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Coronavirus - Employment law update - the UK

  • United Kingdom
  • Global
  • Coronavirus - Country overview
  • Coronavirus - Workforce issues
  • Employment law

04-05-2020

Overview

Our previous briefings on this topic (Coronavirus: Implications for Employers) set out the main issues facing employers when dealing with the COVID-19 outbreak. In this briefing we provide updated guidance on some of the more common issues facing UK employers.

In a situation of great uncertainty, employers need to focus on maintaining their employees’ trust and confidence by showing leadership; following government guidance; and by acting fairly, reasonably and consistently.

General Principles

UK employers should:

  • Monitor and follow advice and guidance from relevant authorities such as the World Health Organisation (“WHO”); Public Health England; the NHS; the government and ACAS (WHO guidance; Public Health England guidanceGovernment guidance; ACAS guidance)
  • Assess the risks faced by their employees and visitors and implement measures to mitigate those risks, paying particular attention to vulnerable staff (such as those who are pregnant; with impaired immunity; on secondment or working away from home)
  • Inform their employees and, where relevant, recognised unions about their proposed measures
  • Review their need for flexible working and whether existing contracts and working arrangements permit such flexibility, and if not, consider how this might be achieved
  • If necessary, consider options for reducing capacity through implementing reduced working hours; enforced holiday; unpaid sabbaticals; or as a last resort, redundancies
  • Review policies governing business travel, holidays, sickness, caring for dependants and home working to ensure a reasonable and consistent approach, taking account of their risk assessment and government guidance
  • Review relevant insurance policies and guidance issued by their insurers
  • Update contact details for staff and management
  • Devise arrangements for dealing with staff who may be at particular risk of contracting COVID-19; or who report symptoms and may have COVID-19

Employer’s duty of care – what does the law in the UK say?

Employers in the UK have a legal duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and anyone else who may be affected by the employer’s business, including visitors and members of the public.

Regulations require employers to undertake a “suitable and sufficient assessment of the risks to the health and safety” of employees and anyone else who may be affected by the employer’s business. This duty is a continuing one, and assessments must be recorded. The Regulations contain specific provisions in relation to young employees and pregnant women.

Employers should therefore consider whether their existing arrangements for protecting staff and visitors take account of the risks arising from COVID-19 and they should regularly re-assess those risks as the situation develops or new guidance is issued by the government, Public Health England or the WHO.  This would include conducting risk assessments to identify the likelihood of staff contracting COVID-19 whilst at work (including for staff returning to work after a period of closure) and appropriate measures to control that risk.

The government has issued guidance on social distancing (Government guidance on social distancing), advising that those who are clinically vulnerable are at higher risk of severe illness from COVID-19 and should take particular care to minimize contact with others outside their household.  That group includes those who are aged 70 or older; or have certain underlying health conditions; or those who are pregnant. Employers should therefore pay particular attention to staff falling within those groups in carrying out risk assessments and implementing measures to address risk areas.

Public Health England has recommended precautions to help prevent people from catching and spreading COVID-19.  Many UK businesses have started to provide personal protection equipment to their staff, such as alcohol wipes and hand sanitizers, with additional measures for staff at higher risk of exposure to COVID-19, for example, those in contact with medical patients or visitors from high-risk regions. 

Employers should inform employees about all social distancing and infection control measures they are taking and the extent to which they require their staff to adhere to these measures (such as personal hygiene, social distancing etc). The government continues to  encourage home working where possible and so employers should consider if and how this might be achieved, especially for staff who are at increased risk.

Employers may also consider implementing measures to screen visitors to their premises, for example requiring them to certify that they have not recently visited a high risk area. If an employer fails to implement appropriate measures then it will potentially leave itself exposed to employees asserting that they have grounds for refusing to attend work, on the basis that doing so would place them in “serious and imminent danger”. Employers should consider implementing protocols to deal with employees under mandatory quarantine; who have self-quarantined; who have travelled to high risk destinations; or who appear to be at risk or are ill, potentially with COVID-19. Many employers have assembled a project team with members specialising in employee relations; insurance; travel and events; communications and occupational health to work together on developing appropriate protocols. Protocols will help to ensure consistent and reasonable treatment, thereby reducing the risk of constructive dismissal or discrimination claims. In summary, employers should consider, and where appropriate implement, appropriate measures; explain those measures to their employees; and explain the steps they are taking to monitor the situation. See our Beyond lockdown: returning to work briefing.

