Coronavirus (COVID-19) - Q&A for Employers

In times of uncertainty, our Employment Team has pulled together helpful Q&A for employers.

Government and Acas Guidance

The COVID-19 pandemic is continually changing and the Government and Acas advice for employers is being updated as the situation develops. Employers should keep track of the guidance for employers from the following sources:

• Health Protection Scotland: COVID-19: Information and Guidance for Non-Healthcare Settings https://www.hps.scot.nhs.uk/web-resources-container/covid-19-guidance-for-non-healthcare-settings/ )
• Acas: Coronavirus: advice for employers and employees (https://www.acas.org.uk/coronavirus )

For information on the circumstances in which individuals should self-isolate see the following sources:

• Health Protection Scotland: Coronavirus (COVID-19)    (https://www.hps.scot.nhs.uk/a-to-z-of-topics/wuhan-novel-coronavirus/ )
• NHS Inform: Coronavirus (COVID-19) (https://www.nhsinform.scot/illnesses-and-conditions/infections-and-poisoning/coronavirus-covid-19 )

Statutory Sick Pay (SSP) and COVID-19

• In what circumstances is SSP payable?

In order to qualify for Statutory Sick Pay (SSP) an employee must be absent from work due to incapacity. If an employee, following the guidance set out above, is experiencing any symptoms of the virus, and either decides to, or is advised to self-isolate, then it is likely that their absence will be regarded as an incapacity and they will be eligible for SSP.

Regulation 2 of the Statutory Sick Pay (General) Regulations 1982 (SSP Regulations) provides for certain types of absence to be deemed days of incapacity. Regulation 2 has been amended by the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020, so that with effect from 13 March 2020 a person is deemed incapable of work where “he” is:

“isolating himself from other people in such a manner as to prevent infection or contamination with coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales and effective on 12th March 2020.”

• What changes to the normal rules on SSP and fit notes have been made in light of COVID-19?

Following an announcement in the March 2020 Budget, the SSP deemed incapacity rules have been extended to cover those who self‑isolate in accordance with Government guidelines.

The Government indicated an intention to extend SSP to those caring for any individual(s) within the same household who were exhibiting symptoms of COVID-19, but this is not explicitly covered in the new regulation 2(1)(c). The carer would only be covered by the new rule on deemed incapacity if the public health guidance also required them to self-isolate.

Forthcoming changes

As a result of the COVID-19 outbreak, the Government has announced that it will bring forward emergency legislation temporarily making statutory sick pay payable from the first day of sickness absence.

The Government has also announced that small employers (with fewer than 250 employees) will be reimbursed for any SSP paid to employees in respect of the first 14 days of sickness related to COVID-19.

In the March 2020 Budget, the Government also announced that a temporary alternative to the fit note will be introduced in the coming weeks which can be used for the duration of the COVID-19 outbreak. This system will enable people who are advised to self-isolate to obtain a notification via NHS 111 which they can use as evidence for absence from work, where necessary. This notification would meet employers’ need for evidence, whilst taking pressure away from GP Practices.

• Is an employer entitled to send an employee home from work to self-isolate?

If the workplace and the nature of the role allow for remote working then this may provide the employer with an alternative to instructing the employee to self-isolate.

If there is an identified risk that an employee may have been exposed to COVID-19, then it is understandable, in light of an employer’s duty to protect the health and safety of other employees, that the employer would wish to keep that employee away from the workplace until the risk has passed.

Ultimately, the employer may regard the risk of allowing the employee to remain at work as outweighing any employment law risk which could exist in forcing them to work from home.

From an employment law perspective, the employer should consider whether it has an express right to require the employee to stay at home. If not, the question is then whether there is an express or implied right for the employee to attend work in these circumstances. It would be unusual for the employer to have provided the employee with an express right to attend work regardless of circumstances, and there is no general implied term requiring an employer to provide work provided it continues to pay the employee’s wages

It is therefore unlikely to be a breach of implied duties to require an employee to stay at home in these circumstances, assuming there are reasonable and non-discriminatory grounds for concern, and the matter is dealt with proportionately and sensitively. The employee would, however, remain entitled to full pay.

• If an employer sends an employee home from work to self-isolate, what pay are they entitled to?

