With thanks to Darren Sherbourne, Employment Solicitor at Sherbourne Solicitors – current advice regarding employer’s liability and obligations relating to issues arising as a result of the spread of Coronavirus.
First of all, we should put this in perspective. The concern around Coronavirus is based on its ability to be passed on from person to person before symptoms show, not the severity of the virus itself. Mortality is so far estimated to be lower than 1%.
NHS medical advice currently remains the same as for ‘normal’ seasonal flu and colds – sneezing or coughing into a tissue and washing hands often.
THE LEGAL QUESTIONS
In the event that this outbreak becomes widespread in the UK, the following issues may be worth considering.
1. Do we as employer have a duty of care to employees to protect them from this virus?
All employers have a duty of care, but it is to take such steps as are reasonable in all of the circumstances. Large employers may have disaster recovery protocols already set out which involve home working for those that do not need to be at work. Small employers may consider issuing advice to employees, such as about washing hands and avoid coughing into the air.
2. Can the government force employers to close?
In extreme circumstances the answer is Yes, but there is absolutely no suggestion that this is envisaged.
3. Can employers force staff to stay away?
Yes, but in many circumstances the employer would have to pay staff if it insisted they stay away from work when they are not ill.
4. If I have two absent staff, one who is very good, and one who is not very good, can I pay one discretionary sick pay and not the other?
You can, but it’s a very risky thing to do and is not recommended.
5. When do absent staff have to be paid?
The following scenarios normally result in the following obligations:
a) The employee follows government advice because symptoms are present and stays off work. This seems to us to be sick leave. The employer may want to relax the need for a doctor’s certificate for the two week duration but SSP would be payable, and any contractual sick pay.
b) The employee stays off work because they have travelled to Italy (for example) in the last week, but is not showing symptoms. The employer would be free to choose to pay sick pay, but it’s not really sick leave so there is no obligation. As government guidance stands, the employer could insist on the employee attending work, but we cannot see why an employer would want to do that.
c) The employer sends an employee home when they are showing no symptoms, because they have travelled to an affected area, then full pay must be paid.
d) The employer sends an employee home who is showing symptoms, and who has travelled to an affected area recently, then this would be sick leave and should be treated accordingly.
e) The employer is unable to provide work to employees because parts have not arrived from China (for example), then this would be a situation where, if the employer had a “Lay off” clause in their contract, they could temporarily send the staff home. If there is no “Lay off” clause, then lay off might also be achieved by agreement with staff, or by having a rolling period during which a small number of staff must take some of their annual holiday. 20% of the workforce for a week at a time achieves a 20% reduction in the workforce for 5 weeks. It could also be a redundancy situation.
f) There is a lack of work due to the public or customers staying at home. It’s the same as (e) above.
g) You have an employee who is unable to return from holiday due to quarantine. This is strictly speaking the employee’s problem, and the employer is not under an obligation to pay for the period of absence.
h) An employee cannot attend work due to childcare as a nursery or school has closed. Again this is the employee’s problem and not the employers. There is an obligation to allow a short period for parents or carers to find alternative care arrangements, but this is unpaid. Note however that continued absence for this reason might in normal circumstances justify dismissal, if a widespread outbreak occurs we suspect the tribunals would be hard on employers who chose to dismiss employees in these circumstances.
I. Provide hand sanitiser and remind staff of the importance of hygiene.
II. Consider telling mildly symptomatic staff to stay at home. This is a double edged sword for employers and should be considered carefully. Many clients tell us that if they give such advice, they have staff who may see it as an opportunity for holiday. This should be balanced with the risks to health in a widespread outbreak of staff struggling into work when unwell. If you have 100 staff, statistically, one may die if all contract the virus.
III. Consider disaster recovery measures, such as providing staff with the ability to work from home if appropriate.
IV. Consider risk assessing staff, particularly those with pre-existing medical conditions such as chronic asthma or heart disease for example.
V. Consider increasing the frequency of work place cleaning.
· The UK is not yet in the grip of an epidemic and may not ever be so.
· The vast majority of those infected recover fully.
· Employers should remember the message they give to staff as well as what they can avoid paying to those who are absent
· Staff should be treated consistently.
· Employers should remember that this may become an opportunity to show staff what a good employer you are.
If you would like further legal advice you can contact Darren on 01242 250039 or for advice on how this might affect recruitment contact Tricia Hay on 01453 755330