In this edition, we look at some of the issues that employers may face in light of the increasing spread of Coronavirus in relation to their workers.

Sources of information on COVID-19

As news surrounding Coronavirus (COVOD-19) increasingly engulf our smartphone news-scroll, we take the opportunity to set out some practical points for employers from an employment law perspective but with one big caveat – the situation is constantly evolving so do take precaution when acting on employment issues and seek proper and timely legal advice if there is any doubt.

This is not intended to be a comprehensive guide. GOV.UK page on Coronavirus is being updated regularly and the World Health Organisation guidance may also be helpful so be on the lookout for information from these pages. NHS has recently published information about COVID-19 which is worth a quick look, and more relevantly for employers ACAS has published advice on the issue (both for employers and employees) which you may find helpful.

Frequently asked questions (FAQs) for employers

  • What if employees do not wish to go to work because of the fear of Coronavirus?

If an employee raises concerns about this, employers should listen to the concerns any staff may have. If concerns are genuine, the employer could offer flexible working where possible such as homeworking.

If the employee refuses to work even after having been offered alternative ways of working that assuages their concerns about Coronavirus and they have no symptoms themselves, then there would be no obligation to pay them during their absence and, furthermore, disciplinary action may be warranted for refusing to come to work without good reason.

  • What if employees self-isolate because they have visited a high risk area but show no symptoms?

ACAS guidance says there is no requirement to pay them as they are not showing symptoms i.e. they are not sick. But it may be good practice for employers to treat it as sick leave and follow their normal sick pay policy or to offer the employee to take the period as paid annual leave.

On 3 March 2020, the government has announced an action plan which stated, among others, that those workers who self-isolate will get their statutory sick pay from day 1 as opposed to from the fourth day under the current SSP scheme.

  • If the employee is suffering from Coronavirus, do we have to pay them?

Obviously, if an employee is unable to come to work because they are suffering from Coronavirus then this would amount to sickness, and therefore they should receive their sick pay in accordance with the employer's sickness policy.

  • Do we have to pay sick pay to those we asked not to come in because of their recent travel to affected areas?

If an employer asks an employee to self-quarantine for a period of time due to their travel to affected areas, the employee should get their usual pay.

But the employee may regard this as an unlawful suspension – see the next question below.

  • Can an employer suspend an employee suspected of having coronavirus and, if so, what pay are they entitled to?

We start this question with a qualification – we do not take the view that asking an employee not to come to work (or ask them to stay at home) because they have visited affected areas amounts to suspension in the first place. However, if such a request would amount to suspension we deal with whether such 'suspension' may be lawful.

This is a complicated issue: employers should check whether there is an express right to suspend in the employment contract (although it is highly unlikely that the contract would cover the scenario of Coronavirus). We take the view, on balance, that so long as the request to the employee to stay at home is due to the fear of spreading the disease, and the employer is under duty to protect the health and safety of all of its employees, it would not be a breach of the implied term of the contract to 'suspend' an employee in these circumstances. There must also not be discriminatory motives behind the suspension. The employee should, ordinarily, continue to be paid as normal during their period away from work in this scenario.

Other steps for employers to take

We recommend the following general steps in line with ACAS advice:

  • Keep everyone updated on actions being taken to reduce risks of exposure in the workplace
  • Make sure everyone's contact numbers and emergency contact details are up to date
  • Make sure managers know how to spot symptoms of coronavirus and are clear on any relevant processes such as sickness reporting or sick pay
  • Make sure there are clean places to wash hands with hot water and soap, and encourage everyone to wash their hands regularly
  • Give out hand sanitisers and tissues to staff, and encourage them to use them
  • Consider if protective masks might help for people working in particularly vulnerable situations
  • Consider if any travel planned to affected areas is essential