Updated 19 March 2020
The picture around coronavirus (COVID-19) continues to change rapidly and the Government’s Public Health England (PHE) advice as to what measures businesses and individuals should take is continuing to be tailored according to the nature, scale, and location of the threat in the UK, as the situation and their understanding develops.
Businesses are having to adapt at unprecedented pace, not only in managing the significant operational, contractual and financial impacts on their business but ensuring that they are also protecting the welfare of their staff and managing the various workforce issues which are emerging.
Employers should continue to take steps to meet the guidance issued by the Government whilst ensuring that they manage any workforce issues as fairly as possible and in accordance with legal obligations. Regular communications with your staff and clear practical guidance is key to navigating some of the logistical and legal issues which need to be taken into account. This is particularly the case given that businesses are having to manage potential redeployment of staff, short-term working, temporary lay-offs and potential redundancy situations.
To assist employers through this challenging period, our advice below sets out how to manage some of the key emerging workforce issues. We will update this as the situation develops.
Reducing risk to employees
Employers have a statutory and common law duty to protect the health and safety of their workforce. Reducing risk of infection to employees will also help maintain the normal functioning of an organisation’s business.
Employers should circulate instructions, consistent with guidance issued by PHE, encouraging employees to be extra-vigilant in exercising good hygiene practices. It would be good practice for employers to take extra steps such as providing antibacterial hand sanitiser/surface wipes, instructing staff to spread out from each other when working, potentially creating A and B teams to attend work to reduce the risk of exposure where homeworking is not possible or practicable, and designating an ‘isolation room’ where an employee who feels ill can go.
In view of an employer’s legal duties, including the obligation to maintain mutual trust and confidence, an employee could resign and claim constructive dismissal where they consider that their employer has not taken reasonable steps to ensure their safety.
Self-isolation and staff absence
PHE has published advice about the groups of people who should self-isolate. Although this guidance is currently advisory, employers should make it clear that if an employee falls within one of the groups they should refrain from attending work.
Clear communication and ensuring consistent application across the workforce will be key in managing a changing situation and minimising the risk of an employee failing to comply with a reasonable instruction to remain at home – especially where they are not currently ill. Employers are likely to want to manage these risks informally rather than through formal processes.
Where staff are not in isolation but required to care for dependants such as children and/or elderly family members and are unable to work from home, other options to facilitate these requirements could include taking annual leave, exercising the statutory right to parental and dependency leave and unpaid leave.
Read more about homeworking considerations below.
There is no statutory right to be paid during dependant’s leave, but employers should be clear as to any contractual terms and/or whether some discretion to pay staff may be exercised for a limited period of time.
The latest Government advice is that those who can work from home should do so and many employers have already followed this guidance and sent staff home. If an employee refuses to work from home, employers should check the contract of employment to see whether this includes a mobility clause. If it does, then this will usually be sufficient to cover the contractual right to require an employee to work from home. Even without a mobility clause, given the current circumstances it is still most likely a reasonable management instruction to require an employee to work from home.
There are many factors that need to be considered in relation to homeworking including health and safety considerations, providing equipment to employees, costs of homeworking expenses, data security and monitoring and supervising staff. These issues should be addressed in a comprehensive homeworking policy.
Employers should also consider the mental health and well-being of their employees, many of whom may not be used to homeworking. Measures such as implementing or promoting mental health first-aid champions or resources are worth bringing to the fore at this time.
The Government has indicated that very soon pregnant women, those with chronic disease and people aged over 70 will be required to self-isolate for a prolonged period. Employers should follow this guidance and make necessary arrangements for affected employees. Employers could offer flexible working arrangements including working from home, annual leave or unpaid leave.
For advice on issues relating to homeworking or assistance with drafting a homeworking policy, please get in touch.
Different pay regimes will apply to different circumstances:
- If an employee does in fact develop symptoms of coronavirus then they are entitled to sick pay during a period of self-isolation.
- If they are being required to self-isolate by their employer and cannot work from home, this is likely to be akin to a period of medical suspension and they are likely to be entitled to full pay.
- If they are an asymptomatic employee who chooses to self-isolate, perhaps for preventative reasons, the situation is less clear and this will depend on how the contract defines the right to sick pay.
ACAS recommends that it is good practice for employers to treat isolation as sick leave because there will otherwise be a risk that employees will come to work in order to get paid, which would risk spreading the virus to others.
Statutory sick pay (SSP) is payable in respect of a period of ‘incapacity for work’. The Government has implemented the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020, effective from 13 March 2020, which provide that those who self-isolate in order to prevent infection or contamination with coronavirus in accordance with guidance published by PHE, NHS National Services Scotland or Public Health Wales, are deemed incapable of work and entitled to SSP (if they meet the other requirements). Given the latest PHE guidance on self-isolation, this means that a wide range of individuals are entitled to SSP, including those who have to self-isolate because they live with someone displaying coronavirus symptoms. The Government also announced that SSP will be available from the first day of absence rather than the fourth to encourage those who need to self-isolate to do so.
Staff on Zero Hours Contracts
Workers on Zero Hours Contracts (ZHCs) can still get SSP if they meet the requirements. However, many workers on ZHCs do not earn enough to qualify and therefore miss out on pay during a period of sickness.
Again, the concern is that some workers will be tempted to go in to work despite being ill, potentially worsening infection rates. Workers who are frequently on ZHCs include cleaners, caterers and security guards who may work at hospitals or social care homes and therefore work with vulnerable sick and elderly people. Employers may choose to use their discretion and respect the medical need to self-isolate when making decisions about sick pay.