Business travel – should travel continue?

Employers should implement policies to minimise the risk of employees catching COVID-19 as a result of working, for example health screening questionnaires for staff members returning from abroad and delaying or cancelling all non-essential business travel and meetings. 

The government is currently advising against all non-essential travel worldwide. Where travel is essential, employers should first check government guidance and ensure that contingency measures are in place to help staff who might have to self-isolate or who might fall ill when travelling away from home, or who might be stranded abroad due to border closures.

Employers should review their current travel and medical health insurance arrangements and whether they remain in force and are adequate. 

Flexible working - can an employer require staff to work flexibly?

Employers are likely to need staff to work flexibly, including asking staff to work from different locations, to work from home or to perform different duties. The government guidance on social distancing encourages employees to work from home, where possible. Staff contracts may entitle the employer to require staff to work flexibly. If so, employers should normally consult with staff before exercising their rights to require flexible working and should to listen sympathetically if staff have personal reasons why they cannot work flexibly.

If the employer needs employees to work outside the terms of their existing contracts then it will have to agree the flexible arrangements with the individual employee, or with a recognised union if collective bargaining is in place.

If the individual (or a union on their behalf) refuses to agree these changes then, depending on the circumstances, it may be possible to impose them either following consultation or through a process of dismissal and re-engagement. If a recognised union is in place then the employer should take legal advice before proceeding to implement changes without the union’s agreement.

In any event, it is important that the employer can justify the need for flexible working and that it behaved reasonably and proportionately when implementing different working arrangements.

Alternatively, if the reason for flexibility is personal to the employee, in that the employee is at risk of having been infected, then the employer would have good grounds for requiring the employee to work from home, provided their enforced removal from the workplace lasts no longer than is necessary and they are provided with support.

Staff who are unable or unwilling to attend work?

Some staff may be able but unwilling to attend work because they are concerned about contracting CoVID-19. ACAS guidance advises employers to listen to the reasons for their concerns and to try to find an agreed resolution. Where work can be undertaken from home, employers should consider how this might be achieved, in view of the government guidance encouraging home working.

In other cases, such as site-based work or where staff are unable to work due to caring for dependants, it may be possible to agree that time away is taken as holiday or unpaid leave. The employer may be able to provide support and advice via an existing Employee Assistance Programme. However, if an agreed resolution cannot be found and an employee refuses to attend work without good cause, disciplinary action could be considered.

Before taking action, employers should ensure that they have undertaken a risk assessment and have taken steps to mitigate any workplace risks which might cause employees concern, especially for any employees who are at increased risk, such as those aged over 70; or who have an underlying health condition; or who are pregnant. They should also ensure that they have dealt with requests to remain away from work in a proportionate, reasonable and consistent manner.

Other employees may be willing but unable to work because they are caring for dependants, schools are shut or their transport is disrupted. Employees have a right to request a reasonable amount of unpaid time off work to deal with domestic emergencies. Staff may also request flexible working, in which case the relevant statutory procedures would need to be followed. 

Further, workers, including agency workers, have a statutory right to take (unpaid) emergency volunteering leave, provided that they are in receipt of an “emergency volunteering certificate” (“EVC”) from a relevant health or social care authority (see our briefing here). EVCs will be available to those who have suitable medical or social care skills and experience.

If staff cannot attend work, are they entitled to pay?

This will depend on the reason for the non-attendance.

Staff who cannot work because they have been infected with COVID-19 will normally be entitled to sick pay in the usual way.

Pay for staff members unable to come to work due to caring responsibilities, for example where schools are closed or where they are caring for sick dependants, should be determined in accordance with their employment contract and the employer’s usual policy, ensuring that all requests are treated in a reasonable and consistent manner.

Note that employees have a statutory right to take a reasonable amount of unpaid time off work to deal with domestic emergencies affecting their dependants, including unexpected disruption to arrangements for the care of their children.

