The Coronavirus (COVID-19) pandemic is giving rise to a number of challenges for employers. We have set out a list of Q&As for employers based on some of the questions we have been asked.
As is always the case with employment law, the usual caveat applies, in that this information is intended for guidance only and is not a substitute for legal advice. Employers should seek specific legal advice on the issues facing them.
We are in unprecedented times and the situation is continually changing. The government is updating its advice as the situation develops and we will update these Q&As in light of any further developments.
These FAQs are accurate as at 16 April 2020. Please check our website at Ellisons COVID-19 Business Support for up to date developments.
Absence & pay
The government announced on 23 March the closure of certain businesses, e.g. hair and beauty salons, clothing stores, restaurants and gyms. In addition, that everyone is required to stay at home for at least three weeks, subject to a limited exception for work which “absolutely” cannot be done from home.
Assuming the business can remain open and the employee’s work cannot be carried out at home, an employer could potentially take disciplinary action, for failure to carry out a reasonable instruction and absence without authority, where an employee unreasonably refuses to attend work. Where an employee is absent without authority they would not be entitled to any pay.
If an employee has concerns about their health and safety and/or they are in a vulnerable category, an employer should tread carefully (see questions 2 and 3 below).
It would be sensible to explain to employees the meaning of ‘lock-down’ and warn them that if they unreasonably refuse to attend work this could be a disciplinary matter. An employer should also give a warning on the impact on pay.
If an employee can work from home, this will resolve the issue.
If it is not possible to work from home, the employer should consider the latest public health guidance. The employer should discuss the situation with the employee to see whether it is possible to allay their fears. It might be possible to adjust hours of work, for example where the employee has to commute to work using public transport.
The context of the refusal would need to be carefully considered. There may be discrimination issues (see question 14).
Disciplining an employee for not attending work might potentially open up an employer to the risk of a claim. For example, an employee may be able to claim unfair constructive dismissal particularly if the employee is being asked to attend work when they can work from home. If the employer takes disciplinary action and dismisses, this could be an automatic unfair dismissal if there is a genuine health & safety risk, or where the employee believed that there was an imminent risk, for being required to attend work.
The government’s guidance here on shielding and protecting people for those who are extremely vulnerable will be relevant. This envisages social distancing; there is no requirement to stop an employee from working. Having said this, an employer should treat any genuine concerns sensitively and work to see whether there is a practical solution if the employee cannot work from home.
The usual employer’s contractual sick pay provisions.
The government announced on 17 March that it will reimburse employers with less than 250 employees any Coronavirus-related SSP they pay employees for the first two-weeks, backdated to 14 March 2020. The Coronavirus Act 2020 provides for further regulations to be made giving effect to the government’s announcement. Draft regulations have yet to be published.
HMRC has published guidance on how to claim back SSP and the records an employer must keep, which can be found here. It is unclear whether the government intends to issue regulations in addition to the guidance.
If the employee is unable to work SSP, and possibly enhanced sick pay where there is a contractual right (see question 9).
This falls within the circumstances in which public health advice is to self-isolate and they fall within the new deemed incapacity rules for SSP. Current guidance requires self-isolation for 7 days for those who are sick, however mildly. For those who live with someone who is displaying COVID-19, the guidance requires self-isolation for a period of 14 days. If they then start displaying symptoms themselves, they should self-isolate for 7 days from when the symptoms started.
The government has amended legislation removing the three-day waiting period for payment of SSP; this will be payable on day one. The legislation has been backdated to 13 March 2020.
If the employee can work from home and is well enough to do so, they will not be eligible for SSP and should be paid full pay where they are working.
If the employee cannot work from home and they are directed to self-isolate by a medical professional, they will be deemed incapable of work under the new deemed incapacity rules for SSP. Therefore, they will be entitled to SSP and, possibly, any contractual sick pay 9 (see question 9).
Public Health England have identified extremely vulnerable people who are strongly advised to remain at home, see details here.
If an employee has been advised to shield and they are unable to work from home they will be eligible for SSP, and possibly an entitlement to any contractual sick pay (see question 9).
On 16 April 2020, the Statutory Sick Pay (General) (Coronavirus Amendment) (No.3) Regulations 2020 came into force, so that a person will also be deemed incapable of work and eligible for SSP when they are isolating themselves because:
- they are defined in public health guidance as extremely vulnerable; and
- they have been notified that they need to rigorously follow shielding measures for a period specified in the notification.
The NHS identified those individuals who fall into this group and wrote to them separately to advise them to shield.
The government has said that those who are shielding in line with public health guidance can be furloughed.
This would depend on the circumstances.
