Boris Johnson described the outbreak as "the worst public health crisis for a generation". As the virus continues to spread, employers will face significant disruption to their businesses. With projections that up to a fifth of UK workers "could be off sick at the same time", employers need to develop strategies now.
Business continuity planning is critical. Employers need to ensure that if they have not done so they urgently carry out a business continuity risk assessment and that they implement a proportionate plan, mitigating risk and as far as possible managing illness, fear, anxiety and the other responsibilities of employers. It will need to be regularly revisited and reviewed. Tech solutions, remote working, repurposing of skills and premises are all in the mix.
Staying up-to-date with the latest government advice is crucial. Practical guidance has been issued for employers. Please be aware that it sometimes take time for the latest guidance to be updated on the below websites:
- Public Health England - Guidance to employers and businesses about COVID-19
- Health Protection Scotland - Guidance for non-healthcare settings
- Welsh Government - Employers and businesses guidance
- Public Health Agency in Northern Ireland - COVID-19 (coronavirus)
What practical steps should employers be taking?
Risk Assessments
Employers have a duty of care to their workforce. Given the government guidance on essential travel only and social distancing where at all possible, employees should be able to work from home. If that is not possible, changes in the way people work need to be invoked. Risk assessments should be utilised across the business and where appropriate implemented. The extent of the risk assessment will vary from employer to employer and changes according to in-work or remote employees. Risk assessments for people at work should be based on a variety of factors from public exposure to any travel to the make-up of the workforce. Practical steps to prevent infection are a good start. Hygiene systems should be reviewed, including practical training and communication to the workforce to help promote compliance. Frequently touched objects and surfaces should be cleaned and disinfected.
Vulnerable staff and visitors should be identified and measures should be implemented to ensure they are provided with a safe environment. Many individuals are anxious about the virus. Employers should listen to employees' concerns and act proportionately, bearing in mind the duty of care required. Implementing robust risk assessments should help alleviate employee concern.
Consideration should also be given to what travel (if any) is taking place and a red flag system should be implemented for any travel.
Employers should consider what steps should be taken if an employee becomes unwell at work with suspected coronavirus (COVID-19). Is there a place to isolate the individual so that they can call 111 (if appropriate) and make the necessary arrangements to either make their way home or to an appropriate hospital? The Acas guidance provides useful advice dealing with this scenario.
Isolation
The advice on isolation is changing on a frequent basis and it is essential for employers to stay up-to-date. The evidence is clear that the coronavirus (COVID-19) is highly contagious, as such, periods of isolation have been required by the government. It is important for employers to communicate with their workforce and to ensure that the latest government guidance is circulated and adhered to. For further information on isolation please see:
- Public Health England - Stay at Home Guidance
- Health Protection Scotland - Coronavirus: (COVID-19) and NHS Inform - Coronavirus (COVID-19)
- Public Health Wales - Latest information on novel coronavirus - self-isolation advice
Please ensure you keep up-to-date with the latest government advice on isolation. It can sometimes take a few days for the above guidance to be updated following a government announcement.
Working from home
During any period of isolation, where an individual can work from home, the disruption to the business is significantly reduced. With modern technology, emails, phone calls, video-conferencing and texting all available, many individuals can carry out their roles at home. If businesses have not already done so, they should immediately identify which roles can be carried out remotely and risk assessments undertaken in relation to working from home, albeit that a proportionate approach needs to be taken to such risk assessments.
Employers should consider whether they have a contractual right to require the employee to work flexibly. Employment contracts should be reviewed to assess whether employees can be required to:
- Work at home.
- Work at a different location.
- Take on different duties.
Where there is no flexibility within the contract, employers may need to take proactive steps to change terms and conditions (ideally by agreement with the employee).
Not all roles lend themselves to working remotely. From factory workers to care staff; working from home is ordinarily not an option. Despite the inability to work from home, when an employee has been advised to self-isolate, employers should ensure the individual does not come into the workplace.
If an employee is unable to work due to the coronavirus, what pay will they be entitled to?
This will depend on the reason for the absence and the employee's terms and conditions of employment.
-An employee with coronavirus – Employees infected with the virus will ordinarily be entitled to sick pay in accordance with their contract of employment.
-Isolation – The situation where an employee has to self-isolate either due to unconfirmed symptoms, family members having symptoms or otherwise as government advice indicates has also been made clearer in recent days.
