Aside from the impact on contracts, employers must ensure staff are protected as far as practicably possible while dealing with the clinical impact of coronavirus on the workforce.
Andrew Rayment, an employment partner at law firm Walker Morris, reminds that “employers have a duty to take steps to ensure the health and safety of their workforce, and to ensure a safe system of working; they must take the threats posed by coronavirus seriously”.
This can be done, for example, through information, the provision of cleaning products, protective products, social distancing and homeworking where a role permits it.
For Rayment, it’s important that employers remain consistent and fair – “employers must not single anyone out or treat an employee differently because of a protected characteristic such as race or ethnicity”. He’s clearly alluding to the origin of the disease because from his perspective, it could amount to unlawful discrimination.
But what of staff who might be infected who then self-isolate? The answer is simple for Rayment: “If the employee can still work from home during a period of self-isolation, then they will be entitled to be paid because they are still working.” And if NHS 111 or a doctor advises someone to self-isolate, they should receive any Statutory Sick Pay (SSP) due to them. Contractual sick pay should ideally be paid too.
The government has said that for the moment, SSP is payable from day one of sickness. And for those not yet unwell but have been asked not to come to work, Rayment says they will be entitled to their usual pay. He also says that employers should be flexible with proof of illness – it may not be readily available.
It follows that there will be employees worried about exposure to the virus in the workplace. Here Rayment advises “handling such concerns very sensitively but firmly”. The more vulnerable (over 60 or with a health condition) can be helped with adjustments – homeworking or off-peak start and finish times. But as Rayment explains: “If no agreement can be reached and the employee insists on not coming to work, and they are well, there is no legal obligation to pay them.”
Of course, non-attendance could lead to disciplinary action. However, Rayment advises caution when dealing with pregnant or otherwise high-risk employees as “there is a risk of discrimination claims… and if there is a genuine health and safety risk posed by being required to attend work, then disciplinary action might lead to a constructive dismissal or detriment claim”.
Employers do need to remember that employees are entitled to reasonable time off work to help someone who depends on them – a child off school or a sick parent – in an unexpected event or emergency of which coronavirus is but one example.
But as Rayment says: “There is no statutory right to pay for this time off. The amount of time off an employee takes to look after someone must be reasonable for the situation.” Again, he suggests being sensible with paid time off, possibly followed by holiday.
But there is an elephant in the room – how workers cover sick colleagues. On this, Rayment defends requests from employers for those remaining to cover those off work, and he does so on the basis that “many contracts give employers an express right to vary duties and hours in line with the need to be reasonable under the circumstances; employees are also under an implied duty to obey lawful and reasonable instructions”.
His advice to employers is to consult affected employees before changing hours or duties to avoid the risk of employment claims. That said, coronavirus offers a powerful argument for changes on a short-term basis.
It’s true – there is much doom and gloom around, but sight shouldn’t be lost of the fact that the sky hasn’t fallen, the world hasn’t ended, and society will surely get through the coronavirus outbreak. But it’s going to take – and this is an understatement – some managing and time. Keep calm and try to carry on.
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