Coronavirus (COVID-19)

Updated 23.03.20

Coronavirus (COVID-19) is from the family of viruses which include the common cold. It is highly contagious but, in most cases, causes only mild, flu-like symptoms. However, it is more serious for people who are elderly or those that have diabetes, cancer or chronic lung diseases. Mortality rates are estimated to be at just below one percent with those with underlying health issues being most at risk.

As with all pandemics there are often consequences over and above the health ones. These include; economic slowdown, stock market crashes, interruption to the supply chain and, in an employment context, staffing concerns. This page explains the issues relevant to that last matter.

General Advice

It is everyone’s responsibility to help stop the spread of the virus and a few simple and common sense activities can go a long way to promote a healthy workplace:

  • Employers should keep all staff updated on the effect of the virus on the workplace.
  • Sickness policies should be reviewed and all staff should be aware of what to do if they feel ill and think they may have the virus. Managers should be trained in what to look out for.
  • Staff should regularly wash their hands thoroughly and perhaps a sign reminding employees of this could be posted in the washrooms.
  • Alcohol based sanitisers could be placed in strategic positions.
  • Travel plans should be reviewed, especially if they are to or from high risk destinations.

Sick Pay

Sick pay may be either contractual or under the Statutory Sick Pay (SSP) rules. If employees are unable to attend because they are sick, then payment under a sick pay scheme should be made. Under emergency SSP rules an employee will now get paid for from the first day they are off sick and, assuming they earn more than £118 per week, sick pay will be £94.25 per week for up to 28 weeks.

Budget update 11.03.20 –

The Chancellor of the Exchequer, Rishi Sunak, has announced that employers with less than 250 employees will be reimbursed SSP paid for the first 14 days of sickness.

Self-Isolation And Quarantine

Technically, this would not normally count as time off sick and therefore sick pay would not be due. However, the government have said that those who have been recommended to self-isolate (e.g. by a doctor or NHS111) should be paid.

However, where staff have decided that they would rather not attend the workplace because of the perceived dangers (open plan offices or cramped transport systems etc.), then the situation may be different. Here, the concerns of the staff should be taken into account and perhaps the situation should be dealt along the same lines as a grievance. Employers should be sympathetic and perhaps suggest alternative methods of working (from home or another office), taking unpaid leave or holiday. The employee will not, however, have any right to pay or sick pay if they decide not to attend work.

Non attendance when requested could be considered a disciplinary issue. Employers should, however, be very careful in taking such action. It is likely that Tribunals will be asked to take a very lenient approach in such circumstances and there is always the possibility that the employee may have a statutory right to refuse to return to their place of work if they reasonably believe there to be a serious and imminent danger. 

Ill At Work

Should an employee be taken ill at work with suspected Coronavirus they should:

  • Get at least 2 metres (7 feet) away from other people.
  • Go to a room or area behind a closed door and use a separate restroom, if possible.
  • Avoid touching anything.
  • Use a tissue and bin it or cough and sneeze into the crook of their elbow.
  • The unwell person should use their own mobile phone to call either 111 or, in a serious case 999.

Lay Offs, Short Time Working & Enforced Holiday

Many firms may be considering laying staff off or shortening hours during this crisis. The general rule is that this is allowed if the contract has a specific term stating this. If not, then the changes to the terms of the contract will have to be agreed between the parties. Special rules apply to short-time working and time lay-offs, including guaranteed payments in come cases. See gov.uk site for further information.

Enforced changes may mean that the employee has a potential constructive dismissal claim. Zero hours or atypical contracts may allow the employer to reduce hours in the same way.

Other employers may wish staff to take holiday for a short time to ease staffing issues. Again, the contract may deal with this. However, in the absence of a specific clause, the employer may try to force holiday to be taken under the Working Time Regulations. Here the employer should give twice the amount of notice as time required to be taken off.

Watch our Vlog on lay-offs, short-time, redundancies and furlough leave.

Workplace Closure

Some employers may decide to close a place for work if the risk is high. Here, employers may put in place alternative provisions; perhaps working from another location or from home. Employees should be as flexible as they can in such situations. However, as long as the employee is able to work then they should be paid.

The government guidelines are that such closures are unlikely to be common and there is generally no requirement for employers to close the workplace (even where someone has Coronavirus) unless specifically asked to do so by the authorities.

Redundancies

Some firms are suffering under the strain and contemplating redundancies. Technically, the lack of work falls within the definition of redundancy; in that the employer is ceasing or intends to cease the role undertaken by the employee or that the requirements for a particular type of work have ceased or diminished.

Whilst the job/role may well be redundant and the employer may need to act swiftly, this does not mean that they can avoid the consultation process. This is particularly important where there are more than 20 staff being made redundant. However, this consultation process may be the opportunity for the employee to negotiate a temporary change to their contract, perhaps a short lay-off or reduced hours. Failure to consult may mean that the employee has an unfair dismissal claim.

Normal redundancy payments will be due as will notice and outstanding holiday pay. Note: payments will only be made to those with two years’ service. Contractual redundancy payments may also be due.

Support is likely to be available says the new Bank of England boss and firms should hold off.

Time Off To Look After Others

Employees are entitled to a ‘reasonable’ amount of time off to take ‘necessary’ action to provide assistance where a dependant falls ill. This has become known as ‘time of for family emergencies’. In practice, this has allowed (usually) parents to take unpaid time off when a child is ill and no one else is available to help. It is very much an ‘emergency’ right and the parent should take steps to regularise the situation as soon as possible. Of course, this also applies to those looking after elderly parents or disabled family members.

With perhaps a long-term absence from school, because it has temporarily closed down, or self-isolating for a couple of weeks, the employment relationship may become stained. However, employers and employees should work together in these unusual circumstances, perhaps by the employee taking holiday or making up time later.

Discrimination

If any employee receives detrimental treatment because of their association with, say, China or northern Italy, then this may amount to discrimination. Difficult situations often promote a degree of dark humour and internet jokes will always ‘do the rounds’, but employees should take care or, perhaps, need to be reminded that what one person may consider humour, another will be offended by.

For further information and advice, please contact Ian Pearson or Stephen Forsey and keep a watch on our Facebook page @AmicusLaw

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