Leading employment law solicitor David Brown and owner of Planet Employment Law addresses the key issues surrounding COVID – 19 with best practice tips for employers.
What do we do if we have an employee returning having travelled to an affected area overseas?
Ideally look to contact the employee in advance of them returning to work so that they do not come into the workplace. Advise the employee to self-isolate for 14 days and to call NHS 111 for further guidance.
Advise the Employee to seek an emailed written notice of self-isolation from NHS 111 or their GP and to provide a copy to you. That way you can pay them Statutory Sick Pay (SSP) (currently £94.25 for qualifying employees) from day 1 of their absence. (This was recently announced by the Prime Minister as being introduced rather than the usual initial 3 days without SSP)
What if an employee is travelling back from anywhere else in the world, or has done in the last 14 days?
The current guidance is that the employee can return to work, or continue to remain at work unless they have been informed that they have been in contact with somebody with COVID19.
In the event, they have been in touch with somebody with COVID-19 they should follow the guidance in (1) above.
You should keep up-to-date daily with Government guidance on the affected areas.
We have employees looking to travel abroad to affected areas, what should we do and can we stop them from travelling?
It will be difficult to look to ban an employee from travelling abroad to an affected area at present as the Government guidance is that they would advise against travelling, not that people should not travel.
That said, if there was a specific business needs for the employee to be in work immediately upon their return, which would coincide with a period of self-isolation there could be grounds to seek to prevent an employee travelling (by formally cancelling their leave). This would need to be done on a case by case basis and with advice from the outset.
In general advice should be given to employees that if they are planning to travel to an affected area that the Government guidance as detailed at (1) above would apply and as such, upon their return they would need to self-isolate and move onto SSP for that period.
What about employees looking to travel abroad to non-affected areas?
Advise staff to keep up-to-date with Government information in respect of affected areas in the run up to them travelling, immediately before travelling, whilst away and upon their return. If, whilst they are away, or within 14 days of their return the destination they have been to appears on the affected list they will have to then follow the steps in (1) above in respect of self-isolation.
Can we ask staff where they are going?
Ordinarily, this would not be something for employers to do, however, in the current circumstances, it is likely to be deemed reasonable to make such a request.
Employers should avoid asking about individual-specific countries so as to ensure there is no risk of discrimination. Instead, it would be reasonable to ask either generally if anybody is planning to travel abroad to keep you updated with where they are going so that you can cross-check against the affected list. Alternatively, you can ask if anybody is travelling to an affected area in general.
It might be more sensible to ask the broader question about anybody travelling abroad so you can keep updated with the Government affected list.
With any request, you should ensure the logical and reasonable reasons for asking have been explained within the request.
What if staff feel they should self-isolate even if they haven’t been to an affected area?
This would be very much a case by case basis and you would need to seek clarification as to why they believe they should self-isolate in these circumstances. If they have not been told by NHS 111 or a GP to self-isolate, and have not travelled to an affected area then an explanation would need to be sought as to why they have taken such a decision.
Depending on the answer provided it could be that you as the employer decide against paying SSP or any pay. Advice at every stage of this step should be sought for each case.
What if an employee wants to cancel their annual leave?
We suggest you adopt a sensible approach to this and liaise with the employee. They may have cancelled their trip and decide to either reduce their leave days or cancel them altogether. If that suits the business then no problem. There might be a situation though where the leave year is coming to an end and there is the issue of whether the leave can or should be carried over. Again, this would be on a case by case basis and we recommend you seek advice in those circumstances.
Can we insist an employee goes into self-isolation?
Potentially you can do this, however, you would need reasonable grounds to insist on it. If it were the employee was ignoring the Government guidance having come back from an affected area then you can insist they remain off work. In circumstances where your reasons for them self-isolating are not in line with Government guidance in respect of either affected areas or coming into contact with somebody with COVID-19 then you will need to justify your decision.
What if an employee comes into contact with somebody with COVID-19 through work?
The rules of self-isolation would obviously still apply, and whilst technically the rules on SSP would also still apply for that period of absence it may be more sensible to allow the employee to remain on full pay for the 14 day period of self-isolation given their exposure was through work.
This can be re-assessed if they have the virus and require further time off.
What if an employee’s child or dependant is sent home from school due to general school closure?
You should firstly advise the employee to seek advice from NHS 111 in respect of whether they should self-isolate depending on the facts of the reason for closing the specific school.
If it is the case the employee just needs time off as a result of the school closure and no risk to themselves then the normal rules in respect of time off for dependants should apply. Reasonable time off to allow the parent to make arrangements for their child should be allowed.
Given the unique circumstances of the COVID-19 situation, we would suggest a flexible approach to this time off, including seeing if the employee can work from home.
Can an employee work from home when self-isolating?
If the employee is merely self-isolating and has not been diagnosed with COVID-19 then this is possible.
Where the employee has a diagnosis then the normal sick rules of the business would apply.
In circumstances of self-isolation and the employee is able to work from home then you should look to assist with that so as to avoid the employee going onto SSP rate.
It might be that you make arrangements that they work from home certain days that they get paid full pay for the specific day but that there isn’t sufficient work for the full 14 day self-isolation period. If that is the case the non-working days would be at SSP rate.
It would be important to try and outline the precise nature of the arrangement by email as soon as possible and seek agreement from the employee.
Where some employees can work from home and others can’t tensions may arise in respect of pay and consideration needs to be given to this.
Where possible we would advise to try and help staff as much as possible maintain working and their income during any period of self-isolation.
Can we insist staff in the office work overtime to provide appropriate levels of cover where people are not in work due to self-isolation?
This will very much depend on the terms of your contract of employment both in respect of asking people to work overtime and whether you pay them overtime.
Most contracts should have a clause confirming that from time to time we may ask you to work additional hours without pay. If you have this then it will cover you to get people to work additional hours. It would then be a matter for you whether you pay for the additional hours.
Other contracts may have specific overtime clauses that should be followed.
Where contracts are silent on this issue you may be able to claim asking employees to work additional hours in these circumstances is a reasonable management instruction.
Areas of consideration here are in respect of the crossover to ensure no discrimination in respect of disability, sex, flexible working regulations and part-time worker regulations against the needs of the business and the potential for disciplinary action if employees refuse. Advice about implementation should be sought together with advice on any individual staff coming back with objections.
What about use of personal protective equipment (PPE)?
At all times the correct use of PPE should be insisted upon. However, it may be sensible to refresh all employee’s minds on the requirement of this.
If you want to introduce additional measures in respect of PPE taking account of the current circumstances then provided they are reasonable and in line with the needs of the business, this is fine. We would suggest you explain the reason for the introduction and confirm that the guidance should be followed to ensure everybody is aware of it.
SSP Refund
The Chancellor Rishi Sunak has this week confirmed that for businesses with under 250 staff, who have employees having to self isolate (on advice) then the Government will refund up to 14 days SSP rate to the employer.
Further Information
This article was written by David Brown. A highly experienced and leading employment and commercial law solicitor advising businesses and individuals.
David Brown:
davidbrown@planetemployment.co.uk
033 0002 0070