An employee’s right to pay if their employer sends them home from work will depend upon the precise circumstances of that decision.

If the employer is following Government guidance in sending employees home, then the deemed incapacity rules of SSP will apply and the employees will be entitled to receive SSP.

Alternatively, if the employer is taking precautionary measures and insisting that the employees do not come to work, then it is likely that the employees would remain entitled to their normal pay.

• If an employee refuses to attend work due to fears about coronavirus, what action can the employer take and what pay is the employee entitled to?

If the employee can work from home then this may well resolve the issue. If not, the employer would need to consider current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working. On the basis of the information, the employer can decide to take disciplinary action, or withhold pay in light of the employee’s refusal.

If there is no discrimination angle, and the public health advice is such that the employee could reasonably be asked to continue to attend work then it is possible that the employee could be investigated for misconduct in terms of their refusal to follow a reasonable management instruction, and their unauthorised absence.

If the absence is unauthorised then the employee would likely not be entitled to pay as they are not willing to attend work.

• In what circumstances could holiday be used by workers to cover periods of absence?

The normal rules on taking annual leave under the Working Time Regulations 1998 will continue to apply. Workers may wish to take annual leave as an alternative to scenarios where they would otherwise be on SSP or nil pay. Workers are entitled to take statutory annual leave during sickness absence but may not be compelled by the employer to do so.

Workers who are not on sick leave can be instructed to take statutory annual leave by their employer, provided that they are given the required level of notice (which is double the period that you want them to take holiday leave, i.e. if you want them to take 5 days holiday, you need to give them 10 days’ notice).

Employer’s duty of care

• What health and safety obligations does an employer have in a pandemic?

Useful advice is set out in the Government guidance for employers as set out above, as well as the World Health Organisation (WHO) guidance, Getting your workplace ready for COVID-19 (https://www.who.int/docs/default-source/coronaviruse/getting-workplace-ready-for-covid-19.pdf?sfvrsn=359a81e7_6).

• What should an employer do if an employee starts displaying symptoms at work?

The Government guidance advises that if the employee has not been to one of the high-risk specified areas in the last 14 days, then work can continue as normal. However, if the employee has travelled to one of the affected countries in the last 14 days, they should be removed to an area which is at least two metres away from other people. If possible, this should be a room or area where they can be isolated behind a closed door, such as a staff office. A window should be opened, if possible, for ventilation.

The guidance advises that the affected employee should call NHS 111 from their mobile, or, alternatively, 999 should be called if it is an emergency (if the employee is seriously ill or injured or their life is at risk) and explain which country they have returned from in the last 14 days and outline their current symptoms.

While the employee waits for advice from NHS 111 or an ambulance to arrive, they should remain at least two metres away from other people. They should avoid touching people, surfaces and objects and be advised to cover their mouth and nose with a disposable tissue when they cough or sneeze and put the tissue in a bag or pocket then throw the tissue in the bin. If they do not have any tissues available, they should cough and sneeze into the crook of their elbow.

If the employee needs to go to the bathroom while waiting for medical assistance, they should use a separate bathroom if available.

Both the Government guidance and the Acas guidance are updated frequently and employers would be advised to check the online versions for the latest advice.

• At what point should an employer close the workplace?

The Acas guidance advises that if someone with COVID-19 comes into a workplace, the workplace does not necessarily have to close.

• Can employers lawfully conduct temperature checks on employees, workers or visitors?

An employer cannot require an employee, worker or visitor to their premises to undergo a medical examination without their consent. This would include taking temperatures. To proceed without consent could potentially be a repudiatory breach of contract in respect of employees, entitling them to claim constructive dismissal, and assault in relation to any individual.

However, on a practical level, if the nature of the employer’s business is such that it considers it would need to temporarily close or send employees and workers home during a pandemic unless it undertook such health checks, consent may not be an issue.  On a personal level, employees and workers may be reassured that the employer is taking steps to protect their health in the workplace, as long as testing is carried out on all staff and visitors without exceptions, and appropriate hygiene safeguards are in place.

• If an employee refuses to attend work because they have a disability which they believe puts them at high risk of serious illness if they catch COVID-19, can an employer dismiss them, or if not, what pay are they entitled to?