- Employee sent home because they are showing symptoms
Where an employer is considering suspension, which falls within the circumstances in which Public Health England have said to self-isolate or shield and the employee is unable to work, the employer could treat them on sick leave and pay them SSP. See question 9 for the position on contractual sick pay. The current self-isolation guidance, which can be found here, is that anyone showing COVID-19 symptoms should self-isolate for 7 days.
- Employee sent home because of possible risk of infection
The current government guidance is that individuals should only self-isolate if they have or they are showing symptoms of COVID-19 or are living with someone who is. If an employer sends the employee home nevertheless on health and safety grounds because a possible risk of infection, it is likely that the employer will have to pay the employee full pay, as the employee is able and willing to perform the work.
See also question 11 below.
- Temporary closure of workplace
If the employee’s role is such that they cannot work remotely, generally they should be paid full pay, as they are ready and able to work, but the employer is not providing them with work.
If there is a lay-off clause in the contract, an employer can lay-off an employee for a period of time without pay (subject to paying a guarantee payment, which is currently £29 per day for a maximum of five days in any three-month period). If there is no contractual authority an employer will need to agree this with the employee.
A better option is likely to be placing the employee on furlough leave.
If the employee has symptoms which mean they are too unwell to come into work, they will be entitled to the employer’s usual sick pay provisions.
If the employee has mild symptoms, they have been advised to shield, or they live with someone with COVID-19 symptoms, this may not ordinarily have resulted in them taking sickness absence. Whilst these circumstances would bring them within the entitlement to SSP, whether they would also be entitled to company sick pay is questionable. It will be dependent on the wording of the contract. Where contractual sick pay is payable in circumstances where the employee is ‘sick’, we are of the opinion that the employee would not be entitled to enhanced company sick pay. There is no reason to imply a term in the contract that company sick pay follows the statutory pay scheme. The statutory sick pay scheme provides for a maximum length of entitlement and linked periods of sickness, which have no reflection on when company sick pay will be paid.
Nevertheless, employers may choose to pay full pay to ensure employees comply with government guidance, rather than trying to come into work.
If the employee cannot travel because they have contracted COVID-19, they should be treated as on sick leave and paid accordingly. The employee can elect to take holiday leave, but they cannot be compelled to do so.
If the employee cannot travel home because the country is in lock-down there is no right to sick pay.
It will be good practice for the employer to talk to the employee to look at the options, including whether they can work remotely or take holiday. If the employer had required the employee to travel on business, it would be advisable to pay the employee their full pay. The employer should check the travel insurance.
If an employee is unwell an employee will be entitled to the employer’s normal sick pay provisions, irrespective of whether an employee was advised not to travel.
It may be reasonable to withhold pay if the employee is self-isolating and is not unwell if the employee was warned that they would not be paid if they chose to travel. An employer will need to consider any contractual company sick pay provisions on whether it is able to do this (see question 9).
Employers will also need to consider whether with-holding pay gives rise to any potential discriminatory issues. This might indirectly indiscriminate against certain employees, e.g. those nationals from the relevant country, as withholding pay could disproportionately affect them. An employer can defend an indirect discrimination claim if they can show that the action is a proportionate means of achieving a legitimate aim.
Yes, where possible.
The government announced on 23 March 2020 that everyone is required to stay at home at least for three weeks, unless the work “absolutely” cannot be done at home.
Assuming that the employee is well enough to work, it would depend on the contractual terms. If there is a contractual term requiring the employee to work from home, it is likely an employer can compel the employee to work during self-isolation. Where there is no such term, it is unlikely an employer can do so. However, given that the employee would only be entitled to SSP, it is likely that most employees will agree.
On 21 March 2020, the government issued shielding guidance which sets out people they consider extremely vulnerable. An employer will need to think very carefully about whether they require an employee who falls into one of the vulnerable groups to come into work where their job cannot be performed at home.
An employer should discuss the position with the employee.
Requiring employees to continue to attend work could be indirectly discriminatory. Employers will need to consider whether requiring attendance at work is a proportionate means of achieving a legitimate aim.
If a disabled employee refuses to attend work and the employer does not facilitate remote working, there could also be a failure to make reasonable adjustments. Where an employee’s role is not suitable for home working medical advice should be sought as soon as possible to confirm or clarify the potential risks and whether any reasonable adjustments need to be made. Until an employer is able to obtain a medical report in these circumstances, it would be sensible to err on the side of caution.
The exception to this is that maternity leave will start automatically before an employee’s chosen start date where the employee is absent from work “wholly or partly because of pregnancy” after the beginning of the fourth week of expected childbirth. Leave will begin automatically on the day after the first day of absence.
