Legal

Coronavirus – The implications for employers – update

By Sintons LLP
March 2020

As several European countries announce their first coronavirus cases, and the UK starts to feel the impact in terms of individuals returning from their travels, we focus on some potential implications for employers.

Pay

The Heath Secretary, Matt Hancock, has confirmed that Britons returning from quarantined towns in northern Italy must self-isolate and stay at home, even where they have no symptoms. Holiday makers could also be affected by lockdowns like the one currently in place in Tenerife. Ordinarily, employees are only entitled to receive pay when they are working or on authorised leave. So what is the position when employees are unable to attend work for reasons like those mentioned above?

Employees returning from a quarantined town/high risk area

Certain employees may be able to work from home and carry out their normal job with little disruption. If so, it seems sensible to make this as easy as possible in order to avoid unnecessary disruption to your business. However, for many roles that may not be possible.

Are employees entitled to statutory sick pay? If someone is advised to self-isolate and is given a written notice by a registered medical practitioner or Medical Officer for Environmental Health (e.g. by a GP or the NHS 111 service) they will be deemed to be ‘incapable of work’ for the purposes of the legislation governing statutory sick pay and therefore entitled to this (subject to meeting the normal eligibility criteria). This is the case where the advice is a precautionary measure or the employee is under observation by reason of being a carrier. Therefore, statutory sick pay can be payable even where an employee does not have symptoms.

The prime minister has now announced that there will be an entitlement to statutory sick pay from the first day of absence rather than the fourth (as is ordinarily the case), in order to help contain the coronavirus. This change is due to be introduced by emergency legislation but the finer detail is yet to be confirmed.

If, however, someone chooses to self-isolate and/or is not given such a written notice they will not be entitled to statutory sick pay. In this situation, employers should check for any additional contractual entitlement but in the absence of such, it will be up to the employer as to whether it decides to pay. Employers should bear in mind any potential impact on employee relations if they decide not to pay such pay in these circumstances.

The position of the Advisory, Conciliation and Arbitration Service (ACAS) is that it is good practice to treat any such absence as sick leave and follow the usual policy in this regard or agree for the time to be taken as holiday. However, this is not mandatory. This would also prevent the risk of an employee attempting to attend work for fear of losing pay and spreading the virus if they had it. The Department for Work and Pensions has confirmed that individuals who are prevented from working because of a public health risk will be able to claim universal credit.

Employees who are stuck abroad

Again, there may be a contractual right to pay if an employer has a particular travel policy which covers this eventuality If an employee does end up stuck abroad (through no fault of their own) it may be considered reasonable to continue to pay them until they could reasonably be expected to return but this will be entirely at the employer’s discretion and a fixed period might be appropriate to limit unexpected costs. Employers may decide to pay employees on a one-off discretionary basis or ask them to take the time as annual leave or unpaid leave.

Employee refusing to attend work

There may be employees who decide they don’t want to attend work because of fear of catching the coronavirus. Consideration should be given to the risks, as well as any government guidance. However, where there are no reasonable grounds for any such refusal to attend, disciplinary action is the next step. In the event of refusal, we would suggest an early conversation with an employee to try and resolve matters without recourse to formal internal procedures.

Employees unable to attend for childcare reasons due to a child’s school closing

A number of schools within the UK have now closed due to pupils and teachers returning from affected areas in northern Italy. What if there was an unexpected school closure meaning employees with childcare responsibilities weren’t able to attend work?

The usual statutory right to time off for dependants will apply in this situation, which is that employees have the right to take a “reasonable” amount of unpaid time off work to take “necessary” action to deal with the situation and make other arrangements i.e. organising alternative childcare. Although the legislation does not limit the amount of time that can be taken off, in practice this tends to be one or two days. That being said, what is reasonable will depend on the nature of the incident and the individual circumstances and this wouldn’t be an ‘ordinary’ situation. The statutory right to time off is unpaid. Any entitlement to pay would only be if there was a separate contractual one. If there is no contractual right to pay in such circumstances, then the decision as to pay will be down to the employer.

The statutory right could mean that a number of employees are suddenly absent at the same time in the event of a school closure. It would be prudent for employers to plan ahead now for such circumstances where possible e.g. look into the provision of agency workers.

Employees may also request further flexibility if they are experiencing a difficulty in attending work. Employers will need to be mindful of statutory and contractual duties in relation to requests for time off or flexible working arrangements.

Concerns in relation to trading

On a final point, if an employer’s business is such that it relies on supply chains which are then indirectly affected by the coronavirus, this could end up affecting the work they actually have for employees to carry out. If this is the case employers may wish to deal with such unforeseen circumstances by laying off employees or putting them on short-time working. Employers will need to check whether they have the contractual right to do so and be aware of the statutory guarantee payments. Otherwise there will likely be a normal redundancy situation where there is a diminished requirement for employees to do work the usual considerations in relation to a fair consultation process and statutory redundancy entitlements will apply.

The impact of the coronavirus outbreak on the UK as a whole is yet to be seen but employers should keep an eye on government guidance as it is updated.

If you have any questions in relation to this topic please do not hesitate to contact the employment team.

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