People who suffer from certain health conditions are at higher risk of serious illness or death if they contract COVID-19. A requirement imposed by an employer to continue travelling to and attending work, or to not pay or to dismiss them due to their absence in this scenario, could amount to discrimination. In addition, if the reason the employee self-isolates is because of a disability that puts them into a high risk category such as an auto-immune disease or a respiratory condition, disability discrimination issues may arise.

Indirect discrimination. There may be a case that the employer’s provision, criterion or practice (PCP) of requiring all employees to continue to attend work in a pandemic could be indirectly discriminatory against the employee and those who share the employee’s disability. In such a case, the employer should consider whether the PCP can be justified as a proportionate means of achieving a legitimate aim.

Discrimination arising from disability. Discrimination arising from disability occurs where both:

• A treats B unfavourably because of something arising in consequence of B’s disability.
• A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

Where an employee self-isolates because of their disability and their employer treats them unfavourably because of this by not paying them or dismissing them for unauthorised absence, the employee could have a potential claim. The employer’s actions would be because of “something arising in consequence” of the employee’s disability (the employee’s decision to self-isolate).

The employer may, however, escape liability if it can show that:

• It did not know, and it was not reasonable for it to know, that the employee was disabled; or
• Its treatment of the employee was a proportionate means of achieving a legitimate aim of, for example, maintaining staffing levels in its workplace to meet customer demand.

Reasonable adjustments. An employer may be liable for a failure to make reasonable adjustments if it does not facilitate a disabled employee’s request to work from home in a pandemic. However, where the employee’s role is not suitable for remote working, it will not necessarily be a failure to make a reasonable adjustment for the employer to not continue to pay a disabled employee who self-isolates before seeking medical advice.

• How should an employer deal with an employee who has severe anxiety and is afraid to attend work?

An employer should be sympathetic to any concerns staff may have and try to resolve the concerns to protect the health and safety of the employee. For example, if possible, the employer could offer flexible working, or allow the employee to take holiday or unpaid leave.

An employee with severe anxiety may find their condition is exacerbated by travelling or being in public places due to the increased risk of contracting COVID-19. If their anxiety prevents them from attending work in these circumstances, it is possible that they may be regarded as on sick leave and therefore entitled to SSP or contractual sick pay, however only if they have the appropriate medical certification.

Where an employee suffers from severe anxiety, this could amount to a disability. Medical advice should be sought as soon as possible from a specialist treating the employee, or occupational health, to determine whether the employee is disabled (if there is no recent diagnosis) and, if so, to see what adjustments, if any, should be made to assist the employee in continuing to work, such as home working or flexible hours.

• What about non-disabled but high risk employees who choose to self-isolate?

Some employees may fall into a high risk category in relation to COVID-19 but are not disabled. The World Health Organisation (WHO) has identified that those aged over 60, or who suffer from cardiovascular disease, a respiratory condition, diabetes, an autoimmune condition or who are pregnant, are at a higher risk of developing more severe symptoms.

Such employees may wish to self-isolate, even before seeking medical advice. The Acas guidance states that an employer should listen to any concerns staff may have and if they are genuine, the employer must try to resolve them to protect the health and safety of their staff. For example, if possible, the employer could offer flexible working, or allow the employee to take holiday or unpaid leave. Employers should consider whether there are any potential indirect age discrimination issues if they require all employees to be in receipt of either a fit note or written request under regulation 2(1)(b)(i) to be eligible for contractual sick pay (see above).

Homeworking

• Are employers entitled to require an employee to work from home?

If there is already an established requirement to work from home where appropriate or where instructed to do so (or in the case of a business continuity issue such as a pandemic), then there is unlikely to be an issue in applying that obligation in an effort to contain the spread of COVID-19.

If not, imposing home working could arguably constitute a variation of the contract requiring employee consent. However, where an employee is faced with either being on SSP or nil pay as an alternative, they may well be willing to consent to working from home as a way of preserving pay.

There are alternative methods of changing terms and conditions of employment, but in the circumstances and given the time sensitive nature of the COVID-19 outbreak, employee consent is likely to be the most realistic means of validly imposing a home working requirement where none previously existed.

If home working is being newly introduced, or expanded, the employer should ensure that the health and safety implications have been considered and that the necessary infrastructure is in place, including risk assessments for home working.

