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In the event of a widespread coronavirus outbreak in the UK, employers will need to think through how they’ll respond to some difficult employee related issues within the broader context of business continuity planning. This Q&A identifies some of those employee related considerations.
Q: Should we discuss absence related contingency plans with recognised trade unions, workplace representatives or other staff groups?
A: Yes, very much so. In the event of a widespread coronavirus outbreak, it is quite probable that certain aspects of normal workplace culture and norms would have to be modified or suspended. Employers may not always have the “contractual right” to make certain desired changes. So successfully managing the extreme circumstances associated with a widespread coronavirus outbreak would require significant goodwill and cooperation from employees.
Q: What legal duties do we have in the event of a widespread coronavirus outbreak?
A: Your normal legal duty to protect the health and safety of all of your employees would naturally continue to exist, including keeping abreast of the latest developments relating to health risks, and doing so from reputable sources. Employee safety has to be considered in the context of the commute to work, work related travel as well as time spent actually at work. Employer monitoring of all coronavirus related risks must happen on an ongoing basis, as opposed to being a one off event. Risk assessments should be carried out to identify any particularly high risk groups.
Q: What would a widespread coronavirus outbreak mean in practice for managing staff absence?
A: You would face a conflict between the need to keep genuinely sick employees away from the workplace and the need to minimise unauthorised absence. In such extreme circumstances though, the need to minimise the spread of coronavirus would take precedence over concerns about malingering.
Q: What about employees who come into work even if feeling unwell? How do we manage that?
A: Many workplaces have a culture of “struggling in” when feeling unwell. This culture would need to change quickly, and that message would need to be emphasised strongly from the top-down.
Q: In the event of a coronavirus outbreak, are staff entitled to be paid sick pay if they cannot come into work because they themselves are ill?
A: That will depend upon the terms of their employment contract. Employees unfit for work will certainly be entitled to SSP, but whether they will be entitled to sick pay over and above SSP (“Occupational Sick Pay”) will depend upon what their employment contract says. If your employment contracts with your staff state that you pay Occupational Sick Pay to employees at your "discretion", you may be well advised to think through how you propose to exercise that discretion in the event of a coronavirus outbreak, and tell your employees accordingly. That way, they would then know in advance where they stand. And if you are going to generously exercise discretion concerning Occupational Sick Pay, this will likely have the added benefits of securing goodwill and cooperation in respect of any other less favourable changes that you also need to make.
Q: Is working from home an option?
A: Fear would become a key consideration in the event of a widespread coronavirus outbreak, and more people are likely to want to work from home when well. For those employees with roles which could feasibly be undertaken from home, employers are likely to receive a huge number of requests to do so. Advance planning for the feasibility of this would be prudent, including the creation of home working policies and associated related risk assessments.
Q: But can an employer compel an employee to work from home?
A: Not if doing so is not permitted by the employment contract. But, in practice, there is likely to be an increased and widespread employee preference to work from home, so disputes about this should be less frequent than disputes where employers say “no” to working from home.
Q: What about an employee who may be coming down with coronavirus, or who is getting over a suspected case of it but wants to come into work? Can we insist that they don’t come into the workplace?
A: Given your duty to protect the health and safety of other employees, if you reasonably believe that there is still a risk of infection, provided that the situation is handled sensitively and proportionately, the law would probably permit you to instruct the employee to stay away from the workplace until the risk of infection had passed.
Q: But is telling that person to stay away totally "legal risk free"?
A: No, not totally. So sensitivity and proportionality when assessing risk is of paramount importance. But in those circumstances, and provided that you don’t act in a way that is discriminatory, instructing an employee to stay away from work is unlikely to represent a breach of the implied term of mutual trust and confidence, or be otherwise unlawful.
Q: Would we have to pay an employee who we've told to stay away but who wanted to come in?
A: In theory, a written employment contract could state that there is no obligation to pay an employee in those circumstances. But in reality, most employment contracts do not specifically address this point. So, if an employee insists that they are “ready and willing to work”, but you don’t permit them to work, there is a significant risk that not paying them could represent both a breach of contract and an unlawful deduction from wages.
Q: Which of our written policies and procedures should be reviewed?
A: At the very least, policies relating to managing sickness absence, home working, work-related travel and taking time off to care for dependants.
Q: Would legal entitlements to take time off to care for dependants change in the event of a widespread coronavirus outbreak?
No, not "legal" entitlements. But, in practice, it is likely that employers would need to give their employees more time off than they have been used to in order to care for close family members who have become seriously unwell.
Q: Would time off to care for close family members be paid or unpaid?
A: Unless the employment contract or your policies state otherwise, the statutory right to reasonable time off to care for dependants is without pay. But if you want to be more generous, you can. Just make sure that your generosity is transparent and consistent in order to minimise the risk of discrimination claims.
Q: What additional steps should be taken to ensure hygiene in the workplace?
A: The specifics would depend upon the type of workplace but, as a minimum, active encouragement of regular hand washing, the carrying and safe disposal of tissues, and the liberal use of sanitising hand gel would be sensible. It would likely also be essential to increase the frequency with which hard surfaces are cleaned, particularly telephones and door handles.