FAQs - COVID-19 and employment law

We are receiving a large number of queries from clients with regard to COVID-19 and employment law. We have already published a set of FAQs on the Coronavirus Job Retention Scheme (or furloughing), which you can access here. This article covers some of the other areas that are coming up frequently.

Going to work

In what circumstances can employees go to work?

Government guidance, issued on 23 March 2020, was that employees should only go to work if it is not possible for them to work from home. Some jobs require people to travel to their place of work, such as employees who operate machinery, those who work in construction or manufacturing, those who deliver front line services and those who work in essential retail. Where employees are still going to work, employers should ensure that it is safe for them to do so, eg by making sure that they stay two metres away from other people.

Home-working

Can you require employees to work at home?

The Government has stated that employees should work at home wherever possible, and that travelling to and from work is only permitted where work absolutely cannot be done from home. In normal circumstances a change to an employee's place of work could only happen if it was covered by a term in their contract (such as a mobility clause) or if they agreed. In these unusual times, it is unlikely that an employee would refuse to work from home. If it does happen, the employer should encourage the employee to work from home and, if necessary, instruct them to do so. The employer could potentially take disciplinary action if the employee still refused and may be able to withhold pay.

In some cases employees may feel unable to work from home owing to caring commitments. If so, employers should speak to the employee about the kind of flexibility the employer can offer. It may be that variations to working hours, combined with an understanding approach, will enable the employee to do some work. In this emergency situation, there will be an awful lot to be said for the best position compromise rather than something which works perfectly.

Now that schools and nurseries have closed, what happens where an employee has to look after a child at home?

Employees are entitled to take time off work to look after a dependant, including their children, in an emergency or unexpected event. The length of time the employee is entitled to take off is not specified but it must be reasonable. There is no legal requirement for this time off to be paid but employers may have a policy under which time off for dependants is paid. This type of leave is designed to cater for emergencies and to give the employee an opportunity to sort out alternative care arrangements. Because of the likely length of school closures, it may not be appropriate.

If an employee has to look after a child but is still capable of working, employers may wish to adopt a flexible approach to allowing the employee to work around their childcare needs, while still being paid. For example, the employee may be able to change their hours in order to work alternately with their spouse or partner and share childcare with them. If this is not possible, an employer and employee could agree that an employee can work shorter hours on reduced pay, use some of their holiday entitlement or take unpaid parental leave.

Who are the key workers who can continue to send children to school?

The Government has asked parents to keep their children at home wherever possible so that schools remain open only for those children who absolutely need to attend. Parents who are classified as "key workers" and those with children identified as vulnerable can continue to access childcare for their children. Key workers include those who work in the following sectors:

• Health and social care
• Education and childcare
• Key public services
• Local and national government
• Food and other necessary goods
• Public safety and national security
• Transport
• Utilities, communication and financial services.

For further details of who is considered to be included in the above sectors, please refer to the Government's guidance here.

Self-isolation

Are employees who have been advised to self-isolate entitled to pay?

On 13 March 2020, the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 came into force. They provide that SSP will be payable to anyone who isolates themselves in order to prevent infection or contamination with COVID-19, in accordance with guidance published by Public Health England, NHS Scotland or Public Health Wales. It was announced on 17 March 2020 that vulnerable people who are staying at home but cannot work from home and those caring for people in the same household with COVID-19 will also get SSP. If employers offer contractual sick pay, it is good practice to pay this when an employee self-isolates. If an employee who is self-isolating is well and able to work from home, they should continue to work and be paid as normal. 

What can you do if someone refuses to self-isolate?

If an employee turns up for work after being advised to self-isolate, they should be sent home as the employer has a duty of care to other employees. If someone refuses to self-isolate, this would be a failure to follow a reasonable instruction from management and could result in disciplinary action. This should, however, be a last resort. Now that most employees are working at home, this is less likely to happen.

Do you need evidence of self-isolation, e.g. a fit note?

