Coronavirus News: FAQs for Employers
How might social distancing affect an employee’s ability to perform their role?
The current advice is for everyone to avoid all unnecessary contact with other people. If working from home is feasible, employers should try to facilitate it. If working from home is not feasible, employees should continue to make every effort to attend their workplace while minimising close contact with others.
Employers should ensure that they take steps, such as increasing the frequency of cleaning or providing disinfecting wipes and gels, to maintain high standards of cleanliness and hygiene during this time, and employees should assist their employers in achieving that by keeping their personal and shared areas clean and regularly washing their hands.
Legally, employers have a duty to take reasonable care of the health and safety of its employees, as well as a duty to take reasonable steps to provide a safe workplace. This duty is of vital importance during this pandemic.
If an employee does not want to work from home. Can we force them?
We understand that not everybody’s home may not be suitable for homeworking. Employees should remember that they have a duty to obey lawful and reasonable orders and a duty to be adaptable. These duties are not absolute and generally will be subject to the reasonableness of the request, which can be impacted by the reality of the business reasons for requiring homeworking, which will vary from business to business.
You may find that homeworking is contained in your employees’ contracts of employment, so it would be a good idea to check your contract to see if it is specifically mentioned. You should also consider looking for a ‘place of work’ or ‘mobility’ clause, which might provide normal place of work includes any location within a reasonable area.
If homeworking is a clear requirement of the employee’s contract of employment, you should make the employee aware of this in the first instance and work with them to facilitate any reasonable changes that may make homeworking possible for that employee.
If the employee continues to refuse the request, and if you are confident that request is reasonable in the circumstances, you may find it necessary to discipline the employee for misconduct. Whether that misconduct is serious enough to warrant consideration of dismissal will be a matter of fact for your business to determine.
If homeworking is not a clear requirement of the employee’s contract, your business could consider offering the employee “new terms for old”. This would involve dismissing the employee and offering a new contract, which includes a homeworking clause, to take effect at the end of the notice period. If a business chooses this option, careful consideration must be given to the reasonableness of its need for homeworking to avoid a claim against it of unfair dismissal. If the business reasons for making the change are not compelling, your business may find it difficult to defend that claim.
I believe an employee is exhibiting symptoms of Coronavirus. Can my business send them home to self-isolate?
It is understandable, due to the duty to take reasonable care of the health and safety of its employees, that a business may wish to send an employee home to self-isolate if it believes they are at a high risk of having coronavirus. If your business permits homeworking, and the employee agrees to it, this would strike the best balance between protecting health and safety and avoiding any employment law risks.
If homeworking is not feasible, your business may suspend the employee with pay, unless there is some express provision in the employee’s contract which requires them to attend work in any circumstances. Suspending the employee with pay should avoid any employment law risk because, in most circumstances, employers do not have to provide work to its employees as long as their wages are paid.
If the employee falls within the category of individuals who are being advised to self-isolate, or if they are exhibiting symptoms, you may be entitled to treat the employee as being on sick leave. In that scenario, subject to any contractual sick pay provisions, the employee would likely only be entitled to statutory sick pay. Please see below for a more detailed consideration of statutory sick pay.
I am concerned about the health of my business’s employees and want to ensure they do not have coronavirus. Can my business conduct temperature checks on its employees?
You cannot require an employee to submit to having their temperature taken without their consent. Doing so could be a breach of contract which entitles them to claim constructive unfair dismissal. However, if your business’s employees give their consent, ensure that the temperature checks are conducted on all employees. Only testing certain groups of employees, for example those perceived to be at higher risk of contracting coronavirus, could lead to a discrimination claim.
You should be aware that taking your employees’ temperatures would result in your business obtaining health information, which is special category personal data under the GDPR. Your business will need to have a policy document in place to process this data and will need to fulfil the grounds for processing this data. The most applicable ground would be “explicit consent”.
Does my business have to permit homeworking?
Employees do not have a right to work from home, so ordinarily, no. We are not in ordinary circumstances, however, so employers must have regard to the risks to the health, safety and wellbeing of its employees when refusing an employee’s request to work from home. This is especially so if that employee is at higher risk of catching coronavirus.
You should also be careful to check whether the flexible working rules will apply to the request, as there will be separate duties on your business if so. Please see this guide to flexible working. In ordinary terms a person requests flexible working i.e. working from home when they have a possible protected characteristic such as a disability or childcare commitments. Refusing such a request, without any legitimate grounds could lead to a claim for discrimination. This means regardless of the employees’ length of service, claims could be presented against you with large compensation awards possible. This means that the two year safety net applied sometimes, is removed.
Can an employee use annual leave to cover any sick leave?
Yes, an employee is entitled to take annual leave to cover an advised self-isolation period, which would avoid your only being paid statutory sick pay. However, the normal rules on taking annual leave will continue to apply. Each business’s annual leave policy is likely to vary, but the Working Time Regulations 1998 (“the WTR”) state that you must give notice of at least twice the period leave that you are requesting. If you wanted your annual leave to cover the full 14-day period, you would need to give your employer 28 days’ notice. Of course, you could choose to waive its entitlement to that notice period at its discretion.
Can we cancel an employee’s annual leave?
