As the spread of the novel coronavirus Covid-19 continues to accelerate, employers are facing significant challenges to their business and their workforce. Employers are faced with an onslaught of employment law changes - to statutory sick pay and holiday carry over as well as the hot topic of the moment, furlough.
It is essential for employers to plan appropriately for contingencies both to discharge legal duties to employees and the public and to minimise business disruption.
1. What steps should employers be taking?
It is important for employers to:
2. What health and safety measures should employers take?
Risk levels for Covid-19 will vary for different work environments and employers should conduct a risk assessment to identify and implement appropriate risk mitigation measures.
At the time of writing, there is no vaccine for Covid-19 (though scientists are working to develop one). The best way to prevent infection is to avoid being exposed to this virus. While there is currently no scientific consensus on how Covid-19 is transmitted, conventional methods for avoiding the spread of flu and the common cold apply.
It is sensible to remind staff of basic steps that can be taken to guard against illness, such as Public Health England’s "Catch it, Bin it, Kill it” method of preventing influenza and other communicable illnesses (“Catch” any sneezes in a tissue, “Bin” any tissues immediately and “Kill” the virus by washing hands with soap and warm water).
Where businesses remain open, employers may also want to provide additional cleaning materials in the workplace (tissues, hand-sanitizer, cleaning wipes, and so on) to encourage employees to take preventative steps.
Further information is available in the UK Government Guidance for Employers.
Additional considerations apply where employers are aware that particular employees may have increased vulnerability to Covid-19, such as pregnant workers or those with pre-existing respiratory problems or compromised immune systems. In these cases, a specific risk assessment should be undertaken and reasonable protective steps taken, in consultation with the staff involved and with occupational health input where appropriate.
For pregnant employees, where changes to working conditions cannot adequately mitigate risk, the employer may need to offer temporary alternative employment or suspend the worker on medical grounds (with full pay).
3. Do employers have to pay staff who are off work due to Covid-19?
A number of changes to the statutory sick pay (SSP) regime have been implemented which, in broad terms, relax the SSP rules to encourage employees to stay at home if they are at risk of spreading Covid-19.
The position is summarised in the table below.
Aside from strict legal entitlements, employers will be wise to consider broader policy objectives in determining whether to pay staff. While press coverage indicates a wide divergence in practice between large employers, strict adherence to the legal rules may prove to be a false economy compared to the cost of triggering a workplace closure.
UK rules entitle employees to SSP (£95.85 from 6 April 2020) provided certain conditions are met.
The changes to SSP include:
Entitlement to any sick pay in excess of SSP will be determined by the contract of employment of the relevant employees.
*The position may be different in parts of the UK outside England
4. Can employers use a “lay off” to send staff home temporarily without pay?
In general, UK employees cannot be “laid-off” without pay unless specific provisions are contained in their contract of employment. It is rare that contractual provisions of this type are in place and there are statutory constraints on how they can be used.
Employers may nevertheless be able to make use of the government’s Coronavirus Job Retention Scheme to place employees on ‘furlough’ but should be conscious that employee consent will be required in most cases if employment contracts do not include specific “lay off” clauses.
Under the Coronavirus Job Retention Scheme, the UK government will pay 80% of an employee’s wages if the employee is temporarily suspended without work due to Covid-19 (“furloughed”), up to a maximum of £2,500 per month. Only employees who were on payroll as at 28 February 2020 will be eligible for furlough. Employers can also claim for reimbursement of employer National Insurance Contributions and mandatory employer auto enrolment pension contributions associated with that 80% of wage costs. The employer can choose to top-up wages in part or full if they wish. Employers are being encouraged to consider furlough instead of making redundancies if they are experiencing a business downturn.
5. Should employers cancel or defer business travel?
Foreign Office (FCO) guidance on travel should be checked regularly here. At the time of writing the FCO advice is to not travel abroad unless essential. There are certain areas where the FCO advises against all travel.
For the areas where the FCO is advising against all travel, business trips obviously should be cancelled or postponed. Failure to do this is likely to breach duties to the employee in question and potentially the broader workforce and others.
For the areas where the FCO is advising against all but essential travel, business trips should be cancelled or postponed, if possible. This decision will require a balancing of all relevant factors, including the destination, business needs and an individual employee’s circumstances and concerns. Employees should be directed to follow self-isolation guidance in all cases.
Employers should take particular care in respect of travel if the employee (or someone they live with) is at higher risk of becoming seriously ill if they are exposed to Covid-19 because of age, pregnancy, or a pre-existing medical condition such as respiratory problems. A list of those considered to be particularly vulnerable to Covid-19 is included in government guidance here. Employers should consult with the individual, their doctors, and in some cases, an occupational health specialist to assess whether travel can safely proceed.