• Can an employer refuse to allow an employee to work from home if they will also be looking after children who have been sent home from school or nursery?

In normal circumstances, it would not be appropriate for an employee to work from home while also providing childcare. However, as the COVID-19 outbreak escalates, employers may need to take a pragmatic approach. If all schools and nurseries close, the majority of parents in the workplace will face this issue and putting a blanket ban on working from home while also looking after children may preclude a large proportion of the workforce from performing any duties. In these unprecedented circumstances, employers should be prepared to take a more relaxed and flexible approach to homeworking and allow employees to work around their childcare responsibilities.

Employees with younger children who require constant attention may not be able to work at all while responsible for looking after those children. However, they may be able to split the childcare with the other parent, so that both parents are able to, at least, continue working part-time.

Employees in these circumstances may assert their right to time off to care for a dependant. Time off in these circumstances is unpaid, unless there is a contractual right to pay. Given that school closures could last a relatively long time, it is likely that many employees who consider that they can undertake some work while providing childcare would prefer to do so (rather than assert their statutory right to time off) if the employer is willing to allow them to work flexibly.

Travel

• Can an employer require an employee to undertake work-related travel overseas?

This depends upon the nature of the Foreign & Commonwealth Office advice on travel to the areas of the country in question. It would not, ordinarily, be appropriate to continue to require work travel to areas which the FCO has advised against travelling to.

In most cases it would not be a reasonable request to require travel to such areas, and it may breach the employer’s health and safety obligations, and the obligation of trust and confidence, to impose such a requirement on employees. It could also result in a personal injury claim should the employee contract the illness while undertaking work-related travel in these circumstances.

However, there will be some roles (for example, certain journalists) where the nature of the job is such that the employee can be reasonably expected to travel to areas which are dangerous in some way. In those, relatively unusual, cases where travelling to the area where COVID-19 is particularly prevalent is part of the role, the employer would still need to consider its health and safety obligations and what measures should be put in place to minimise the risk.  The employer should also consider whether the employee in question has a pre-existing health condition, or other characteristic, which puts them at higher risk of contracting COVID-19 and developing a serious illness.

• What is the position where an employee is stranded overseas on a work trip?

If an employee is unable to travel home because they have contracted COVID-19 and are either not permitted to travel or too unwell to do so, the employer should treat them as being on sick leave in terms of pay.  The employer would also need to consider the additional expenses incurred by the employee in terms of accommodation and subsistence and ensure that assistance is provided to make arrangements, and that the employee is reimbursed for such expenses. If medical assistance is required, the employer should ensure that the employee is able to access its business travel insurance policy, and that such other assistance as may be appropriate is provided.

If the employee is unable to travel home because they are subject to lockdown or precautionary isolation and unable to access transport home, similar considerations will apply. However, the employee should continue to receive full pay on the basis that they are only in that situation because their employer sent them overseas.

If there is a breakdown in the pre-arranged transport home (for example, due to flight cancellations), the employer should explore other options to repatriate the employee. The employer remains bound by its implied duties towards the employee, and it is likely that its ongoing responsibilities towards the employee would require the employer to make reasonable efforts to find a way for the employee to return home, at the employer’s expense. The contractual position and any policy on overseas travel should also be considered.

• What is the position where an employee is stranded overseas following a holiday?

Where the employee is unable to travel home because they have contracted COVID-19 and are either not permitted to travel or too unwell to do so, the employer should treat them as being on sick leave in terms of pay. The employee is entitled to take annual leave if they prefer to do so, but they cannot be compelled to do so.

Where the employee is unable to travel home because they are subject to lockdown or precautionary isolation and unable to access transport, their entitlement to pay will depend upon the precise circumstances. It is likely that SSP would apply.

• Can an employee still be required to travel to a work event within the UK?

This will depend upon the current Government and public health advice on travelling and attending events within the UK, and the nature of any objections from the particular employee. If there is no public health advice against taking this action then, in principle, employers are entitled to continue to impose such a requirement (assuming the employer is otherwise entitled to require the employee to do so).

The employer should consider whether attendance at the event is really necessary, even if the employee does not fall into a high-risk category, given that many employees will have understandable anxiety about long journeys on public transport and attending large events.

• Where an employee returns from a holiday in a high-risk area, can they be required to stay away from work?

