Make sure that you have up to date contact numbers and emergency contact details for all staff and that staff are clear on sickness and absence reporting procedures.
Employers have a duty to look after the health and safety of their employees. Introduce hand sanitisers and tissues around the workplace and remind staff of good hand hygiene and the ‘catch it, bin it’ rule of thumb for ensuring coughs and sneezes are disposed of in tissues, not into hands which then touch the communal door handle, kettle, light switch and so on.
Ensure staff have the ability to be able to work from home at short notice if necessary in case it becomes necessary to shut the office. This includes ensuring remote access to computer systems are available and that staff, as far as possible, have laptops and mobiles or other paperwork that can be performed remotely.
If you have staff who are concerned about attending work, provide them with reassurance and consider whether it is feasible or you are willing for them to work from home or whether you are willing to offer unpaid leave or holiday. If the staff member refuses to attend work for no good reason then this would potentially be absence without authorisation which is a disciplinary issue. However, each case would need to be assessed on its own merits.
If you have staff who are required to travel as part of their job, including to areas that have been affected, consider whether such travel is necessary and reduce travel and risk wherever possible. Could the meeting be carried out via skype? Placing someone in a position where their health could be adversely affected could amount to a breach of contract with the risk of a constructive dismissal claim so investigate alternatives. This is particularly the case where the individual concerned is vulnerable eg pregnant workers or those with a medical condition such as diabetes or respiratory problems.
Most employers require their employees to seek approval to their holiday before it is booked. If an employee wishes to travel to a high risk area it is always open to the employer to refuse the leave request. We recommend introducing a policy that requires employees to state when making a holiday request where they are intending on spending their leave in order that employers can manage the risk of the coronavirus being brought into the workplace. Employees should also be told that if their plans change they should let the employer know before returning to work.
A refusal to provide details of the countries that they will be visiting will most likely result in the holiday request being declined. Refusal to provide such information can amount to a failure to obey a reasonable and lawful instruction for which disciplinary action could be taken.
A failure to make a full declaration could also be seen to be a disciplinary issue but employers should explain to staff the reason for the request for such information so that they understand the basis for it and can make an informed decision. They should also be warned that failure to provide accurate information (and keep it updated) will result in disciplinary action being taken.
It is then up to the employer whether they ask the employee to obtain medical guidance on whether they are required to self-isolate or whether they insist themselves that the employee self-isolates for a period after their return from holiday. The suggested period appears to be 14 days given the incubation period of the virus.
Whilst the ACAS guidance on the coronavirus indicates that there is no legal obligation for an employer to pay someone who is not sick but who cannot work because they have been told by a medical expert to self-isolate, if you do not pay the employee there is a distinct danger that they will fail to mention the advice provided, will be more selective with the information they provide you on where they are visiting or downplay any risk in order to ensure they can attend work and be paid, rather than be forced to remain at home, unpaid and not be able to pay their mortgage. Penalising staff financially is more likely to result in behaviours being driven underground and make managing the risk to the business almost impossible.
It is also possible for employers to provide notice to their employees as to when they have to take their leave. For example, if an employee indicates they intend to visit a high risk area, the employer could insist that they take the 14 days’ self-isolation period immediately after the holiday as further leave, in order to reduce the amount the employer is having to pay. The downside is that many employees will not wish to take their leave in this way, again driving adverse behaviours to avoid being penalised in such a manner and having an employee off for 3 – 4 weeks in one go is disruptive to the business.
This is a moveable feast. An employee could quite legitimately book a holiday in a low risk area, only to find that the area becomes high risk before they leave or even whilst on holiday. Individuals on stop overs at airports with a few hours wait between flights may also find themselves in a high risk country, even though they are not stopping there and not even setting foot outside the airport. Rather than seeing this as a financial exercise, the main issue of concern for employers should be reducing risk and exposure of staff to the virus. Open dialogue with encouragement to reduce risk where possible should be prioritised.
The staff member would be on sick leave and entitled to be paid in the normal manner. They may not be able to obtain a doctor’s medical certificate after 7 days due to GPs surgeries advising patients not to attend surgeries if they have such symptoms. Neither are they likely to be able to send the sick note in to work given the risk of spreading the virus if they left home. Again, ensuring clear lines of communication are crucial and reassuring the individual they need to be fully recuperated before returning to work will only have the intended effect if they are recompensed whilst off, or they may be pushed into returning too early, resulting in greater problems being faced by the business.
The law allows employees to take a reasonable amount of time off work to take necessary action to deal with situations involving their dependents. Such leave is generally unpaid. However, many employers would no doubt be concerned if the employee then turned up for work having been in close proximity to someone discovered to have the coronavirus. In such cases, the employer would be requiring that the employee remain at home and as such should pay full pay.
Whilst an employer can cancel an employee’s holiday with sufficient notice, the employee will have incurred costs which they may not be able to claim back from their insurance company. It may therefore result in the employee claiming such costs from the employer. It would be better to explain your concerns to the employee and let them make the decision as to whether they go on the holiday or not. However, you are entitled to manage risks to your business and imposing an isolation period would assist in that regard.
If they have recently travelled, ask to see a copy of their booking form detailing the location of travel. Ask that they scan it in, don’t require them to drop it off – just in case! If there is concern, they may be tested by medical experts to see if they test positive for the virus. If this is the case you can ask that they let you have confirmation of that test when they are able to. Failure to subsequently provide it may mean that their absence was dishonest and disciplinary action can be taken.
However, bear in mind that as the virus continues to spread in the UK, medical practitioners may not be able to screen everyone and this may need to be factored in before accusing an employee of dishonesty. The current advice is for anyone who suspects that they may have the virus to telephone NHS 111 and avoid presenting at a healthcare setting unless it is an emergency.
Whilst NHS 111 will undertake a clinical assessment and then offer advice which could include further testing and treatment, if services become overstretched, follow up may not be possible. In this eventuality, employees could feign symptoms in order to be told to self-isolate with pay. We consider issues like this will be few and far between. However employers should consider what additional information they can obtain from employees to verify that their contact with NHS 111 was genuine. Employers may want to produce a form akin to a self-certification form, which requires employees to provide details of their contact with NHS 111 and the advice received, which in turn is signed as being accurate in order to dissuade employees to be untruthful.
If you would like any further information, please contact Angela Gorton on 0113 280 2026 or firstname.lastname@example.org or another member of the employment law team.
If you are worried your business has made mistakes in the uptake and administration of the coronavirus job retention scheme (CJRS) or are facing the prospect of a Furlough Fraud investigation by HMRC, our team of Furlough Fraud Investigation Specialists can offer you tailored legal advice and specialist representation.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.