6. How should employers communicate with staff?
Employers should consider in advance and notify staff of their general approach to company sick pay including self-isolation within UK Government guidance. Additional communications on the approach to office closures, home working and absence through school closures may also be sensible.
Employers should communicate with staff in an accurate and even-handed way. This may be a stressful situation for some employees and employers should avoid unnecessarily causing undue anxiety. In particular:
7. Can employers send home employees who are at high risk of carrying Covid-19?
Employees should be sent home if their circumstances fall within current UK Government guidance triggering self-isolation (see UK Government Guidance for Employers) or who are otherwise advised by PHE or a doctor to self-isolate until they have been advised by doctors that the incubation period is over and all symptoms have cleared. There is a theoretical risk that sending an employee home when they are medically fit to work may be a breach of contract or even constructive dismissal. However, the practical risk of a successful claim being established is outweighed by the risks of allowing the employee to attend work.
Sending employees home in circumstances where UK Government guidance does not currently recommend self-isolation carries a higher risk and further advice should be sought.
8. What personal information can employers collect and share about employees who may be carrying Covid-19?
Collecting and sharing information about the health of a worker is highly regulated under UK and EU law, including under the General Data Protection Regulation (EU) 2016/679 (GDPR).
Of course, if an employee is suspected of carrying Covid-19 then risks of immediate harm to your employees and public health, and of breaching the duties of care that you owe to prevent that harm, may need to take precedence over data protection considerations. But advance consideration of the issues may help you mitigate risk.
Employers should take heed of recent guidance from the UK Information Commissioner’s Office (ICO) stating that the ICO will be taking a more relaxed approach (within reason) to enforcement of GDPR in the UK as the Covid-19 pandemic continues. In particular, the ICO will relax the timeframes necessary to respond to information requests such as data subject access requests. Though this pragmatic approach by the ICO is welcome, it does not give employers a free pass to ignore data protection laws entirely and a reasonable approach should be taken. The ICO’s full guidance is available here.
Employers should continue to consider these headline points on GDPR compliance during the Covid-19 outbreak:
9. Can employers take action if employees do not perform their duties without good reason?
It is likely that some employees will be unwilling to attend work or undertake business travel to regions currently considered safe, due to fears about Covid-19. Where these actions are outside the recommendations of UK Government guidance, they potentially amount to a breach of contract by the employee and grounds for disciplinary action.
However, knee-jerk reactions by employers are still likely to attract legal liability. In all cases, employers should speak to staff, try to understand and address their concerns and reach a sensible compromise. Consideration should be given to whether any special factors exist relevant to that employee that merit different treatment.
Any disciplinary action should involve an appropriate process in line with ACAS guidance.
10. Can employers stop employees from taking holidays to high-risk areas?
This is a grey area. Employers do not have a clear right to restrict travel to high-risk areas outside working time. However, employees can be required to notify travel to these areas to their employer and could potentially be required to take extra holiday or unpaid leave to cover any consequent self-isolation period. If the resultant extended period of leave is more than the employer can accommodate, then it may be possible to refuse the leave.
Consideration will need to be given to whether implementation of any such policy is indirectly discriminatory (see question 11 below).
11. Does Covid-19 present discrimination risks?
Employers should be conscious of the risks of discrimination in how both they and employees respond to Covid-19.
There have unfortunately been reports across the world of racist abuse being directed at those perceived to be Chinese. Employers may be liable for the discriminatory acts of employees and should be vigilant. If needed, employers should remind employees of their equality obligations by reference to appropriate policy documents and should take swift action if problems arise.
Any policies in response to Covid-19 should apply to all employees and be based on potential risks, as assessed in line with official guidance, otherwise employers risk direct discrimination claims. For example, if an employer were to target Chinese employees for additional precautions, rather than those with recent travel links to affected areas, this would be a very significant discrimination risk.
A policy requiring employees without symptoms who have recently travelled to certain countries to remain at home for 14 days may be indirectly discriminatory. This will be the case if it disproportionately affects staff of a particular ethnic origin (such as those whose nationality or ethnicity is linked to those countries). The same may be true of policies described at question 10 above). It will however be open to an employer to argue that the policy was a justifiable and reasonable step to take. Where policies are in line with UK Government recommendations, employers are very likely to be able to succeed in this argument. However, precautionary measures that exceed UK Government guidance should be carefully scrutinised to ensure that they are legitimate and proportionate.
Employers will also need to ensure that their decisions are consistent and proportionate in respect of home working, sick pay and action in respect of employees who do not attend work for reasons other than actual or suspected infection.
12. Where can employers find additional information?
If you need guidance on employment issues related to Covid-19, please contact your usual GQ|Littler contact.