A pregnant employee is “strongly advised” to socially isolate and work from home where possible. Where this is not possible an employer may need to medically suspend the employee (see question 16). A health and safety suspension could amount to absence “wholly or partly because of pregnancy”
The law requires employers to carry out a health and safety risk assessment and to alter any working conditions or hours of work to avoid any significant risk. If it is not reasonable to do so, or where such would not avoid the risk, an employer is obliged to offer alternative work on not “substantially less favourable terms”. Where this not available, or the employee unreasonably refuses it an employer will need to suspend a employee on full pay.
Normally it would not be appropriate to allow an employee to work from home whilst also providing childcare. However, given the closure of the schools, for all but key workers, employers should take a pragmatic approach. More flexible working may be required.
Yes, where it is not reasonably practicable to take as a result of the effects of the coronavirus.
The government passed emergency legislation amending the Working Time Regulations 1998 to permit the carry-over of basic working time holiday (i.e. 20 days derived from the Working Time Directive) in these circumstances. Carried-over leave may be taken in the two leave years immediately following the leave year in respect of which it was due.
It is not as yet clear what is meant by not reasonably practicable. ACAS guidance suggests it could apply where the employee is self-isolating and too sick to take the holiday or they have had to continue working. They also suggest that it could apply where an employee has been put on furlough leave, more information can be found here. However, in our opinion being placed on furlough leave does not prevent an employee being able to take holiday and HMRC have confirmed that an employee can take holiday whilst on furlough leave, as stated here.
An employer will need a very good reason for revoking holiday where this has already been authorised. If an employer unreasonably cancels holiday this could amount to breach of the implied duty of trust and confidence entitling the employee to resign and claim constructive dismissal.
Whether employer has time to do this could be an issue. To revoke holiday an employer will need to give the requisite notice under the Working Time Regulations 1998, which is the amount of time as the period of holiday it wishes to cancel.
Potentially, if the employee is not sick.
An employer should check that they have the contractual right to require employees to take holidays at any time. Where there is no contractual right the default provisions under the Working Time Regulations 1998 (WTR) will apply to the 28-day minimum holiday entitlement, which requires notice to be given. The position is unclear in respect of any contractual holiday above this, although we would suggest the employer applies the same principles. The required notice under the WTR is double the amount of leave the employee is required to take. Thus, if an employer wants an employee to take 5 days holiday, they will need to give 10 days’ notice.
On the basis of the case law on statutory annual leave and sickness absence, it is likely that an employee who is in self-isolation because they have, or are displaying symptoms of, COVID-19 will be entitled to reschedule their holiday.
However, if they are self-isolating because someone they live with is displaying symptoms of, or has, COVID-19, the position is unclear. Such individuals will be entitled to SSP; however, this is not necessarily enough to bring them within the case law on rescheduling holiday, which is where employees are incapable of work due to ill-health.
Terms & Conditions
If a new recruit has accepted an offer of employment an employer will need to give notice in order to terminate the contract. Notice can be given before the new recruit starts employment. Whether an employer will need to pay any salary will depend on the agreed start date. If the notice period that an employer is required to give takes them beyond what would have been the start date, salary will need to be paid from the start date to the end of the notice period.
Where there is a binding contract, changing the start date will be a variation of terms. Therefore, the change will need to be agreed. If the new recruit does not agree an employer can give notice under the contract and look to re-engage by issuing a new contract with the amended date.
Consideration will need to be given where the start date is being varied or the job offer is because of a new recruit’s sickness, this might give rise to potential discrimination liability, if the new recruit has a disability which the employer is aware of.
Yes, if the bonus is discretionary.
Where the bonus is contractual, this would depend on the terms of the scheme. The terms will dictate whether the bonus can be deferred, regardless of the reasons for the proposed deferral.
If the employer is contractually bound to pay a bonus it could seek an employee’s consent to waive a bonus. In these current circumstances, an employee may be prepared to agree, if the alternative is potential redundancies.
Policies and procedures
It may be necessary to relax the requirements for evidence of illness. The government has launched online “isolation notes”, which can be used as evidence of the need to self-isolate for 14-days, where someone has symptoms of Coronavirus.
Where the employer pays company sick pay it should be flexible as to what evidence of sickness absence is required. Requiring evidence of either a fit note or isolation note could be indirectly discriminatory. Those who are aged over 60, have underlying medical issues or are pregnant may wish to self-isolate.
Consideration should be given as to any period of absence caused by COVID-19 will be disregarded for the purposes of the absence threshold at which employees will be given warnings. The employer’s position on this should be communicated to staff.
If an employer does not wish to disregard such absence, it should bear in mind that employees with disabilities, e.g. respiratory or auto-immune conditions, are likely to suffer more severe symptoms and take longer to recover. To avoid any potential disability discrimination issue, an employer would be advised to consider disregarding absence due to COVID-19 for such employees.
