With the coronavirus risk level in the UK being raised to moderate, we have set out some of the issues employers may be faced with and the steps they may want to consider now to prepare for the risk of employees being exposed to, or contracting, the virus.
What is the process if an employee contracts the virus?
If someone contracts the virus then they should be treated in line with the usual policies and procedures around sickness absence and pay. However, employers will need to adapt their processes in terms of the medical evidence as it is unlikely the employee will be able to get a sick note (as current guidance is for them to stay at home).
It is useful to have a clear policy on the steps an employee should take if they feel they may be displaying the symptoms so they know to inform the business immediately and not report to work.
What if your employee is not sick but the guidance has suggested they self-quarantine?
There is no type of statutory pay that would apply in this situation. However, employers will want to take steps to ensure the employee does not feel compelled to come into work and potentially spread the virus and ACAS has suggested that best practice would be to treat this period as sick leave or agree for the period to be taken as annual leave.
It is possible to agree with the employee that this is taken as unpaid leave but this runs the risk of them wanting to come in. If the employee wants to come into the office and the employer refuses, ACAS suggest that they should be entitled to full pay.
Practically, if it is feasible, the employer should consider reaching an agreement with the employee around flexible working such as home working.
Employers should ensure that all employees are treated consistently to avoid claims for discrimination. Further, in all cases, employers will need to weigh up any risks in their treatment of the individual with their general duty of care towards all of their employees.
Can an employer tell their employees not to come into the office?
Employers can tell staff not to come in if they consider there is a risk. Employers may decide to stipulate to employees that if they take known risks, that may impact pay and that, specifically, if the employer has made it clear they are not to travel and the employee elects to do so anyway, any isolation period may not be paid. However, employers seeking to do this should seek legal advice.
If employees are told not to come in because of factors outside of their control it is likely they will be entitled to their full pay in such circumstances.
There is an argument that, if there is no right to require an employee to stay at home in their contract of employment, requiring employees to remain at home breaches the implied duty to provide work but this is likely to be seen as a reasonable instruction given its temporary nature and the risk to health and safety. Further, for the majority it is unlikely that they would suffer any loss as a result if they are paid, as usual, throughout the period.
What if an employee says they do not wish to come into the office because they are fearful of catching it?
In this case, the employer should try to reach agreement with them. This may involve agreeing to a period of home working or agreeing that they may take the period as annual leave.
Employers do have a duty to protect the health and safety of their workforce and to make reasonable adjustments for disabled workers and so, if there is a risk in the workplace and those with particular vulnerabilities are requesting to stay at home, the employer will be under a duty to properly consider the risks here and make adjustments where these are reasonable.
If an employee refuses to come into work and no agreement has been reached with the employer then this could be treated as misconduct and the employer may decide to start a disciplinary process.
Can an employer impose a travel ban for business travel?
Yes, an employer may decide to temporally restrict business travel to risk areas. Employers have a duty of care to provide a safe working environment which will extend to international business trips. They may also find that their insurance advises against travel in such circumstances.
Many employers are likely to take the decision to cancel trips if governments and/or insurance companies advise against travel.
Can an employer impose a travel ban on employees personally?
Employers can impose travel bans in respect of personal travel but have to be mindful that this may indirectly discriminate against employees of a particular nationality.
For example, if an employer restricts travel to high risk areas such as China, then this could indirectly impact more employees of Chinese nationality. Alternatively, if an employer restricts all international travel this could indirectly impact more non-British employees.
An employer has a defence to such a claim if it can show it has a legitimate aim and acted proportionately. A travel ban to high risk areas may well be proportionate (although if employees returning from such trips are being required to take leave during the quarantine period when they return, a ban may not be considered proportionate to the risk). A wider ban on all international travel will be harder to justify.
Stay alert to discrimination
There are already reports of employees of Chinese nationality being subjected to detrimental treatment relating to the coronavirus and employers must make sure that its staff are adequately trained to be able to identify and deal with any such conduct.
Steps to take now
There are a few things employers can do now to prepare…
- Keep up to date on Government guidance on the virus which can be seen here
- Have clear policies on travel, what to do if an employee suspects they may be at risk, and home working and make sure management are aware, and trained, on the processes and procedures in this regard
- Check the emergency contact details you have for employees are still up to date
- Implement NHS advice on hygiene e.g. encouraging staff to wash their hands regularly and ensuring there are clean facilities to do so
- Carry out a risk assessment of the workplace – can you implement any further hygiene measures to help prevent spread? Can you implement home working for those who are at risk?
- Consider contingency planning for wider shut down – Think about how your organisation would deal with a temporary closure of the workplace. This is an extreme measure but some offices in London have already taken this approach. Consider whether your business could continue to operate away from the workplace and whether there are measures and facilities you would need to put in place to facilitate this. This may include providing company laptops and phones and redirecting office post/phone calls. You would also need to consider data protection issues, as home working will likely involve transferring personal data away from the workplace.
If you need any advice in this area please do not hesitate to get in touch with one of our employment team.