Yes, the WTR allow employers to order its employees not to take holiday on specified dates by giving as many days’ notice as the period of holiday to which the notice relates. For example, if an employee had booked annual leave from 15th April to 30th April, your business would need to give notice of the cancellation no later than 1st April.
This is not without its risks, however. It will likely prove unpopular and may damage relations. Employees may also look to the employer to reimburse them for any cancellation charges. Finally, an employer who unreasonably cancels or disrupts holiday plans may cause its employees to resign, which may lead to claims of constructive unfair dismissal.
An employee is self-isolating following public health guidance but had booked annual leave for some of the self-isolation period. Can the leave be rescheduled?
The law is not clear on this area, but generally the answer is yes, if you are self-isolating because you have Covid-19 (or symptoms of it). You should reinstate the holiday entitlement for the affected days or allow it to be carried over to the next leave year if the sickness absence continues to the end of the holiday year.
An employee is self-isolating following government guidance, but they are not incapable of working (e.g. because someone they live with has symptoms) and they are a key worker. Do I have to reschedule their annual leave?
Again, the law is not clear on this area. While the employee would be entitled to statutory sick pay (see below), that entitlement alone would probably not be enough to mean they fall into the same category as those able to reschedule their annual leave due to actual ill health incapacity.
However, it is also possible that an employee could successfully argue that, because they are unable to leave their home, their self-isolation would not be a period during which they could enjoy relaxation and leisure (the purpose of annual leave according to the WTR).
Unfortunately, as this is an untested area of law, a definitive answer cannot be given.
Do self-isolating employees still get paid?
In most cases, an employee who is either in quarantine as a result of having Covid-19 or self-isolating following government guidance will be treated as incapable for work as for statutory sick pay (“SSP”) purposes.
It is currently unclear whether or not all members of the public who choose to self-isolate, i.e. those without symptoms, not in the vulnerable category or not living with someone with symptoms, will be entitled to SSP.
Do I have to pay my staff following the forced closures?
On 20th March 2020, the government announced the Coronavirus Job Retention Scheme, which is designed to enable employees to stay employed and continue to receive most of their salary. All UK businesses are eligible for this scheme.
In order to access the scheme, you will need to designate the employee as a ‘furloughed worker’. To do this you will need to identify the inability to continue in the role, explore alternative roles that may be suitable and where a consultation has taken place and a furlough agreed, an amendment to your contracts will be required.
As you are making changes to a contract, consent must be obtained it cannot be unilaterally applied.
Designated furloughed workers will be kept on the payroll and remain an employee but will not be able to work whatsoever. You will be required to update the HMRC through an online portal about furloughed employees. This portal has not yet been set up, so we are awaiting further details about the information required by HMRC.
When the system has been set up by HMRC, they will reimburse 80% of the furloughed workers’ wage costs, up to a cap of £2,500 per month. It will be for you to decide whether you wish to make up the difference of 20%. If you chose not to and do not obtain appropriate consent, you could risk a break of contract claim for unlawful deductions.
My business needs to lay off some of its staff to cope with the economic difficulties caused by the pandemic. How do I decide which members of staff to lay off and which to keep at work?
As above, your business should first ensure that it either has a contractual right to lay off its employees. If not, it should obtain each individual employee’s consent to amend each of their contracts of employment to give itself that right.
If your business needs to keep some of its employees in work to keep itself going in a limited form during the pandemic, then it should conduct a fair selection process and ensure that its decisions are not tainted by discriminatory reasons. Your business should also keep its selection criteria as objective as possible to avoid any disputes or grievances.
What measures do I need to consider if my business is continuing to operate after the lockdown on 23rd March 2020?
If you are a company which has been identified as critical to supporting the Covid 19 crisis then you are permitted to remain open. This is largely those connected with medical supplies and support, food distribution, public transport, GP’s and those servicing the justice system as a few examples. It is firstly important to consider how crucial it is to have all your employees at work and if there are some that can work remotely. The health and safety of your employees is perilous and must be the forefront. Where it is not possible to allow remote working, remember the government guidelines for hygiene and washing hands. Ensure that all surfaces are cleaned down regularly and a supply of antibacterial material is available.
At all times ensure your employees adhere to the social distancing policy. Try to limit your employee’s exposure by adopting new working practices where possible such as stopping face to face appointments in favour of a video calls and reducing your opening hours.
Principally if the employee feels their health and safety has been compromised or likely to be compromised or believes you are failing to adhere to a legal obligation, you could be open to claims of whistle blowing against you if they raise the matter and you continue to potentially subject your employees to detriments. This means regardless of the employees’ length of service; claims could be presented against you with large compensation awards possible. This means that the two-year safety net applied sometimes, is removed.
I have employees who are self-employed do I have any obligations to them?
Currently the regulations regarding those who are self employed are yet to be established. Principally, you only have obligations to your employees. Those who are self employed are not considered employees, therefore your obligation towards them is limited. You are not required to meet payment for those who cannot work. Those who can, the same rules apply as usual.
You still owe everyone the same duty of care in terms of health and safety, therefore you must still follow the governments guidelines relating to hygiene. Further, you must also ensure that you implement practices that are fair and reasonable, avoiding any possible discrimination. Self-employed individuals are still permitted to present claims connected to discrimination, if proven.
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