On 17 March 2020: the government published details of the Coronavirus Bill which includes emergency legislation proposed to deal with the current Coronavirus-Covid19 situation.
Key points to note:
- The laws will be limited for 2 years
- Not all parts of the law will come into effect immediately and may be staggered depending on need, and then switched off again when no longer needed.
- The government will be able to temporarily suspend the three day waiting rule for Statutory Sick Pay (SSP) payments so that SSP will be payable from day 1.
- The new SSP rules will have retrospective effect from 13 March 2020. So will apply to anyone with the virus or self-isolating with symptoms since the 13th March 2020.
- Employers with fewer than 250 employees can reclaim SSP paid in respect of the first 14 days of sickness absence related to Coronavirus-Covid19 only.
- Emergency volunteer leave will be available to employees and workers who can take blocks of 2, 3 or 4 weeks unpaid leave if they wish to volunteer to help with the consequences of the outbreak in the UK.
- A compensation fund will be available for those employees who volunteer and have lost earnings if they volunteer thorough an appropriate authority.
- Changes will be made to the NHS pensions rules to allow experienced and skilled staff who have recently retired to return to work.
Employment Tribunals in England and Wales have cancelled all in-person hearings.
From Monday 23 March 2020, all in-person hearings at the Tribunal offices will be converted to a case management hearing by telephone or other electronic means.
Key things to consider
- Prevention planning and implementation
- Business Continuity Planning
- Workforce / Employee planning
We have set out some of the key issues that may arise in respect of employees.
It is important to note that this is a developing area and guidance may change as matters develop.
The guidance here is up to date as of the 9th March 2020.
What if the Employee returns from holiday in an affected area but has no symptoms or obvious exposure?
- Notify all staff in writing that they must inform you of the location of their holiday if travelling outside of the UK.
- Inform staff that if the place that they are travelling to is on the current list provided by the Home Office of affected areas or becomes added to the list then they are required to notify you of any symptoms at any time.
- You may also want to consider implementing a minimum of 48 hours between landing in the UK to returning to the workplace. Given latest guidance on the time that it can take for symptoms to arise this length of time may not be sufficient.
- If you take the precautionary step set out above, you have a couple options in terms of how to treat this time;
- state that they must take the additional time from their holiday entitlement (you will need to check your employment contracts to check you already have the right to do this);
- if they can work from home, then inform that that they are required to do so;
- they must make up the time in lieu in future; or
- you can give them the time as additional paid leave.
- Whichever option you choose to use ensure that this is communicated to all staff at the earliest opportunity.
- Implement your decision into a policy – which should be reviewed and revised regularly.
What if the employee has possible exposure from someone who is infected and is advised to remain at home by a medical professional or on medical advice issued?
- The employee should be encouraged to follow the medical advice and if you have a reluctant employee, my advice is that you have a duty of care to other staff to insist that the employee does remain in isolation.
- Although the employee may not actually be sick the guidance recently released from the Health Secretary Matt Hancock is that they are entitled to Statutory Sick Pay (SSP). It also appears from the Statutory Sick Pay (General) Regulations 1982 that if someone is self- isolating because they are given a written notice to do so by their GP or 111 then they are deemed to be incapable of work.
- You may have seen in the news that on Wednesday 4th March 2020 Boris Johnson stated that the government would be changing the rules in respect of SSP so that it is available from day 1 of self-isolation/sickness. At the time of writing no details have been released but please check back to our website www.adviceforemployers.co.uk/coronavirus for more information, or give us a call in the office..
- If your employees are entitled to contractual sick pay, then you will need to check the wording of their contracts or sick pay policy to see if this would be payable in these circumstances.
- If the individual has not received medical advice or instruction to self-isolate and they are fit for work (i.e. not actually sick) then there is no requirement to pay them, however you may do so at your discretion or make other arrangements.
- According to Public Health England the period of self-isolation required is 14 days.
Closure of the workplace or requiring staff to stay away from the office due to concerns?
- If you decide to close the workplace you can make arrangements for staff to work from home, in which case, as they would be continuing to work employees would be entitled to normal pay.
- If home working is not available, you would be obliged to pay staff their normal pay.
- Your contracts may allow you to stipulate that employees must take holiday from their holiday entitlement, but this may not be advisable, particularly if the closure is going to be for an extended period of time.
What if an employee has the virus?
- If an employee has the virus then they would be entitled to statutory sick pay and/or contractual sick pay (if you offer it) as they are unfit for work.
