The Coronavirus: What do employers need to do?

Key risks in a Pandemic or crisis

The Coronavirus continues to cause widespread panic around the world while world leaders continue to disagree over the best treatment and the best way to halt the spread of the disease. So, what should businesses be doing to cope with this, and continue to trade and thrive in this climate of uncertainty?

We have set out further guidance and up to date information on our dedicated page here: www.realemploymentlawadvice.co.uk/coronavirus

Key risks in the event of a pandemic

Generally, the key practical risks for most organisations resulting from the occurrence of a pandemic fall into one of the following categories:

• Employee
• Supply chain and commercial
• Insurance

In addition, there are wider risks that a business will face following such an event including strategic risks; broader operational risk beyond that of supply chain/commercial; the resultant position of its customers following the event; financial and legal compliance.

Business continuity planning

Of course, the occurrence of a pandemic cannot be controlled. However, a business can take steps to mitigate the resultant impact through business continuity, disaster recovery or serious incident planning. For many businesses, this type of planning is mandatory with some insurers, customers, government bodies and accreditations (such as The Law Society of England) requiring it.

Businesses should:

• consider monitoring events in each of the business’ relevant locations and also those of key suppliers where interruption in their output would have a significant knock-on effect;
• look at the risks and planning mitigating actions and responses;
• incorporate in their business continuity planning opportunities for ‘upsides’ to these disruptive events.

Several publicly available documents provide a starting point for business continuity planning. These include:

1. A government toolkit aimed at helping organisations identify critical parts of its infrastructure (for example, information, stock premises or staff)
2. Cabinet Office guidance aimed at helping businesses with their resilience planning for emergencies

These each provide solid guidance but ultimately each business is distinct, and it is impossible to provide a generic, one-size-fits-all approach that can simply be applied across different businesses.

Ultimately, each must carry out an exercise in business continuity risk assessment and implement a proportionate plan in response. Fundamentally, this plan should be reviewed annually to ensure that it remains fit for purpose and considers changes that have taken place within and across the business since the last review or implementation (including with key suppliers and customers).

If a significant change takes place externally to, within or across the business outside of this review cycle (such as Brexit), an acquisition or the entry into a joint venture, then this should similarly trigger a business continuity review to ensure that the changes are adequately incorporated into the business’ plan and that it remains fit for purpose.

Employee risk in the event of a pandemic

Duty to protect the health and safety of employees

During a pandemic, a business must keep itself and employees informed about related health risks. Actions could include:

1. Having a system or means to keep abreast of government advice on any current issue, as it develops. This can be an internal system or one that has been established via a third party such as a law firm or risk management business.
2. Having reliable and effective systems for communicating with employees. A business must ensure that:
3. contact data (email, work telephone, personal telephone and address) held within any such system is reviewed and updated on at least an annual basis to account for the common regular change in personnel and personal data; and
4. there is an emergency communication system in place in the event that normal means of communication cannot be accessed or utilised. An example of this is where email functionality is not available, and a business needs to turn to personal telephone contact details.

Fundamentally, in the event of a pandemic, the business must also take steps to ensure that there is good hygiene in the workplace (based on the facts and science of the pandemic itself) and that working practices do not pose undue risks to employees. Actions could include:

• Reviewing systems of hygiene to ensure that they provide appropriate protection. Practically, training or communications to all staff about why these practices are required often boosts compliance beyond a simple mandate about doing so.
• Increasing the cleaning of hard surfaces in the workplace, particularly phones and door handles.
• Carrying out a cost/benefit analysis for offering flu injections (or any similar preventative measure depending on the pandemic) to the workforce. Communicating the potential benefits of the preventative measure for the employees, their families but also those who may be unable to have this (for example, those who cannot have it due to allergies) may help to increase the uptake.
• Carrying out a risk assessment to identify any higher risk groups, such as those who have a high level of contact with each other; pregnant staff or any crèche/childcare services company has on site.
• Where employees travel to high-risk areas (and particularly where the UK government or a relevant foreign government has advised against this travel), the business must check whether their travel insurance will still provide cover for medical repatriation; that local care is available or suitable or whether specialist travel protection from a third party is required or desirable.

Absenteeism

Where employees should not come into the workplace

During a pandemic, employers will face a conflict between the need to keep genuinely sick employees away from the workplace and the need to prevent unauthorised absence. However, in these circumstances, concerns about whether someone is a malingerer should give way to the very real need to prevent the spread of the disease.

• Workplaces that have a culture of encouraging employees to struggle in when they feel sick will need to change their approach; indeed, not to do so could expose them to claims for breach of contract.

It is possible that employers could benefit from insisting that those who are unwell stay away from work for reasons other than limiting the spread of the virus within the workplace.

• A well-advertised and drafted sickness policy of this kind might help employers reassure healthy, but worried, staff that the workplace is relatively safe.

During a crisis, employee safety must be held by the employer as a priority, be that safety during the commute to work, business travel carried out in the course of their work or even access to a working site.

• This must be monitored on an ongoing basis during the crisis, not be a one-off assessment, and any recommendations resulting from this should be timeously communicated to the affected employees.

The hardest thing to manage is likely to be employee fear, particularly if there is public consensus that staying at home is safest.