Employers may need to be flexible if they require evidence of sickness from the employee, eg someone may not be able to provide a fit note if they have been told to self-isolate. Isolation notes are now being offered through NHS 111 and the NHS App, which will provide evidence that an employee has been advised to self-isolate. In any event, evidence should not be required for absences of seven days or less.

What happens if an employee is worried (owing to caring responsibilities for example) and wants to self-isolate?

Both employers and employees should exercise caution and take reasonable steps to prevent the risk and spread of COVID-19 in these exceptional circumstances. Employers should try to come to a reasonable agreement (e.g. working from home, if appropriate, or taking time off as holiday or unpaid leave). What is reasonable will depend on the degree of risk and the individual’s personal circumstances, for example people who are vulnerable or live with someone who is vulnerable due to an existing health condition, age, pregnancy, mental health condition or caring responsibility.

Employees who choose to self-isolate without being advised to do so are not entitled to statutory sick pay and, depending on the circumstances, there may be grounds for following normal absence management processes.

Now that most industries are working from home this will mostly be an issue for employers trying to provide essential services who need to maintain particular staffing levels.

Sickness

Can you insist on sending someone home who has symptoms?

If an employee is in the workplace and has symptoms, the employer can require them to go home. It should do this, as it has a duty of care to other employees. If an employee is working from home and has symptoms, they should take sick leave.

What pay will sick employees be entitled to?

The normal sickness and sick pay provisions in the contract of employment or staff handbook will apply. It was announced in the Budget on 11 March 2020 that SSP will be payable from day 1 (rather than day 4) if an employee has COVID-19 and that this will apply retrospectively from 13 March. Regulations have now been made to implement this change, which apply retrospectively from 13 March. They permit payment of SSP from day one of an employee's absence from work where the employee is incapable of working by reason of COVID-19. They also specify that a person is incapable of work because they are self-isolating (and therefore entitled to SSP) where they have symptoms of COVID-19 and are self-isolating for seven days or where they live with someone who has symptoms and are self-isolating for 14 days. Employers with fewer than 250 employees as at 28 February 2020 will be able to reclaim the cost of SSP paid to an employee for up to 14 days from the Government. No GP fit note will be needed and it will cover SSP paid from 14 March 2020. Regulations to implement these changes have not been made yet but are expected soon.

Options where there is a downturn in business

Can employers make employees redundant instead of using the furlough scheme (the Scheme)?

While it is not compulsory for employers to use the Scheme, the Government has made clear that its aim is to protect jobs and prevent large scale redundancies as a result of the crisis. Therefore, for employers currently considering redundancies or for those who have already commenced a redundancy process, the strong message is to consider and reflect before taking any action. The decision to make redundancies is ultimately at the discretion of employers but they must ensure that the redundancies are genuine and that they follow a proper redundancy process, which will include considering alternatives to redundancy (such as the Scheme). If an employer has not at least considered whether the Scheme might help it minimise redundancies then there is a risk that this could affect the fairness of any dismissals.

When can employers lay off employees or put them on short-time working?

If there is a clause in the contract of employment allowing them to do so, employers can lay off employees for a period of time while still retaining them as employees. This means that employees are provided with no work and no pay (as opposed to being furloughed, which keeps employees earning 80% of their normal pay). Short-time working involves employees being provided with less work (and less pay) for a period of time while also being retained as employees. Again, there must be a clause in the contract permitting this.

Neither layoffs nor short-time working are long-term solutions. To exercise either of these options, employers must have a contractual right to do so (or obtain employees' consent, which is unlikely to be forthcoming in view of the Scheme) or they face being in fundamental breach of contract, entitling employees to resign and claim constructive dismissal or to claim unlawful deductions from wages or breach of contract. Employers should consider using the Scheme before going down this route. 

Can employers make employees take paid holiday?

Employers can require employees to take holiday at a particular time by providing twice as much notice as the period of absence to be taken. For example, to enforce a five day period of absence, 10 days' notice must be given. Where the employer does not have enough work for employees, this may be an option provided that employees have sufficient holiday entitlement. Now that the Scheme has been unveiled, employers should consider using that instead.