Statutory sick pay ("SSP")
On 13 March 2020 new legislation was implemented extending the Statutory Sick Pay ("SSP") regime to specifically include those who are self-isolating to prevent infection or contamination with the coronavirus (COVID-19) disease in accordance with Public Health England ("PHE"), NHS National Services Scotland or Public Health Wales. The legislation provides clarity that SSP applies to these circumstances.
Further reform is expected imminently as set out in the March 2020 Budget, including SSP from day one of sickness absence. Small employers (less than 250 employees) will be reimbursed for any SSP paid in respect of the first 14 days of sickness absence relating to COVID-19.
The Budget also referred to measures being introduced allowing a temporary alternative to the fit note. Those who need to self-isolate during the outbreak will be able to obtain a notification via 111 as evidence for absence from work, in order to reduce the burden on GPs.
Employers may have to take a pragmatic approach as to when an employee is "deemed" incapable to work as it is foreseeable that doctors and 111 will be under significant demand. Acas guidance provides good practice tips for employers when dealing with this situation.
Contractual sick pay
Payment over and above SSP will depend on the terms and conditions relating to sick pay contained within the employee's contract of employment. Acas guidance suggests that it is good practice to pay contractual sick pay.
Full pay
Where an employee wishes to work but the employer is concerned that the individual poses a risk to the health and safety of others, suspension may need to be considered. Subject to the contract of employment, where an employer suspends the employee on health and safety grounds due to the risk of infection in the workplace, the employee may be entitled to full pay.
With any form of suspension, it is crucial that the employer behaves proportionately, fairly and consistently across the workforce.
In this scenario further legal advice should be sought as depending on the exact circumstances the employee may fall into the newly legislated SSP scheme.
Medical suspension
The statutory right to pay when medically suspended does not currently extend to this scenario.
Caring for dependants – Employees who have caring duties, for example, because a child's school is closed, will need to take time off. Employers should consider any contractual obligations and should also be aware that there is a statutory right to unpaid leave. Employees have the right to take a "reasonable" amount of unpaid time off work to take "necessary" action to deal with particular situations affecting dependants. It is predictable that there may be some conflict over whether this leave should be paid or unpaid and how long the leave should last. Employers should prepare themselves and ensure any discretion is exercised in a non-discriminatory way.
Annual leave - In certain scenarios taking annual leave might be an appropriate option for an employee. Employees receiving less than full pay (statutory or no pay) may be keen to take annual leave in order to ensure they receive their full pay.
Lay-off/short-time working
Where there is a reduced need for employees and there is a specific contractual term in relation to lay-off, employers can invoke the lay-off clause. It should only be used where work has reduced. Employees who are subject to lay–off remain employed and are only entitled to statutory guarantee pay ("SGP") unless other pay is specifically provided for. SGP is currently £29 per day for 5 days in any rolling 3 month period. If employees are laid off (or kept on short-time working – please see below) for more than 4 consecutive weeks or a total of 6 weeks in any period of 13 weeks, they are entitled to request redundancy.
An alternative to "lay off" is "short-time" working when again for a period of time, an employer provides the employee with less work (and in turn less pay). Both options provide an alternative to dismissal in situations where there is a downturn in work however, it is expected that work will pick up again.
It is important for employers to consider the contractual position before taking any action. If there is a contractual right to lay-off or short-time working the position is more straightforward.
If an employer attempts to lay-off an employee or put them on short-time working without a contractual right to do so they will be in breach of contract and may face claims for constructive dismissal and unlawful deductions from wages. Employers should also be mindful that there is a statutory redundancy scheme available (as referred to above) in certain circumstances for employees who are laid-off or subjected to short-time working.
Where employers do not have the contractual right to lay-off or short-time working, they may consider seeking employees' consent to different working patterns. We are in an unusual position and it may be that the workforce would consider agreeing to alternative working patterns with the goal of keeping the business viable. Other alternative options might be to seek volunteers for lay-off/short-term working, offer job shares or voluntary redundancies.
Conclusion
As outlined above, employers have a duty of care to their workforce and do not want employees coming into work when they should be self-isolating. Whichever pay option is considered appropriate, employers need to be mindful that an employee who is receiving below full pay will be seriously motivated to get back to work in order to receive full pay – this poses a significant risk to the wider workforce.
The government's action plan offers assurances that the government has planned extensively over the years for an event like this and that "The UK is therefore well prepared to respond in a way that offers substantial protection to the public". However, it is sensible for employers to be prepared and implement continuity plans. From good hygiene to sensible working practices, employers need to take the opportunity now to ensure they are in the best possible position to protect their business.
