By Melanie Tether and Nadia Motraghi, Counsel, Old Square Chambers.
The World Health Organisation (WHO) has declared COVID-19 a Public Health Emergency of International Concern. On 28.02.20 the WHO raised its global risk assessment of COVID-19 from high to very high. The UK Chief Medical Officers have raised the risk in the UK from low to moderate.
If the disease continues to spread, significant disruption to normal working patterns can be expected and a number of novel situations may arise. We deal with some of the most frequently asked questions in a question and answer format below.
In short, in deciding how to respond to COVID-19, employers should have regard to:
In this article, the term “employees” refers to employees and to workers who may not be employed under a contract of employment.
Public Health England (PHE) strategy and guidance
PHE’s strategy to contain the spread of COVID-19 is twofold, firstly self-isolation for particular groups of people and secondly, the provision of hygiene guidance.
On 25.02.20 PHE published guidance on COVID-19 for employers and businesses.
Self-isolation
Self isolation requires the individual to remain at home for a period of 14 days and to limit their contact with others.
In some cases, employees may be able to work from home while in self-isolation. However, in many cases, if an employee is unable to attend their place of work, they will be unable to work, as in the case of those working in frontline services in the care sector, healthcare, cleaning, hospitality, catering and the emergency services.
Who should self-isolate?
As of 02.03.2020, Public Health England (PHE) has advised self-isolation for the following groups of people:
Self-isolation: should employees be required to comply with PHE guidance?
As of 02.03.20 PHE guidance on self-isolation is advisory rather than mandatory. However, in view of their legal obligations to protect the health of their workforce, employers would be well advised to introduce rules, or issue instructions, making it clear that that any employee falling within one of the groups advised by PHE to self-isolate should refrain from attending work.
If the contract of employment includes a garden leave clause, this may provide the contractual basis for an instruction to stay at home. In other cases, the employer may have no express contractual power to require an employee to refrain from attending work. But in the highly unusual circumstances of the outbreak of COVID-19 the implied duty of trust and confidence is likely to be regarded as giving an employer the right to issue an instruction to that effect.
An employee who refuses to comply with a reasonable instruction to remain at home would breach their own duty of trust and confidence and their personal duty under HASAW to take care of their own health and safety and the health and safety of others who may be affected by their actions at work.
Are employees entitled to be paid during a period of self-isolation?
When addressing the House of Commons on 26.02.20, the Secretary of State for Health Matt Hancock MP said “Self-isolation on medical advice is considered sickness for employment purposes”, adding “That is a very important message for employers and those who can go home and self-isolate as if they were sick, because it is for medical reasons”.
The view expressed by the Secretary of State will clearly be correct in the case of an employee who self-isolates because they have developed the symptoms of COVID-19. An employee who is in fact sick will be entitled to whatever sick pay is payable under their contract of employment (although this will not always result in the maintenance of normal pay during the full period of absence).
On the other hand, it is by no means clear that an asymptomatic employee who self-isolates will have a contractual entitlement to receive sick pay. This will depend on how the employee’s contract of employment defines the right to sick pay. Under many contracts of employment, an employee has no contractual right to sick pay unless they are incapable of work. Statutory sick pay is also payable only in respect of a period of ‘incapacity for work’.
Advice issued by ACAS on 19.02.20 on handling coronavirus at work adopts a different view from that expressed by Matt Hancock on whether an asymptomatic employee is entitled to sick pay during self-isolation. In its guidance ACAS says “There’s no legal (‘statutory’) right to pay if someone is not sick but cannot work because … they have been told by a medical expert to self-isolate …”. ACAS goes on to recommend that it is “good practice” for the employer to treat self-isolation as sick leave because there will otherwise be a risk that employees will come to work in order to get paid, in which case they could spread the virus if they have it.
It is suggested that where an employer instructs an employee who would otherwise be capable of work to self-isolate for a specified period, the employee will be entitled to receive their normal pay for the duration of the self-isolation, because their absence from work then becomes a form of suspension. But the same analysis would not necessarily apply in the case of an employee who self-isolates voluntarily, without being required by their employer to do so.
Given the strong public interest in ensuring that employees adhere to the guidance issued by PHE, it seems unsatisfactory that an employee’s right to be paid during a recommended period of self-isolation should potentially depend on whether their employer instructs them to self-isolate or chooses to adopt “good practice” by paying contractual sick pay. The Government could address this problem by introducing a statutory right to normal pay during any period of self-isolation recommended by PHE, perhaps by extending the right to pay during medical suspension conferred by s. 64 Employment Rights Act 1996.
What if an employee wants to take time off because their child’s school has closed due to COVID-19 or their child has to self-isolate?
Some schools have already closed due to COVID-19. In such circumstances, employees are able to take that time off to help their dependants, as identified in s. 57A Employment Rights Act 1996, which includes where there has been an unexpected disruption to the arrangements to care for the dependant, an incident at school, or where the dependant is ill.
An employee must inform their employer as soon as reasonably practicable of the reason for their absence and where they are able to inform their employer in advance of their absence how long they expect to be absent. Typically this type of leave is intended for short periods.
However there is no statutory right to be paid during dependant’s leave. The employee’s contract of employment or employee handbook may provide pay in such circumstances.
What if an employee does not want to go to work because they are anxious about COVID-19?
If the employee does not wish to attend work and is not in one of the groups PHE says should self-isolate, the employer must listen to the concerns of the employee.
The WHO has advised that people over the age of 60, or those who have an underlying condition such as cardiovascular disease, a respiratory condition or diabetes, have a higher risk of developing severe COVID-19 and should therefore try to avoid crowded areas or places where they might interact with people who are sick.