It is likely, and indeed our advice, that an employer should require employees who return from a high-risk area to remain at home.  Whether they are entitled to SSP or full pay will depend upon whether they fall within the guidance from the relevant public health authority on self-isolation. SSP is only payable under the deemed incapacity provisions for self-isolation where the employee is following public health advice from NHS National Service Scotland.

Dealing with the economic impact – changing terms and lay-off

• What action should employers be taking now?

The action an employer should be taking will depend, to some extent, upon the nature of the workplace, the roles carried out and the demographic of the workforce, but some of the issues that employers should consider from an employment law perspective include:

• The employer should consider its contractual sick pay policy, and the practical implications on withholding pay or reducing pay to SSP. The employer will wish to balance the costs of paying full pay where they are not legally obliged to do so with the indirect costs (in terms of spreading the virus and increasing sickness absence) where employees attend work following potential exposure to the virus, or even when exhibiting symptoms of it, in order to continue receiving pay.
• Whether the infrastructure is in place to allow large numbers of employees to work from home. Is the IT system prepared for a high number of employees to work remotely? Do employees have the hardware necessary to work from home? Will additional guidance need to be issued to reduce demand on the IT systems if many people will be working remotely simultaneously?
• Compliance with Government, NHS Scotland and WHO guidance on hygiene in the workplace, and other preventative measures. Consider appointing a coronavirus taskforce who are responsible for keeping track of developments, updating internal guidance and communicating with workers.
• Clear communication with workers on the employer’s policy on homeworking, work travel and precautionary isolation.
• Ensure that employees have provided up to date personal details.
• Plan for mass closures of schools and nurseries. Identify business critical roles and how they can be maintained. Consider what pay employees will receive if they work part-time to fit around childcare, and the benefits of acting flexibly to allow as many employees as possible to continue working. Consider whether the business would be best served by encouraging employees to work flexibly and making that facility available, or by encouraging the use of statutory rights to time off to care for dependants, annual leave or parental leave.
• Provide clear information to managers on how to deal with an employee who attends work displaying symptoms, or who has potentially been exposed to the virus.
• Identify any high-risk employees and consider whether there are any potential discrimination implications which mean a more cautious approach is required.
• Critically consider whether any domestic and international work travel and events are necessary. Consider whether internal meetings can be carried out through virtual meetings.
• Identify the minimum safe level of workers required to continue operating, and how that can be maintained in the worst-case scenario. Identify the point at which the business may need to cease operating temporarily and consider the employment law consequences.

• In what circumstances should the employer consider lay-off and short-time working?

Laying off employees means that the employer provides employees with no work (and no pay) for a period while retaining them as employees; short-time working means providing employees with less work (and less pay) for a period while retaining them as employees. These are temporary solution to the problem of no or less work. However, if employees are laid-off or put on short-time working in circumstances where the employer does not have the contractual right to do so then the employer will be in fundamental breach of contract entitling the employee to resign and claim constructive dismissal.

Lay-off may need to be considered in the following scenarios:

• A downturn in work due to the effect of COVID-19 on suppliers and customers means that fewer employees are required on a temporary basis.
• Temporary closure of the workplace due to insufficient employees being able to work.

Short-time working may need to be considered where there is:

• A downturn in work due to the effect of COVID-19 on suppliers and customers meaning that the business does not need all employees to work their contracted hours.

Employees who are already unable to work, for example due to sickness or (arguably) medically advised self-isolation, cannot be laid-off.

Data protection issues

• Do employees have the right to be notified if colleague/customer develops the virus?

The Data Protection Act 2018 defines information about an employee’s health as a “special category of personal data”. This means that it can only be processed by the employer in defined and restricted circumstances.

Employees must be notified of the infection risk as soon as possible. However, the identity of the individual should not be disclosed. An employer should simply advise that an employee who has been in the workplace has been infected and that appropriate precautions should be taken.

The ICO has confirmed that it will take a pragmatic approach to enforcement in light of the pandemic

Contact

Please contact Graham Millar (gmillar@gilsongray.co.uk; 0141 530 2023) or Stuart Robertson (srobertson@gilsongray.co.uk; 0141 433 7752) of our Employment Law Team for any more detail, or to help your business cope with the employment.