• Employees should be required to attend work as normal, unless there is a particular risk posed in that workplace or in getting to and from that workplace. Employers should take their cue from the government and generally implement their common sense.
• It would be good practice for employers to consider requests to work from home during a period of civil unrest. During a pandemic, similarly it would be good practice to allow these home working requests or consider the flexibility to commute outside of rush hour particularly for those employees who are pregnant or who have weakened immune systems.

A right to suspend

If there is an identified risk that an employee may have been exposed to coronavirus then it is understandable, in light of an employer’s duty to protect the health and safety of other employees, that the employer would wish to keep that employee away from the workplace until the risk has passed. Ultimately, the employer may regard the risk of allowing the employee to remain at work as outweighing any employment law risk which could exist in suspending them.

In terms of the employment law position, the employer should consider whether it has an express right to require the employee to stay at home. The question is then whether there is an express or implied right for the employee to attend work in these circumstances. It would be unusual for the employer to have provided the employee with an express right to attend work regardless of circumstances, and there is no general implied term requiring an employer to provide work provided it continues to pay the employee’s wages. It is therefore unlikely to be a breach of implied duties to require an employee to stay at home in these circumstances, assuming there are reasonable and non-discriminatory grounds for concern, and the matter is dealt with appropriately, proportionately and sensitively.

• Employers should note the importance of dealing with suspension in this context sensitively and proportionately. A failure to do so could amount to a breach of the implied duty of trust and confidence.

A right to pay

In terms of pay, consideration would need to be given to the terms of the contract of employment.

• If the employee is not, at the point they are suspended, unfit to work, then it is unlikely that they are entitled to statutory sick pay (SSP), because they are unlikely to meet the statutory definition (for the purposes of SSP), of a day of incapacity.
• If they were diagnosed with coronavirus, or otherwise became too unwell to work, then the position would, of course, be different.
• Where they are being suspended on health and safety grounds, because of a possible risk of infection, it is likely that they have the right to continue to receive full pay (in the absence of a contractual provision to the contrary).

Where employees cannot come into the workplace

In the event of a pandemic, staff may be unable to come into the office due to adherence to civil emergency guidance to remain at home.

Where employees cannot or should not come into the workplace, the business should have contingency plans for staff absence. In particular, they should:

• Identify their key staff and decide what to do if they are absent.
• Review or consider remote working structures and practices for key staff where possible.
• Ensure that the business’ technology is suitably equipped for remote working where this is a possibility. This is not only considering the availability of hardware that is set up for remote access, but also ensuring that there is access to key know-how and data. This can be as basic as ensuring that hard copy documents are scanned and available electronically on a remote basis.

Company policy review and procedure

In the event of a pandemic:

1. Employers should note their employees’ statutory and contractual rights but review relevant policies (such as those relating to sickness, absence or dependant leave, travel and homeworking) and procedures, considering how these might need to be modified.

2. Procedures in the event of a pandemic may include suspending the normal practices around return to work, sick pay or dependant leave. For example, while a company sickness policy may require an employee to return to work as soon as they are feeling well enough, a person suffering from pandemic flu should not return to work until they have received medical advice confirming that they are unlikely to be infectious.

3. Employers may need to give their employees more time off to care for dependants than normal. The statutory rights to dependency leave are limited and designed to allow a carer to put in place arrangements for the care of a dependant. If dependants become very seriously ill, or care arrangements are hard to come by as a result of a pandemic or civil emergency, it would generally be felt to be unrealistic for employers to expect people to take only their minimum entitlements. While in normal circumstances this might lead to disciplinary action, the importance of enforcing the rules may dwindle in comparison to the crisis.

4. Employer and employee may come into conflict over issues such as length of leave and whether such leave should be paid or unpaid. Employer discretion may have to come into play and whenever discretion is exercised, an employer can be vulnerable to allegations of discrimination or breach of trust and confidence.

5. It is worth noting the potential employment contract effects in these circumstances where some employees will be required to work from home or to refrain from work for a period. Unless these issues are provided for in the contract, imposing these changes will constitute a unilateral variation giving rise to claims for constructive dismissal.

6. There may be other necessary measures that will impinge on the employee’s strict contractual rights. While consultation with employees or a trade union (where one is recognised) is normally called for in the event of contractual variation, this may not be feasible at very short notice. The possibility of these changes having to be imposed in future is something that could be drawn to the attention of employees (and union representatives) now, thus avoiding scope for conflict.

Supply chain and commercial risk in the event of a pandemic

As a result of a pandemic, businesses may either be unable to fulfil their contractual obligations or suffer loss because suppliers cannot fulfil theirs. Under normal circumstances, a claim for damages for breach of contract would be a possible remedy. However, if it is clear that the contractual failure was principally caused by an outbreak of disease, a claim for breach may not be viable if there is an applicable force majeure clause in the relevant contract or because the doctrine of frustration applies.

Yet the fact that these defences could be available does not mean that a business can assume it will get away with “flu” as an excuse for any contractual failure, and businesses should:

1. review their key contracts if they think there is any risk that an outbreak of disease could cause a breach;
2. assess what pre-emptive measures they could take to avoid this including stock-piling key materials or resources, or providing early delivery to customers where possible;
3. consider implementing a communication plan to engage with the counterparties of these key contracts in the event of a pandemic both from the early stages and throughout the affected period.

In a pandemic situation, there are always a lot of unknowns, fear and gossip. However, taking a calm, objective and reasonable approach to balancing your staff and business needs, and taking advice from government agencies, your business should manage and continue to operate.

Photo by Dimitri Karastelev on Unsplash

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