- You have an obligation to ensure that they remain at home and do not put others in your business at risk.
- If there is a possibility that they have exposed other staff to the virus you should think seriously about requiring all employees to remain at home for a period of self-isolation. It may be costly in the short term but will prevent full outbreak in your workforce if you do so.
What if an employee wants to stay at home because they are worried or of a nervous disposition?
- Handle this person sensitively and through discussion. If the employee falls into the high risk category, then their fears may be genuinely held.
- Seek to allay their fears and put in steps or measure that would reassure them.
- If there is no compromise and no option to enable them to work away from the workplace then you need to consider carefully how you handle the situation. It may be that you offer them unpaid leave during this time.
- We recommend that you seek advice if you have an employee who insists on staying home for an extended period with no justification or compromise.
What if an employee refuses to stay at home?
- The first step is to discuss with them and see if you can allay any fears or concerns, they may have.
- If, after discussion and explaining the reasons, they continue to refuse and insist on coming into the workplace you could treat this as a disciplinary matter due to their failure to follow a legitimate instruction.
- You need to weigh up your duty of care to other staff verses the decision to enforce and discipline the employee.
What if the employee cannot work as their child’s school or nursery is closed?
- Employees in these circumstances have the right to take time off for dependants which includes the right to take time off to care for a child in such circumstance.
- The right to time off for dependant is the right to take (limited time) unpaid leave.
- It is intended to be used by employees for short periods whilst they make alternative arrangements for the care of the child.
- In the event that the closure becomes long term then you will need to consider how best to deal with this, particularly if the employee is unable to obtain cover, because of the spread of the virus, for example.
- Consider if alternative arrangements can be made to enable them to work flexibly or from home.
Points to note
- As an employer you have a legal obligation to protect the health, safety and welfare of staff, customers and visitors to your premises.
- There are employees who may be at higher risk such as those with a disability, an underlying existing condition, are over 60 or are pregnant. Ensure that you factor these higher risk employees into any plans.
- Your normal obligations to make reasonable adjustments for disabled employees applies.
- You have responsibility to prevent discrimination and harassment within your business. It has been reported that instances of abuse towards those of Chinese origin has increased since the virus has spread. Ensure that you are mindful of this and share your equality policy to staff as a reminder.
Action to take today
- Issue a notice to all staff requiring them to inform you immediately if they are at risk because of travel to a location deemed by the Home office to be a risk.
- Issue a notice to all staff reminding them of the requirement to properly wash their hands and contain any coughs and sneezes.
- Encourage good hygiene in the workplace and consider increasing cleaning and providing additional sanitising equipment and materials.
- If your business is such that customers and visitors come onto your premises, display additional notices about hand washing, provide sanitiser and put up notices asking customers to inform you if they have been to one of the affected areas in recent weeks.
- If you intend to implement a policy of minimum time between returning from holiday to returning to work, notify all staff and inform them how you plan on dealing with this time. If you are going to require them to take holiday for example for these extra days make it clear that you are doing so and refer to the relevant part of your contracts and/or procedures.
- Review your business continuity plan.
- Consider your ability to work from home and explore what resources are available to you to enable your business to continue to operate as smoothly as possible.
- Assign one or two senior people in the business as responsible for monitoring the situation on the www.gov.uk website and within the business.
- If in doubt seek advice. We are talking to businesses on a daily basis about these issues and we can share best practice, latest advice and support with you.
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:
- 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.
- Having reliable and effective systems for communicating with employees. A business must ensure that:
- 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
- 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.
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.
- 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:
- A government toolkit aimed at helping organisations identify critical parts of its infrastructure (for example, information, stock premises or staff)
- 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.
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:
- review their key contracts if they think there is any risk that an outbreak of disease could cause a breach;
- 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;
- 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.
If you have any questions or would like to stay up to date, please contact us.
Alison Colley at Real Employment Law Advice.
Phone: 023 8098 2006 Email: [email protected]
Albert Bargery at Real Employment Law Advice
Phone: 01983 897003 Email: [email protected]
Miranda Amos at Real Employment Law Advice
Phone: 01722 653001 Email: [email protected]
This guide has been produced for the purpose of information only. It should not be substituted for obtaining legal advice that is specific to the particular circumstances. The content is also valid as at 6 March 2020 and therefore you should ensure that you check the up to date position as employment law changes on a regular basis. © Copyright 2020. Real Employment Law Advice.
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