Coronavirus: Legal Update for Employers (5 March 2020)

While companies globally are being impacted by the COVID-19 ‘coronavirus’ outbreak in terms of their supply chains, many UK employers will be wondering what to do with their workforce in the event of an outbreak or suspected outbreak.

In the event of a pandemic, employers have a duty to protect the health and safety of their employees. However, they will likely face a conflict between keeping sick employees away from the workplace and the need to prevent unauthorised absence, all while minimising the impact on their business. Staying at home if you are actually symptomatic is clearly common sense, but what happens when:

1. an employee isn’t sick, but has potentially come into contact with the COVID-19 virus; or
2. has been advised by a medical professional to self-isolate or been placed in quarantine; or
3. is infected, or potentially infected, but insists on coming into work.

If the employee isn’t sick, but there are concerns about their health or they have been advised to self-isolate

It is important for employers to consider that withholding pay may discourage employees from identifying and reporting risks and could leave the employer in the worse position of facing a mass infection.

If an employee is off sick, provided they meet the qualifying criteria, they will receive statutory sick pay (“SSP”). Some employees will also receive contractual sick pay in addition to SSP. Although there was originally some doubt whether someone who was self-isolating (but not actually suffering from coronavirus) would be entitled to sick pay, the UK Government has confirmed that SSP will be paid in this scenario. They have also confirmed that SSP will be paid from the first day of sickness absence rather than from day four.

In relation to suspension by the employer, it is an implied contractual term that where an employee is “willing and able to perform work”, the employer has an obligation to pay wages (unless there is a contractual right not to do so, which is unlikely). Therefore, if an employee is suspended by the employer on health and safety grounds, they are likely to have the right to be paid in full, unless their contract specifies differently. The employer need not provide work to do in this situation, but they could ask the employee to work from home if this is feasible.

What about if the employee is in quarantine? Some employers may wonder whether they may choose not to pay their quarantined employees as it is not them “ordering suspension”. From a strictly legal perspective, the implied right to wages only exists where the employee is “willing and able to perform work”. It could therefore be argued that where an individual has been quarantined, they are unable to perform their duties and therefore they do not have an implied right to be paid. This will ultimately come down to the meaning of “able” to perform work and is highly likely to depend on the individual circumstances. However, current case law suggests that if an employee is ready and willing to work, but they are unable to work as a result of an external constraint, any deduction of pay may be unlawful. Interestingly, current ACAS guidance states that there is no statutory right to be paid in circumstances where an individual has been quarantined, but it does suggest it is good practice for employers to treat absence due to compulsory quarantine as sick leave. Alternatively, an employer could agree for the time to be taken as holiday, although few employees are likely to be agreeable to this suggestion.

What if the employee insists on coming to work?

It is particularly important for employers to deal with suspension sensitively to avoid breaching the implied duty of trust and confidence as this could result in an employee claiming constructive dismissal.

Firstly, employers should consider whether there is an express right to require the employee to stay at home. Assuming not (which is most likely) the employer should then consider whether there is an express or implied right for the employee to attend work. Employers should note that there is no general implied term requiring an employer to provide work, but this is provided that they continue 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 as long as they are paid and assuming any decision is reasonable and non-discriminatory.

Practical steps for employers

Employers should consider carrying out their own risk assessment to find ways in which they can help to reduce the risk of infection.

All employees should be advised to follow Public Health England’s guidance on good hygiene. Employers may also consider recommending that staff do not attend conferences or training sessions where there are likely to be large crowds of people.

If employees have travelled abroad in the last 14 days to any location where there has been an outbreak of coronavirus, or if they have they been in contact with anyone in the last 14 days who has been diagnosed as having coronavirus, or they are displaying any of the symptoms listed on the Public Health England website, they should be advised to inform their manager and stay at home. They should also telephone the NHS helpline 111 to seek advice on testing. They should not attend their GP surgery or hospital, unless directed otherwise by a medical professional.

In relation to reducing personal contact with clients and suppliers, employers could consider arranging telephone or video conference appointments instead of face-to-face meetings, as well as asking clients and suppliers to confirm whether they have recently travelled to an affected area, or have encountered anyone who has been diagnosed as having coronavirus. If a face-to-face meeting cannot be avoided, advise employees not to shake hands and not to touch their face until after they have washed their hands with soap and hot water for at least 20 seconds.

Consider ensuring your business has the ability for staff to work from home and be able to divert phone calls. Ensure sufficient supplies of face masks, tissues and soap.

Employees who have reduced ability to fight infections and those with asthma and diabetes should be identified as particularly high risk. These employees may need to avoid crowds, so the guidance would be to work from home, cancel business-related foreign travel, stop using public transport and avoid networking, group training events and conferences.

Information correct as of 5 March 2020