Latest coronavirus guidance for employers

We provided an update earlier this week, but things are changing every day. We’ve put together the below updated note, which is intended to provide further brief guidance to the key issues for employers to consider, based on some more frequently asked questions we have received. If you have any specific situations in mind, you should still seek advice. Please bear in mind that given the fast pace of change around this issue this guidance is accurate as at 5 March 2020, but is subject to change.

Where an employee can’t work

If an employee is too ill to work (whatever the diagnosis), the general requirements on sick leave and pay apply. If an employee is ill or has flu-like symptoms, whether that is Covid-19 or not, and they are incapable of working, they will be entitled to sick leave and sick pay. Employees who are absent from work due to sickness are generally entitled to Statutory Sick Pay (SSP). They may also be entitled to contractual (or occupational) sick pay as well, depending on your arrangements. Normally, this entitlement is on the basis that they are incapable of work because of sickness (and not suspected sickness or self-isolation).

Working from home

An employee may feel that they are too sick to attend work but possibly well enough to do some work from home. If this is possible, employees should consider whether this is possible. Ordinarily, an employee who is unfit to attend their normal place of work is deemed to be unfit to work at all but there may be situations where it could be feasible. However, if an employee is sick, an employer should not do anything which might deter an employee from taking sick leave if they want to (as this could lead to further claims for holiday pay, and breaches of the Working Time Regulations).

Time off to look after others

Employees are also entitled to take a reasonable period of unpaid time off work to care for dependents due to unexpected events or in emergencies.

An employee taking time off to look after their children when a school has closed, or to care for an elderly relative when a carer is unavailable, has the statutory right to take a reasonable period of unpaid time off work. This should be sufficient time to make alternative arrangements but in reality it is often to provide the care themselves. An employer should not discipline or dismiss an employee who takes this form of leave without seeking advice as the employee could bring a claim that this is automatically unfair.

Sick pay when an employee ‘self-isolates’

The current guidance from Public Health England is that certain individuals should self-isolate, for example, those who have recently travelled back from an area where the infection rate for coronavirus is high and have symptoms and/or are awaiting a test result, or those who have been identified as having been in close contact with someone who had the virus. During this period, they should remain at home for 14 days and limit their contact with others.

Someone who is capable of work (and not sick at that time) but are known or are reasonably suspected of being infected or contaminated may also be entitled to SSP. As it may deter people who should be self-isolating (or an infection risk) from taking unpaid leave, Health Secretary Matt Hancock has stated that an employee will be entitled to SSP if they are self-isolating on written advice from a GP (or NHS 111). The entitlement to SSP depends on this written advice – if the employee was not advised in writing to self-isolate, they may not be entitled to SSP.

If an employee suspects that they are sick but have not received a formal diagnosis, and are therefore not self-isolating on written advice, ACAS has suggested that an employer should be flexible. Both SSP and contractual sick pay will normally require some evidence of sickness (after a period of time) but it may be that the employee is unable to see a GP due to high levels of demand (or as they are self-isolating). If this happens, the employee should inform the employer as soon as possible.

SSP from day one

The Prime Minister also announced on 4 March 2020 that the usual period of 3 waiting days will not apply so that employees will be eligible for SSP from day one of their absence. This requires emergency regulations, which have not yet been published, so it is not yet clear how this will work with employees who are sick, suspect they are sick, or are self-isolating.

If the employee is symptom-free, or at least capable of carrying out their work, they should be entitled to work from home. An employee would still be entitled to their normal pay if they are working. If they have existing arrangements to work from home, there should be no difficulty.

Asking an employee not to attend work

Where an employee is not sick, is symptom-free and has not been asked to self-isolate, but you have asked them not to attend work, this would not be a period of sick leave. It is similar to a period of medical suspension (but that only applies in a limited set of circumstances). Instead, it could be treated as a period of ‘special leave’. Like suspension pending a disciplinary investigation, this should be on full pay and benefits.

What to do where an employee won’t attend work

Where an employee is not sick, is symptom-free and has not been asked to self-isolate, but they refuse to attend work (for example, because of a fear of becoming infected either at work or on the commute to work), then this is neither sick leave nor medical suspension. This could be considered as a period of unauthorised and unpaid leave. The employee could be asked or required to take this as holiday. However, this could lead to an internal grievance depending on their entitlement and holiday plans.

In principle, an employer could take disciplinary action against an employee who refused to attend work without a good reason, and this could lead to their dismissal on the basis that they have refused to follow a reasonable management instruction.

There is a risk in seeking to dismiss an employee (with a clean disciplinary record) who refuses to attend work for a short space of time because of the outbreak, particularly if they can easily work from home. Each case depends on its circumstances. If they were consistent and had effectively quarantined themselves, for example, rather than being seen out and about in public, and they had an underlying health condition, or disability, that might be relevant.  You should seek advice before issuing any formal letter requiring them to return to work or instigate disciplinary proceedings.

Evidence of sickness

One difficult issue may be the lack of evidence/fit note that a person is ill, if they say that they cannot see a GP due to high demand, or because they have decided to self-isolate without seeking advice. There may be little to distinguish people who genuinely have an issue from those who are abusing the system. You may need to be cautious unless you have any evidence to show that the employee is being dishonest.

For further information, please get in touch.