Whilst the ACAS Code does not deal with holding meetings remotely, it does emphasise that issues should be dealt with promptly. It would be better to deal with the issues remotely rather than delay. An employer will need to consider whether it can carry out a thorough investigation remotely and how an employee’s companion can take part.
If an employee insists on a disciplinary being postponed because of the Coronavirus, an employer may need to consider this, dependent on the seriousness of the disciplinary issues and whether a fair hearing can be fairly carried out remotely.
If the business is closed employers should still consult. An employer should consider whether to do so by email, skype, telephone or even by post.
Where collective consultation applies (i.e. 20 or more redundancies are proposed at one establishment within 90 days), it may be possible for an employer to rely on the “special circumstances” defence. Impending insolvency on its own is not sufficient for the defence to apply. However, if such a defence can be relied on an employer still needs to take reasonable steps to comply.
The Foreign and Commonwealth Office (FCO) is advising against all but essential travel across the world. There are also border restrictions in place across the world.
Employers have a duty of care to all their employees. It would be a breach of this duty if they insist on employees travelling overseas at this time. An employee may have a personal injury claim if they become unwell after having travelled to an infected country, irrespective of whether they have willingly done so. In addition, it is likely to be a breach of trust and confidence entitling an employee to resign and claim constructive dismissal.
Notwithstanding the above, employers will need to check their employer’s liability insurance to see whether they are still covered, and investigate whether other forms of insurance (e.g. travel insurance, private medical insurance, death in benefit cover) would still provide cover where the employee has travelled against FCO advice.
An employee in circumstances of serious and imminent danger is entitled to remove themselves from that danger and cannot be subjected to any detriment on that ground.
Any travel, whether overseas or domestically, should be genuinely essential.
This might be less of an issue now that the Foreign and Commonwealth Office has advised against all but essential travel and has issued a COVID-19 Exceptional Travel Advisory Notice, which advises anyone travelling abroad to return to the UK. Employers can encourage employees to follow this advice but cannot insist on it.
Instructing employees not to travel could be regarded as unreasonable given that it dictates what an employee can do with their leisure time, rather than how they do their job. Further, preventing employees from travelling may indirectly indiscriminate against certain employees, e.g. those nationals from the relevant country, because a ban could disproportionately affect them. An employer can defend an indirect discrimination claim if they can show that the action is a proportionate means of achieving a legitimate aim. Trying to protect the health & safety of employees is a legitimate aim, although could be disproportionate. The aim could be achieved by requiring staff to report any travel plans and require them to self-isolate for 14-days on their return.
If an employer decides to issue instructions on travel it might be able to withhold any contractual sick pay during a period of self-isolation, which will be dependent to some extent on the terms of the employment contract. It will also need to consider whether this is indirectly discriminatory.
Similar considerations arise where an employer attempts to revoke the employee’s annual leave to prevent them from travelling (see question 19).
Disciplining an employee who refuses to cancel travel plans is questionable given that it is unlikely that it is reasonable to restrict an employee’s leisure activities.
This would be sensible.
The government announced on 23 March 2020 that everyone should stay at home for at least three weeks. One of the exceptions to this is where an employee needs to travel to work because their role cannot be carried out a home.
If it is not possible to avoid public transport, employers might want to consider adjusting work times so that employees can avoid using public transport at the busiest times.
Health & Safety
Current government guidance on limiting the spread of COVID-19 in the workplace is currently limited to advice on frequent handwashing. It suggests the providing facemasks but does not go as far as requiring them to be worn.
Given the guidance it is unlikely that an employer can enforce the wearing of these, unless there are particular circumstances to support this requirement.
As to not going out to lunch, this may not be a reasonable instruction. Employers will need to consider access to food (if employees usually go out to buy their lunch), whether the hours of work and commuting time make it necessary for employees to go out shopping or to run errands, and the importance of taking a break away from work.
Not without consent.
Obtaining health information about an individual is special category personal data and an employer can only process such data on certain grounds under the Data Protection Act 2018. An employer can process such data if they obtain explicit consent. A generic form of consent contained in an employment contract is unlikely to be sufficient for data protection purposes.
It would be reasonable to ask visitors to inform you in order to comply with your health and safety obligations. It would also be reasonable to ask visitors not to attend your premises if they have been potentially exposed the virus and offer for meetings to be postponed or held via video conferencing or over the telephone.
The identity of the individual should not be disclosed, unless the employee specifically consents to this, as information about an employee’s health is “special category personal data” under the Data Protection Act 2018, which means it can only be processed by the employer in defined and restricted purposes.
An employer should simply advise that an employee in the workplace has been infected and that appropriate precautions should be taken.