Out-Law Guide | 09 Nov 2020 | 2:15 pm | 10 min. read
View our reports on clients’ response to the pandemic, and Covid-19 advisory – health and safety issues with staff returning to work.
The outbreak of coronavirus 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.
For the latest information see our guide, 'Coronavirus job retention scheme: March 2021 extension – an employer need to know'.
The 'online isolation notes' service which provides employers with certification for coronavirus absences is 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.
As these employees may not be "sick" in terms of 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.
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.
Earlier in 2020, SSP was temporarily extended to cover people where:
In coronavirus cases, SSP is payable from the first day of absence without the need for waiting days. 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.
Guidance on 'shielding' of vulnerable people confirms that individuals who are shielding may well be brought into scope for SSP. Clinically extremely vulnerable staff in England who live in an area where local or national restrictions are in place, local or national, which include advice to ‘shield’, will be eligible for SSP.
Whether CSP will be payable is again a matter for the employer to consider when taking account of their policies.
See also the coronavirus job retention scheme. Furlough can be applied to those shielding providing they meet other eligibility criteria, and this is an option which may well be preferable for employers and employees within the scope of the furlough scheme.
This is likely to depend on:
Given the current 'lockdown' in the UK, most employers have taken steps to again facilitate home working, including encouraging employees to ensure that they have the correct desk 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.
If employers knowingly allow an individual who has been advised to self-isolate to attend their premises or come into contact with other employees, employers would be in breach of a specific legal prohibition. As employers must also bear in mind the duties that they owe to other employees under UK health and safety law, it is worth flagging that they may well also 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.
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.
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.
There were reports of an increase in racism and prejudice being shown towards those of Chinese or other Asian origins when 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, unless 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.
See our guide: Coronavirus: immigration implications for UK employers.
See our guide: Coronavirus: UK lay-off and short-time working provisions.
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:
Our interpretation differs from the ACAS guidance in a number of ways:
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.
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