions and any social distancing measures that the government decides to introduce. How a business balances the potential economic impact and what is paid to staff is going to be a commercial decision, but one which is influenced by legal requirements.
In devising a response plan, employers need to have regard to government guidance from time to time and their obligations under:
- Health & Safety Legislation – 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.
- Contractual Provisions – 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 – Including:
- 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 duty under the EqA not to discriminate against members of the workforce with protected characteristic – including by actions which are intended to be protective.
- The 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 from Time to Time – Government advice from time to time in relation to COVID-19, including in relation to self-isolation and hygiene, sick pay and travel.
- Not Just Employees – The duty to properly 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.
Absence & Pay Entitlements
Pay is likely to be the thorniest issue for employers and one which employees are most concerned about. 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 is sick
An employee who is unwell or who self-isolates having developed symptoms of COVID-19 is “sick”. They are entitled to sick pay (both statutory and / or contractual as applicable) in the same way as for any other period of illness.
An employee who self isolates following government guidance is entitled to statutory sick pay in the same was as if they are unwell. However, that is not the same as being entitled to contractual sick pay, which may provide for the continuation of normal salary for a period of time.
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” albeit that definition has been extended by government guidance to also include self-isolation) meaning that whilst statutory sick pay is payable for those who are self-isolating in accordance with government advice, contractual sick pay may not be.
Ultimately, unless regulations are made or guidance is issued, the question of company sick 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 capable of work but falls into a category that government recommends self isolates – statutory sick pay is payable. Contractual sick pay may, or may not, be payable depending on the wording of the employee’s contract. If the wording indicates that company sick pay is payable if the employee is “off sick”, then such pay is not payable in relation to self-isolation, unless the employee is also unwell.
- Whether companies wish to extend company sick pay to also cover employees who self-isolate but are otherwise well, is a matter for the employer. Where the employee can work from home many businesses are permitting homeworking during self-isolation in an effort to maintain pay. However, quite obviously there are many, many businesses where work simply cannot be done remotely.
- It is important to consider that applying a provision of non-payment in relation to workers who are high risk (perhaps even where those individuals do not fall into a government 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. For employees with protected characteristics (older / disabled) employers may wish to consider continuing company sick pay – irrespective of whether the employee can work or not.
- If an employee is capable of work and is not in a government 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, if the employee has a contractual right to company sick pay in such circumstances, would therefore be an unlawful deduction from wages.
- 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 normally only 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” – such absence is normally. However, if the care of that dependant also places the individual into a self-isolation category, that employee will also be entitled to statutory sick pay.
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 government guidance on self-isolation, as updated from time to time, must be followed.
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 by government to do so 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.
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). Unless that employee also meets the requirements for self-isolation they will not be entitled to pay, unless government guidance changes – which it may do if school closures are ordered by the government.
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, contact with the public or as a result of a public facing role, use of public transport. Employers will need to be 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:
- Individuals who may be disabled within the meaning of the EqA 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 one would hope that guidance or regulations on pay etc will be issued in such event.
Most employment contracts do not contain “force majeure” clauses, permitting the contract to be temporarily suspended or ended 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 temporarily, 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?
If an employer elects to close a workplace for a longer period of time – usual redundancy procedures will apply and advice should be sought on a case by case basis, including in relation to the duration of any closure and the rights of employees in all the circumstances.
Lay-Off & Short Time Working
Employers considering laying off their workforce, or reducing working hours should consider whether they have the contractual right to do so. Most employment contracts do not contain such a right – and so in those circumstances an employee would be entitled to treat the lay-off or reduced hours as a breach of contract and bring a claim of constructive unfair dismissal. Whilst employees may be unlikely to take issue if pay is maintained, that is not the point of lay-off or short time working, both of which are utilised by employers to save salary costs where there is insufficient work to be performed by the workforce.
Employers considering lay-off or short-time working should carefully check employment contracts, and collective workplace agreements (where such provisions are more likely to be found) before reaching any decisions.
If employers have the contractual right to do so and are considering implementing lay-off or short-time working appropriate advice should be sought as to procedure, employee rights and minimum payments required to be made during the applicable period.
Lay-off and short-time working may be areas that the government will consider addressing in future guidance in order to alleviate pressure on small businesses – however that remains to be seen!
Health & Safety Guidance
All employers should:
- Be reminding their workforces to follow government hygiene guidance from time to time and consider introducing rules stipulating that such advice must be followed.
- Consider making antibacterial hand-gel, hand-washing facilities, and tissues readily available.
- Consider introducing a mandatory requirement for individuals within the groups determined by the government from time to time to self-isolate in accordance with applicable guidance – although also then consider the pay implications (see above).
- Recommend that fewer face to face meetings take place – replacing them with telephone or technology based virtual meetings instead.
- Consider whether advice to visitors should be posted at the entrance to workplaces, together with anti-bacterial hand gel, to remind them of government guidance, and to use the gel provided etc.
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 World Health Organisation 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!
Employers may wish to consider whether they can revoke holiday requests (which may be permissible, subject to appropriate notice) to areas where the virus is spreading – particularly if such a period of holiday may result in self-isolation afterwards. Again employers will need to consider the potential loss to employees and whether or not insurance will cover that loss if the travel is cancelled as a result of the employer’s requirements rather than government guidance.
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 re-act accordingly. One plan will not fit all. Indeed an employer’s current plan is unlikely to be fit should risk factors change and government guidance alter.
The contents of this briefing 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 the opinions contained or for any errors or omissions.