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Employers have a duty under health and safety legislation to take steps to ensure the health, safety and welfare of all their employees, so far as reasonably practicable, including those who are particularly at risk for any reason. Employees also have a duty to take reasonable care of their own health and safety and that of people they work with. They must cooperate with their employer to enable it to comply with its duties under health and safety legislation. Employees who refuse to cooperate, or who recklessly risk their own health or that of others in the workplace, could be disciplined where this is appropriate.
Where, for example, employees attend work but the employer reasonably believes the employee has symptoms that would require them to self-isolate in accordance with current government advice (i.e. where they have a new persistent cough and/or high temperature), it is likely that the employer has a duty of care towards other staff to require the employee displaying those symptoms to stay at home and self-isolate for a period of 7 days. Employees will be entitled to SSP in this scenario under new temporary SSP Regulations Alternatively, where employees are fit enough to carry out some work whilst self-isolating and it is practicable for them to do so, employees would be paid their normal wages for the period they are carrying out work.
The government has produced guidance for employers, which can be accessed here:
Questions for employers in addressing coronavirus impact on their business:
Do I have to pay Statutory Sick Pay if employees are required to self-isolate?
Employees who develop symptoms of the coronavirus or symptoms which require self-isolation or have long term underlying health issues and have been informed to isolate, will of course be unfit for work. They will be entitled to SSP subject to meeting the qualifying criteria.
Are employees entitled to pay if employers require them to stay away from work?
Employers may choose to go further than the advice from the Public Health bodies and, as a precautionary measure, ask require employees to stay away from work when they are not sick or are not self-isolating in accordance with current Public Health advice. In those cases, employers will need to pay employees their normal salary for this absence. This is because the absence is at the employer’s request and is not sickness absence. Alternatively, employers may choose to ask employees to work from home if this is an option in which case, of course, they would receive their usual pay.
How should I respond if employees refuse to work?
Employees may be anxious about the risks of being exposed to the virus due to travelling to work on public transport or by attending the workplace. They may even refuse to attend work on this basis. Whilst their absence in this circumstance is likely to be unauthorized, again, unless there is clear evidence that the employee’s concerns are not genuinely held, the best approach would be to alleviate employees’ anxieties by referring them to published advice from Public Health bodies. It is unlikely to be reasonable to treat absences from work in those cases as unauthorized or as a disciplinary matter unless the employer has reasonable grounds for believing, based on compelling evidence, that they are using the virus as an excuse not to attend work.
Employers may choose to be cautious about permitting those employees to work from home or otherwise stay away from the workplace where they do not wish to set what employees may construe as “a precedent” by doing so; and where there is no good public health reason for them to stay away from the workplace.
What about employees who are unable to attend work due to school closures or due to dependents self-isolating?
When schools are closed, this will impact on childcare arrangements and employees’ ability to attend work. In this scenario, it is also likely to be more difficult for employees to find replacement childcare cover. Elder care arrangements may also be adversely affected. The government’s new guidance on self-isolation, which has been implemented by schools, will also have a potential impact on childcare where children are required to self-isolate for 7 days and to not attend school where they have a new, persistent cough, or a fever.
Where this is practicable, employers should be flexible by permitting affected employers to work from home, or to alter their working hours on a temporary basis in the event of school closures or a temporary breakdown in existing childcare arrangements or arrangements for care of elderly dependants. Alternatively, the employer may consider agreeing with the employee agree a period of unpaid leave or paid annual leave to cover the time off work.
Can I use Lay Offs and Short Time Working?
Some businesses have been affected by a downturn in work caused, for example, by customers cancelling travel and hotel bookings, or by current or potential customers “social distancing” as a result of public anxiety around contracting the virus.
Lay-offs and short time working can be put in place as a useful way of handling temporary work shortages without having to resort to redundancy. However, employers can only lawfully take this action to avoid potential unlawful deductions from wages claims or breach of contract claims where employees agree to being laid off or kept on short-time working, or it is provided for in the contract.
What about Variations of Contract?
Businesses affected by a downturn in work may also consider putting in place other temporary measures to avoid the need for redundancies, such as introducing a temporary reduction in pay, working hours, or removing/reducing certain contractual benefits. Employers will need to consult with staff to obtain their agreement to these measures in the absence of any relevant contractual flexibility clauses or short-time working clause.
What general measures can I take in the Workplace?
Most employers have already placed restrictions on work-related travel. Employers should continue to monitor the latest travel advice from the Foreign Office as this advice is rapidly changing.
Employers should ensure that soap and running water is readily available in the workplace. It is also good practice to make available supplies of alcohol-based sanitisers, particularly for mobile workers who may not always have access to soap and water. Employers should ensure that all potentially high-contact work areas, such as toilets, door handles and shared office equipment are regularly cleaned using household type detergents.