Coronavirus: advice for UK HR professionals

Out-Law Guide | 11 May 2020 | 1:26 pm | 10 min. read

As the UK and devolved governments move to the 'delay' phase of their coronavirus action plan, employers must take action to protect their workforces whether UK-based or working cross-border.

The outbreak of coronavirus, officially Covid-19, raises points of employment law, immigration, health and safety and data protection law for UK employers. Specific legal advice should be sought where necessary, as the situation is changing daily.

The UK's Foreign and Commonwealth Office (FCO) is currently advising against all and all but essential travel to many countries, cities and regions. Those planning international travel must check FCO travel advice for all countries they are planning to visit or transit through, and should sign up for email updates for those countries in case advice suddenly changes.

Sammon Anne_26 Feb 2020

Dr Anne Sammon

Partner

Employers have had to think about what steps they can take to facilitate home working, including encouraging employees to ensure that they have the correct set-up at home to be able to work there if required to do so.

The UK and devolved governments have moved from the 'contain' to the 'delay' phase of their coronavirus action planning. Individuals must now stay at home for seven days if they have either a high temperature or a new, continuous cough, following government guidance for self isolation.

Employers can access the latest government information and advice online.

Coronavirus job retention scheme

The UK government has announced measures designed to help employers retain staff during the pandemic even if they are forced to temporarily shut their businesses. This is a very significant development which will impact on decision-making for employers.

See our guide: Coronavirus job retention scheme: what employers should do.

Key workers

A list of 'key workers', for whose children schools will remain open, is also now available. Employers may reasonably expect their employees to make use of these facilities - where the employee's partner is a key worker for example - without going into invasive investigations which might breach anyone's data protection rights. They might, for example, issue an FAQ that employees who do have the option to use key worker childcare should utilise that.

The position is different in Scotland, where the definition of 'key workers' has been delegated to local authorities.

Evidence of self-isolation

On 20 March, the government announced a new 'online isolation notes' service which provides employers with certification for coronavirus absences. This looks really helpful and straightforward, and is clearly aimed at alleviating the pressure on the NHS.

The government said: "Isolation notes will provide employees with evidence for their employers that they have been advised to self-isolate due to coronavirus, either because they have symptoms or they live with someone who has symptoms, and so cannot work.

As isolation notes can be obtained without contacting a doctor, this will reduce the pressure on GP surgeries and prevent people needing to leave their homes".

Employees can self-certify for their first seven days off work, and are not required to provide any evidence to their employer. However, after this period, employers may ask for evidence of sickness absence.

Isolation notes can be accessed through the NHS website and NHS 111 online. Individuals will be asked to answer a few questions, after which an isolation note will be emailed to them. The service can also be used to generate an isolation note on behalf of someone else, while those without an email address can have the note sent to a trusted family member or friend, or directly to the employer.

We need to look at temporary reductions in staff numbers. Can we lay people off work?

See our guide: Coronavirus: UK lay-off and short-time working provisions.

Must asymptomatic employees who are required to self-isolate be paid? Can they be placed on sick leave, or required to use their holiday entitlement?

Employers are unlikely to be able to require employees to take holiday for any period of self-isolation where these periods have been designated as eligible for statutory sick pay (SSP). As these employees may not be "sick" in terms of company sick pay (CSP), employees may not be covered by sick leave provisions and employers will have to read into their contracts and policies and consider their position as to any discretion to be exercised.

Assuming the employer has instructed employees not covered by SSP provisions to remain away from their place of work, employees are likely to be on a period of leave which is likely to need to be paid at full pay, unless an employer has a contractual right to place the employee on a period of unpaid leave, which is unlikely. See also the coronavirus job retention scheme, which will apply to employees temporarily laid-off ('furloughed') although not on sick leave.

Where an employee voluntarily remains away from the workplace due to self-isolation without discussing this with the employer, there may be more scope for considering such leave to be unpaid, although this will depend on the circumstances.

Will employees be entitled to sick pay?

At the UK Budget on 11 March, chancellor Rishi Sunak announced that SSP will be temporarily extended to cover:

  • individuals who are unable to work because they have been advised to self-isolate; and
  • people caring for those within the same household who display coronavirus symptoms and have been told to self isolate.

The latter point would make provision for, for example, carers of children or elderly relatives who live with the absent employee.

Regulations have since confirmed these changes (2-page / 29KB PDF), so as of 13 March employees who self-isolate in accordance with guidance from Public Health England, NHS National Services Scotland or Public Health Wales will be eligible to receive SSP, which is currently paid at a rate of £94.25 per week.

Government guidance from 12 March is that those self-isolating with minor symptoms should not call their GP or NHS 111, but employees can use the online evidence of self-isolation. Note that it is unlawful for employers to require medical certification for the first week of absence.

Due to another change announced to the SSP rules, SSP will be payable from the first day of absence without the need for waiting days. Draft legislation confirms 13 March as the effective date for this change. This change appears to be temporary and will only apply during the coronavirus epidemic, after which sick pay may revert to the previous position, which is that it is only paid from the fourth day of absence.

Many CSP policies will include a requirement for the employee to obtain a 'fit note' from a doctor before CSP is payable. An employee who is following official guidance to self-isolate and who has flu-like symptoms may have difficulty obtaining a fit note, particularly given the anticipated pressure on health services. Employers should therefore consider making exceptions to their usual sick pay policies as to the evidence required. This is in line with updated government guidance that employers should be more flexible in relation to the evidence they require.

