Tina Chander is a partner and head of the employment team at leading Midlands law firm Wright Hassall, dealing with contentious and non-contentious employment law issues. She acts for employers of all sizes, from small businesses to large national and international businesses, advising in connection with all aspects of employment tribunal proceedings and appeals…
While the coronavirus outbreak (officially covid-19) has raised serious health concerns, its impact on stock markets around the world has become an issue for businesses and the way they undertake commercial activities. The government has now confirmed that workers will get statutory sick pay from the first day off work, not the fourth, to help contain coronavirus, arguing people who self-isolate are helping protect others from the virus and should not be penalised, but this raises more questions about sick-pay and working from home. Despite the relatively low number of cases in the UK, employers with globally connected workforces will need to monitor the impact of the outbreak and take steps to protect their employees where necessary.
Reducing the risk to employees
The sensible course of action for employers to take at this stage is to note the advice given by official bodies and ensure that this is shared throughout the workforce. Guidance on issues such as handwashing, disposing of tissues and so on should be shared via the most effective means dependent on the type of workplace; e-mail, calls, meetings – whatever works best to ensure people know want measures are being recommended.
Given the action that should be taken if an employee suspects they may have picked up the virus, it would be sensible to designate an available space as an ‘isolation room’, to which any such employee could retire while calling 111, ideally using only their own mobile phone.
Other steps to take include:
Ensure that the contact numbers and emergency contact details of all members of staff are up to date
Ensure that managers are aware of the symptoms of the virus and how to spot them
Disseminate information across management on issues such as sick leave and sick pay, and the procedures to follow if an employee develops symptoms of the virus
Ensure that facilities for regular and thorough washing of hands are in place, including hot water and soap
Dispense hand sanitisers and tissues to employees
Weigh up the pros and cons of supplying protective face masks to employees who may be working in particularly high-risk scenarios
Given the advice around hand-washing in particular and the length of time suggested to do it properly (two ‘happy birthdays’), organisations should advise all their employees to wash their hands thoroughly and let them know they will not be penalised for the extra time taken. Good practice starts with good communication and regular updates for all employees, by e-mail, note on the desk, poster on the noticeboard, update on the intranet and son will demonstrate that the organisation is taking the situation seriously and doing all it can to protect its workers.
What to do if an employee becomes unwell
If an employee exhibits the symptoms of the virus, they should be removed from the proximity of their colleagues, placed in the designated ‘isolation room’ and encouraged to follow precautions such as avoiding touching any surfaces, coughing or sneezing into a tissue and disposing of it immediately, using a separate bathroom if one is available. When calling NHS 111, the employee should be advised to give the operator the following: their symptoms and the name of any country they’ve returned from in the past fortnight.
Uncertainty over the seriousness of the virus, the exact nature of the symptoms and concern about the situation regarding issues such as sick pay may lead to some employees coming to work despite having contracted the virus, without necessary feeling unwell. If this does happen, then an employer should contact the local Public Health England (PHE) health protection team and they will discuss the details, identify anyone who has been in contact with the employee in question, carry out a risk assessment and outline any precautions which should be taken.
The position on sick pay
If an employee is off ill with the virus then the legal situation regarding sick pay is the same as it is with any other illness. However, the employee is now entitled to statutory sick pay from the first day of work, not the fourth. The complicating factor surrounding this virus, however, is the government advice for people returning from high risk areas is self-isolation for 14 days.
The government has stated that if NHS 111 or a doctor advises an employee or worker to self-isolate then they should receive any statutory sick pay due to them, or contractual sick pay if this is offered by the employer. An employer also needs to demonstrate flexibility on issues such as the fact that an employee who is self-isolating may not be able to get a ‘fit-note’.
In some cases, employees may be able to work from home while in self-isolation. However, in many cases, if an employee cannot attend their place of work, they will be unable to work, as in the case of those working in frontline services in hospitality and catering, as well as the care sector, healthcare, cleaning and the emergency services.
Currently, there is no bespoke advice for specific industries, but as the impact of Coronavirus spreads, we may see more advice and contingency plans develop to ensure essential and core services, like the food supply chain, pharmaceutical manufacturers and energy suppliers continue to operate.
In some cases, an employer might prefer an employee not to come into work – if they’ve returned from a high-risk area, for example – and in these circumstances the employee should receive their usual pay. Employees may be reluctant to come into work due to general concerns about the virus, particularly if they belong to a group at higher risk of complications, like those with existing medical conditions or the elderly. In such cases you should offer flexible solutions such as working from home if possible. Alternatively, although there is no legal obligation to do so, you could offer the time away from work as a holiday or unpaid leave.
Ultimately, there is no obligation on an employer to allow an employee to stay away from work and, if the non-attendance causes issues or extends beyond an emergency precaution, then an employer is entitled to take disciplinary action. There are some scenarios in which an employee may need to take time off work to look after a dependant as a result of the virus, such as the case of a child needing care because a school has been closed down. There is no obligation to pay in circumstances such as these, and the decision will be based upon wider workplace policy.
As things stand at present it is still unlikely that any workplaces will have to close as a result of the virus, but it’s a potential risk and organisations should have contingency plans in place. These should include making sure that employees will be able to get in touch with the employer and any other members of staff they need to liaise with; and ask employees to take mobile, tablets and mobile phones home with them to work from home.
It may pay organisations to review any supply contracts they have to understand the implications of their business activities being interrupted by the virus or government advice, with the position on whether insurance would cover covid-19 losses remaining unclear.
No time to be divisive
Employers must also take steps to ensure that no members of staff, customers or suppliers are treated differently because of their race or ethnicity. It may be appropriate to remind staff that jokes and banter, even if light-hearted, may easily slip over the line to become unlawful harassment and/or discrimination, for which an employer may be liable. Employers can avoid liability if they can show they took ‘all reasonable steps’ to prevent employees behaving in such a manner. Taking reasonable steps can include having well publicised diversity and harassment policies and training all staff on the issue. Managers must also be trained about their responsibility to identify and prevent discriminatory behaviour.
Wright Hassall is a top-ranked firm of solicitors based in Warwickshire, providing legal services including corporate law, commercial law, litigation and dispute resolution, employment law and property law. The firm also advises on contentious probate, business immigration, debt recovery, employee incentives, information governance, professional negligence and private client matters. For more info, go to www.wrighthassall.co.uk