Employers should especially consider the needs of any employees who may have particular cause for concern about the risk of infection, such as pregnant women, those with compromised immunity and employees in the groups identified by the WHO as at higher risk of developing severe COVID-19. The employer should carefully consider their concerns in the light of its obligations to take reasonable steps to provide a safe working environment.
If an employee has a disability within the meaning of the Equality Act 2010 which results in a compromised immune system or a higher risk of developing severe COVID-19, the employer may have a legal duty under that Act to make reasonable adjustments to the employee’s working arrangements.
ACAS has recommended that where there are genuine concerns the employer must try to resoIve these to protect the health and safety of their staff, by, for example, offering flexible working. Alternatives which might be agreed are taking annual leave or taking a period of unpaid leave.
It is not hard to imagine situations where an employee says they are unwilling to attend work because one or more work colleagues are not following hygiene rules and they fear they are placed at increased risk. In such situations, the employer will need to consider the employee’s concerns very carefully before deciding how to respond.
In addition, in some cases the anxiety caused by the outbreak of COVID-19 will itself render the employee unfit to work and entitled to sick pay.
What if an employee does not follow COVID-19 hygiene rules?
Employees are required to follow reasonable management instructions. If an employer requires employees to follow Public Health England’s guidance (e.g. coughing into the crook of an arm) and has informed employees of the same but the employee does not comply, the employer will be entitled to take disciplinary action.
What if an employer does not enforce COVID-19 hygiene rules or permits an employee who should be self-isolating to attend work?
In current circumstances, employers would be well advised to introduce new safety rules at work consistent with any guidance issued by PHE that affects the workplace or employment relationships.
In light of the employer’s statutory and common law obligations to protect the health and safety of its workforce, as well as the obligation to maintain mutual trust and confidence, an employee may resign and claim constructive dismissal where they consider their employer has not taken reasonable steps to ensure their safety, by, for example, failing to introduce or monitor appropriate hygiene standards in the workplace or failing to prevent a person who should be self-isolating to attend work.
Attendance management policies
Many employers operate attendance management policies which are designed to reduce long and short-term absence by providing that levels of absence which exceed specified thresholds will trigger management action.
Such policies may in practice discourage employees who have developed, or are at risk of developing, COVID-19 from staying away from work until they have ceased to pose any risk to their fellow employees or others they may come in contact with. Employers with an attendance management policy should therefore consider whether to specify that a period of absence caused by COVID-19 infection or self-isolation in accordance with PHE guidance will not be taken into account in deciding whether the threshold(s) at which management action is taken have been reached.
The case for making modifications to an attendance management policy will be particularly strong in the case of a disabled employee who has a compromised immune system and/or is at higher risk of contracting severe COVID-19.
How does COVID-19 affect work-related travel and overseas assignments?
The WHO recommends that all organisations should assess the benefits and risks relating to upcoming travel plans in the light of the latest information on areas where COVID-19 is spreading. It advises that:
Where an employee has been, or is due to be, relocated or seconded to a country/area where there is a higher risk of COVID-19 infection, the employer will need to consider whether the relevant assignment is compatible with its duty to safeguard the employee’s health and, if satisfied that the employee can reasonably be required to work in the country/area in question, whether steps should nonetheless be taken to reduce the employee’s risk of contracting the disease.
Can an employer place restrictions on personal travel?
Some employers have introduced rules or policies which prohibit employees from undertaking personal travel to countries or areas where the risk of COVID-19 infection is higher. Few contracts of employment will include an express term giving the employer power to restrict an employee’s personal travel plans. However, where they can be justified by the employer’s duty to protect the health and safety of its wider workforce or those the workforce come in contact with, such restrictions are likely to be regarded as reasonable.
A restriction on personal travel may be more difficult to justify if it includes countries or areas which are not the subject of a travel advisory issued by the Foreign and Commonwealth Office (FCO). But employers who have particularly powerful reasons to ensure that their employees do not become infected by COVID-19 e.g. employers in the health or education sectors, may be able to demonstrate that it is reasonable for them to impose travel restrictions which are more stringent than those advised by FCO.
Moreover, some national governments have been more cautious than others when issuing travel advice e.g. the US State Department has advised against all travel to Lombardy and Veneto in Italy whereas the FCO has advised against all but essential travel to 10 small towns in those regions. Some employers, especially those with overseas parent companies, may have valid business reasons for imposing travel restrictions which are in line with the travel advice issued by governments outside the UK.
Any employer deciding to impose restrictions on personal travel must be careful to ensure that they are not directly discriminatory on grounds of race or nationality and that any indirect discrimination on those grounds can be justified.
Are employers liable for discrimination and harassment by employees?
Since COVID-19 reached the UK, there have been reports of targeting of people of Chinese origin. No racial group should be singled out for less favourable treatment.
Should such treatment occur at work, employers can be liable for harassment or discrimination by their employees towards other employees, unless they have taken reasonable steps to prevent such conduct. Reasonable steps, typically including having equalities policies in place, appropriate training given on those policies and that inappropriate behaviour is tackled.
For professionally regulated persons, including for example solicitors and barristers, doctors, dentists and other healthcare professionals, accountants and those working in the financial services sector, involvement in such discrimination or harassment or failure to deal with these issues appropriately may have implications for their professional registration or fitness and propriety, as applicable.
This article does not constitute legal advice. Legal advice should be sought to address specific circumstances. Information on COVID-19 is changing on a daily basis and the first port of call for public health guidance should be Public Health England.
For legal advice from Melanie Tether, Nadia Motraghi or any of the barristers at Old Square Chambers or for media enquiries please call the Old Square clerks team on 0207 269 0300.