We would advise employers issuing communications about pay to build in flexibility to adapt their position if required. The duration and extent of the outbreak is likely to be considerable, and employers may have to shift their position.

Guidance on 'shielding' of vulnerable people published on 21 March confirms that vulnerable staff in England will be issued with a 'stay-at-home' letter by the health service. This will bring them into scope of SSP. Technical amendments to the SSP Regulations are awaited to bring this into effect. The position for vulnerable workers in Scotland has not yet been confirmed.

Can an employer expect an employee required to self-isolate following travel from a particular geographic area to work from home?

This is likely to depend on:

  • whether the employee is symptomatic – in which case, it is likely that they should be on sick leave and therefore not working; or
  • whether the employee is able to work from home.

Given the current 'lockdown' in the UK, most employers have taken steps to facilitate home working, including encouraging employees to ensure that they have the correct set-up at home to be able to work there if required to do so.

In similar situations in the past, some organisations provided guidance suggesting that where employees would have been able to work from home but for their failure to take certain actions - for example, requesting particular log-ins - those employees would be subject to disciplinary proceedings.

Can an employer take steps to prevent an employee who has refused to self-isolate from accessing its premises or coming into contact with other employees or clients?

Employers must bear in mind the duties that they owe to other employees under UK health and safety law. If they knowingly allow an individual who has been advised to self-isolate to attend their premises or come into contact with other employees, they may be in breach of those duties, particularly where any of those other employees are more vulnerable to infection - for example, pregnant employees, those with long-term health conditions.

Suspension may be an option where an individual who has been advised to self-isolate refuses to do so, but employers should consider whether they have a right to suspend in these circumstances. Where no express contractual right to do so exists, legal advice should be sought.

What can an employer communicate about an employee with coronavirus?

Under UK data protection law, personal data concerning health is 'special category data'. This means that employers need to ensure that any communication does not include any data about the individual who is absent. For example, while it would be fine to let employees know that there has been a confirmed coronavirus case within its workforce in London, it would not be appropriate to provide any details from which the individual might be identified.

Can employers require employees who have been to certain geographic regions to inform HR of this?

Employers that seek information from employees about travel need to be careful not to discriminate while doing so.

For example, an employer is likely to be able to justify a request for all employees to declare any travel from an area in respect of which the UK government advises an individual to self-isolate. However, enquiring about travel only to certain areas - for example, China - or seeking information only from certain sections of your employee population is likely to amount to discrimination or harassment.

Can employers be liable for discrimination and harassment by their employees?

There have been reports of an increase in racism and prejudice being shown towards those of Chinese or other Asian origins since the outbreak began. There is therefore an increased risk of such behaviour occurring in the workplace.

Employers will be liable for harassment or discrimination by their employees towards other employees, save where they have taken reasonable steps to prevent the conduct. Employers will be unable to rely simply on a policy that states that discrimination and harassment is not tolerated. Further steps, such as training and evidence of inappropriate behaviour being tackled, must also be taken for an employer to avoid liability.

Employers in the financial services sector must also be aware that any failure to deal with these issues appropriately may have implications for the fitness and propriety of the senior managers who are responsible for these areas of the business.

I have staff who are migrants or UK staff overseas. Are there any immigration law consequences I should be aware of?

See our guide: Coronavirus: immigration implications for UK employers.

Should we apply the new ACAS guidance on disciplinary and grievance proceedings during furlough?

ACAS has issued guidance on disciplinary and grievance procedures during the coronavirus pandemic. The guidance states that, provided it is done voluntarily and in accordance with current public health guidance, a furloughed employee can take part in a disciplinary or grievance investigation or hearing, including if they:

  • are under investigation in a disciplinary procedure;
  • have raised a grievance;
  • are chairing a disciplinary or grievance hearing;
  • are taking notes at a hearing or during an investigation interview;
  • are being interviewed as part of an investigation;
  • are a witness at a hearing; and
  • are an employee’s companion for a hearing.

Our interpretation differs from the new ACAS guidance in a number of ways:

  • Where an employee is facing a disciplinary allegation or raising a grievance, we tend to be of the view that these employees could be required to attend an investigation or hearing whilst on furlough. Arguably this is in the interests of justice rather than providing a service to the employer. ACAS’ proposal that the employee should be asked to agree that their involvement is on a voluntary basis seems cautious and could add an opportunity for dispute.
  • Chairing or taking notes at a hearing is likely to amount to ‘work’, so we do not consider a furloughed employee could undertake these activities. Whether a furloughed employee can be a witness in an investigation or hearing is something to be considered on a case-by-case basis. Again, providing witness evidence at a hearing is arguably in the interests of justice.
  • Finally, the position in relation to acting as an employee's companion remains ambiguous despite ACAS guidance. On balance, being an employee’s companion is likely to be considered a service to that colleague rather than the employer, so would not break furlough. It is also in keeping with the spirit of the HMRC employer furlough guidance which permits employees to act as union or non-union representatives, although this does not expressly cover companions.

However, in the absence of further clarification from HMRC, we simply do not have a satisfactory position that HMRC would not view these activities as work which breaks furlough. As such, a delay to a process may be the course of least risk to the business. That will depend on the business critical nature of the particular process. We consider the risk of departing from this ACAS guidance to be low as long as the ACAS Code of Practice on Disciplinary and Grievance Procedures is adhered to, including consideration of fairness in how remote hearings are conducted.