Employees who refuse to come in to work
If an employee has concerns and does not wish to attend work, the employer should listen to their concerns and especially consider the needs of employees who are pregnant, elderly or have compromised immunity. If an employee has a disability within the Equality Act 2010 which results in a higher risk of developing severe coronavirus, employers may be under a duty to make reasonable adjustments to mitigate that risk, perhaps by accommodating flexible or home working requests more.
Work related travel
The Foreign & Commonwealth Office (FCO) had advised Britons against all non-essential foreign travel. Many countries have travel restrictions in place in any event, making travel impracticable.
Whilst this is already largely being applied, by way of reminder, employers should avoid sending employees to other countries for work unless travel is deemed absolutely essential. If it is, then the FCO has published a checklist covering what steps should be taken before travel.
Given the Government’s advice to avoid both non-essential contact and travel, including recommendations to avoid large-scale events, we would advise employers to also cancel non-essential travel within the UK and larger scale meetings.
Many employers will have employee assistance programmes and related support which staff can access for support and guidance.
Employers should be mindful of the potential impact on staff who are required to be absent from work for a period of time and/or who are not accustomed to working agilely and/or on a more autonomous basis. A Homeworking Policy or practical guidance, alongside a business continuity plan, will enable businesses and their workforce to have clear communications and expectations in managing some of the practical issues of flexible and agile working.
Organisations may need to assist staff with the provision of key equipment to facilitate efficient agile working arrangements.
Staff should be reminded of any health and well-being and/or employee assistant scheme support available and how they can access these.
Employers should also ensure that a return to work meeting is held with their employee to discuss any queries or concerns held and whether any additional support may be required.
Employment Tribunal Litigation
The position has changed rapidly from “business as usual”, to “increased flexibility” and proceeding by Skype or telephone conference, to vacating all final hearings from Monday 23 March onwards for the time being. The president of the Employment Tribunals has confirmed that the first day of any currently listed hearings, in coming weeks, will be converted into case management discussions by telephone to decide how to proceed. The high likelihood is therefore that directions will be agreed in those hearings to relist and reorganise current litigation for several months’ time.
Unfortunately, this doesn’t mean a global stay on litigation. Employers may still be expected to respond to new claims and to parties may still need to comply with directions. For employers who have left their offices entirely to work from home, this may mean real difficulty in receiving service of ET1 claims and responding. We anticipate, but cannot be sure, that this will be good grounds for seeking an extension of time to respond if necessary, once claims are in fact received.
Small and medium sized businesses (SMEs)
SMEs will be hit particularly hard by the effects that coronavirus has on their workforce and business. The Chancellor of the Exchequer has announced the following measures specifically to provide financial assistance to SMEs:
- the Government will pay back small employers, with fewer than 250 employees, any SSP paid to those off work due to coronavirus;
- there will be a temporary Coronavirus Business Interruption Loan Scheme for banks to offer loans up to £5m to support small and medium-sized businesses; and
- Cash grants of £10k or £25k for some smaller businesses.
Some UK banks such as NatWest, RBS and Lloyds are offering other support for small business customers, for example by offering relief on fees and loan repayments.
Lay-offs, short-time working and redundancy
While most employers will try to do all that they can to maintain “business as usual”, it is inevitable that the current situation will have a significant impact on the financial health of some businesses and lay-offs, short-time working and redundancy may become necessary.
Lay-offs and short-time working are when an employer provides employees with no work (and no pay) or less work (and less pay) while retaining them as employees. They are both temporary solutions to help employers manage an unexpected downturn in business. Importantly, in order to use lay-offs or short-time working, there must be an express or implied clause in the contract of employment making provision for these. Employees who are laid-off or on short-time working may be entitled to guarantee payments and statutory redundancy payments.
The reality is that many employment contracts will not include lay-off or short-time working provisions and it is difficult to imply these provisions into contracts.
Given the exceptional circumstances that many businesses find themselves in, so as to take appropriate steps to safeguard the long-term sustainability of their businesses and to avoid redundancy processes, employers will need to consider carefully how they can take remedial steps at pace. This will involve having clear and direct communications with their workforce and seeking their consent to amend contracts and/or to agree short-time working or lay-offs. Any proposals affecting more than 20 staff would trigger collective consultation duties – these are not normal times but in any event employers need to ensure that they are proceeding fairly and appropriately in order to mitigate against potential future litigation risk.
In some cases, the financial or workforce impact on an organisation may be such that businesses will need to place employees “at risk” of redundancies. If that is the case then the usual legal obligations will apply, although there may be scope for flexibility around the normal consultation periods.
Staff will be understandably concerned about maintaining their financial livelihood during any period of absence, whether on account of an instruction from their employer, in light of the relevant guidance to self- isolate for a period of time or as a result of caring for a dependent. Managing this situation will require a careful juggling of priorities and considerations, not least operational, financial, safety and business continuity.
The picture surrounding coronavirus is changing on a daily basis and employers should keep up-to-date with PHE and government advice https://www.gov.uk/government/collections/coronavirus-covid-19-list-of-guidance
If you require specific advice or support in managing any of the workforce issues arising from this ever changing situation, including assistance with drafting home-working policies or business continuity plans and communication statements, please contact Jodie Sinclair (firstname.lastname@example.org or 0370 1947890) or Julian Hoskins (email@example.com or 0370194 1608) at Bevan Brittan’s employment law team.