FAQs on Coronavirus
Can I send an employee home who insists they are well but are displaying Coronavirus symptoms?
There are two aspects at play here. Firstly, your duty to so far as is reasonably practicable to protect the health and safety of your staff. Secondly, whether you have an express right to require the sick employee to stay at home, or whether they have an express or implied right to attend work, regardless of the circumstances. It would be unusual for an employment contract to contain such an express right and in the majority of cases there is no implied right for an employer to provide work although there is, to pay the employee’s wages.
Consequently, if you require an employee to stay at home this is unlikely to be a breach of implied duties, assuming you have reasonable and non-discriminatory grounds for concern. It goes without saying that a situation like this must be dealt with appropriately, proportionately and sensitively.
What should I do about an employee who self-isolates without due cause or instruction to do so?
If there is no discrimination angle, and the public health advice is such that you could reasonably ask the employee to continue to attend work then it is possible that they could be investigated for misconduct in terms of their refusal to follow a reasonable management instruction, and their unauthorised absence.
In the event of an unauthorised absence, the employee would not be likely to be entitled to pay as they are not willing to attend work.
However, if the employee can work from home, take holiday or unpaid leave, then this may well resolve the issue. If not, you would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of the employee’s refusal.
Do I have to pay my employees if they have to look after dependants who are ill or off school because of closures?
In these circumstances your employees may assert their right to time off to care for a dependant, which is unpaid, unless there is a contractual right to pay. However, given that school closures could last a relatively long time, it is likely that many employees who consider that they can undertake some work while providing childcare would prefer to do so rather than assert this statutory right.
In normal circumstances, you would be right to stipulate that it would not be appropriate for an employee to work from home while also providing childcare. However, as the Coronavirus outbreak escalates, you may need to take a pragmatic approach, given the widespread impact across your workforce if all schools and nurseries close. In this case, putting a blanket ban on working from home while also looking after children may preclude a large proportion of the workforce from performing any duties.
In these unprecedented circumstances, employers may be prepared to take a more relaxed and flexible approach to homeworking and allow employees to work around their childcare responsibilities.
Customer numbers are down and I want to shut my business temporarily, what can I do?
Although the government has announced a series of measure to help businesses survive the economic impact of the pandemic such as business rates reliefs and a grant scheme for small businesses, you may still find yourself in the position of having to close the business temporarily.
You therefore need to be aware that any temporary closure of the business will be treated as the employer’s decision and so, in principle, your employees will remain entitled to full pay. This is on the basis that those who are not on sick leave are willing and able to work, and it is their employer’s decision to temporarily close the workplace which is preventing them from performing duties.
You would need to include a contractual right in their employment contract to be allowed to lay-off your employees for a temporary period of time without pay. The employee may still be entitled to a statutory guarantee payment from you, which is limited to 5 days in any period of 3 months and is subject to a statutory daily cap (currently £29.00). However, if you do not have a contractual right to lay off your employees, then you will be taking the risk of breach of contract unless you get their consent to do so. An employee can also claim that your actions amount to a breach of trust and confidence giving rise to a potential claim for constructive dismissal.
What should I do when an employee tells me they are being bullied by other employees over minor symptoms of flu that may not relate to Coronavirus?
Discrimination laws state that anything done by an employee in the course of their employment must be treated as also done by the employer. It makes no difference whether the employer knows or approves of the act. You will therefore leave yourself open to a potential claim for discrimination and/or harassment, unless you take action. This means a zero-tolerance approach to discrimination and harassment in the workplace, which is communicated both internally and externally, ensuring all workers are aware of your equal opportunties policy and/or anti-harassment and bullying policy.
You should also provide training to all staff on how to recognise different forms of discrimination and harassment and what is considered inappropriate behaviour. You should then deal with the case by following the relevant employment policy, which may include handling any complaint in accordance with your formal grievance procedure.
For further information or advice on Coronavirus or to obtain a FREE Homeworking Policy, call Henry Doswell of Doswell Law Solicitors on 01233 722942. Alternatively, email Henry at firstname.lastname@example.org
Disclaimer: Whilst every reasonable effort is made to make the information and commentary contained in this blog accurate and up to date, Henry Doswell takes no responsibility for its accuracy and correctness, or for any consequences of relying on it. The information and commentary in this blog does not constitute legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter.