Coronavirus and the workplace

Cato Solicitors

If you want a quick and handy “to do list” as an employer please go to the Acas advice sheet here

In more depth:- Business Continuity Businesses should start making plans for what to do if they close the workplace or part of the workplace.

A business has a duty to protect the health and safety of its employees.

Reliable and effective systems must communicate government advice as it develops. Businesses must take steps to ensure there is good hygiene in the workplace.

Businesses must ensure that working practices do not pose undue risks to employees in regard to this threat.

Actions could include:

- a. practical training of employees to ensure they are following guidance;

b. increasing cleaning routines, particularly telephones and door handles, during the present crisis;

c. carrying out risk assessments to identify groups at higher levels of risk.

Can a business suspend employees who are showing symptoms or have travelled from high-risk areas?

Do you have a genuine and reasonable perception that allowing such an employee to remain at work puts your other employees at risk?

In our view, it is unlikely to be a breach of contract (expressed or implied terms) to ask employees to stay at home in such circumstances but:

a) check the employee’s contract first;

b) draw up a policy so that the matter is dealt with appropriately and sensitively and discrimination avoided.

An employee suspended in these circumstances should normally be paid.

Does a business have to pay an employee who is self-isolating or has been quarantined?

The Acas guidance deals with the employee who is actually ill.

Acas also advises that if an employee is in self-isolation or quarantine there is no legal statutory right to be paid "…. But it’s good practice for the employer to treat it as sick leave and follow their usual sick pay policy or agree for the time to be taken as holiday …"

We have two comments on this advice.

Firstly, Section 151 (4) of Social Security Contributions and Benefits Act 1992 states that statutory sick pay “starts” on:

- the day on which the employee concerned is, or is deemed in accordance with regulations to be, incapable by reason of some specific disease or bodily or mental disablement of doing work which he can reasonably be expected to do under that contract.

Acas are right to point out that this does not necessarily cover self-isolation or quarantine.

(We do not agree with the advice the Health Secretary Matt Hancock appeared to give on LBC Radio on 03 March 2020 that self-isolating or quarantine clearly falls within Section 151(4) on present case-law.)

Our opinion is that if an employee is self-isolating they do not have a right to SSP, but do have the right if officially quarantined.

The Act does not give guidance on the application of any express or implied terms in the employee’s contract, so read it to make sure.

Such terms may give an employee a right to continued pay in these circumstances, whatever the statutory rules.

Employees who do not want to come into work

If employees have a genuine and reasonable fear of contracting Coronavirus by attending work dismissal is likely to be outside the range of an employer’s reasonable responses – in other words, an unfair dismissal.

This could change over time. For example, a dismissal may be fair (following the correct procedure of course) if the employee’s absence persists over weeks when no other member of the workforce has contracted Coronavirus.

In disciplining any employee consider the implications of Section 100 of the Employment Rights Act 1996 – if an employee refuses to return to their place of work because they believe they are in danger which is “…serious and imminent…“ and they are dismissed as a result, such a dismissal will be “automatically” unfair. “Automatically” also means that the employee does not have to show two years continuous employment in order to bring a claim for unfair dismissal.

We cannot give specific advice without being instructed, but if you have a general question, we will endeavour to reply to queries within 36 hours.

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