The position of staff absent from work due to self-isolation in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales (i.e. due to symptoms of COVID-19 or because someone in the household is displaying symptoms) or they have a letter from the NHS or a GP telling them to stay at home for a least 12 weeks (“shielding”) has been clarified through the enactment of emergency legislation temporarily changing the rules on statutory sick pay. Eligible employees self-isolating in those circumstances will now be entitled to statutory sick pay. Further, such eligible employees are entitled to receive statutory sick pay from the first day of absence (normally  the fourth day of absence) where the period of self-isolation started on or after 13 March 2020 or period of shielding started on or after 16 April 2020.

Employers should decide how they intend to deal with absence scenarios as part of their planning process. If they wish to require employees to use holiday in specific circumstances (for example, where employees have chosen to take holiday in a high-risk area and then have to self-isolate), this should be clearly communicated to employees in advance.

Reporting - Can an employer require staff to report suspected cases of the COVID-19 relating to themselves or those they have come into contact with?

Employers are obliged to maintain a safe place of work and should consider taking appropriate steps to prevent staff who are infected (or who are likely to be infected) from coming into the workplace. This may include, for example, health screening questionnaires for staff members returning to work from high-risk areas and training managers to spot symptoms of COVID-19.

Individual staff contracts may permit checks. A refusal to undergo a check when there are reasonable grounds for checking the employee’s health (for example, they appear ill or have been in a high risk area) may result in that employee being excluded from the workplace and possibly being denied pay.

Employers can request staff to report if they are infected or have been exposed to infection. Further, to notify the employer if they fall within one of the groups where there is an increased risk of severe illness from COVID-19, to enable contingency measures to be taken. However, under data protection law, such information about an individual’s health counts as a ‘special category’ of personal data which may only be processed in limited circumstances. The processing of this information (for instance what and how it will be used and with whom it will be shared – as strictly necessary) should be made clear and employers should ensure that the processing is necessary and appropriate for the stated purpose and is carried out in a proportionate manner. Maintaining the security of the personal data will be fundamental.

Employers must be careful to avoid unlawful discrimination which might arise if (for example) employees with a particular nationality or ethnicity are singled out for checks.

If there is a decreased requirement for staff due to the COVID-19 outbreak, can employers implement measures such as compulsory leave, reduced hours, or lay-offs?

Employers can designate the dates on which an employee takes annual leave, provided the appropriate notice is given under their contract and the Working Time Regulations 1998. However, companies may wish to consider additional measures to achieve cost savings, such as reduced hours, unpaid sabbaticals or lay-offs.

Where an employer has no contractual entitlement to impose such measures, the measures should be agreed with employees (and, where relevant, recognised unions) in advance to avoid legal risk. Further, even where lay-off or reduced hours is pursuant to an existing contractual right or is with fresh agreement, a trigger point could be reached which would entitle employees to leave and claim redundancy payments. This is a complex area and careful planning will be key to ensure that the intended cost savings can be effectively realised.

The UK Coronavirus Job Retention Scheme enables employers to access government funds, via HMRC, to reimburse them for specified employment costs for certain “furloughed” workers who are temporarily not required to work as a result of COVID-19, subject to conditions and limits. However, changing the status of staff to “furloughed” remains subject to existing employment law and the employer and employee must agree that the employee will cease all work in relation to their employment during the furlough period. See our latest briefings on the Coronavirus Job Retention Scheme on our Health Matters: Coronavirus update Hub.

What other contingency planning steps should employers be taking?

Effective planning is key to ensuring business continuity and the protection of employees. In addition to the above, employers should:

  • Create a senior team to co-ordinate monitoring government guidance, implementing measures and providing information and support to staff
  • Devise an appropriate communications plan to keep staff fully informed, even when they are absent from work, together with provision of emergency contact details
  • Ask employees to report if they are ill or at particular risk of infection; and inform them of the steps they should then take to receive appropriate medical attention
  • Train managers on the employer’s measures and provide them with information to identify and respond to risks, as well as providing support and training to staff on key facts and risks
  • Consider alternatives to travel such as using videoconferencing or webinars
  • Identify key roles in their business which are essential for business continuity and the measures necessary to ensure their resilience (for example remote working or split key teams into different locations)
  • Consider any measures necessary to continue to sustain widespread home working
  • Review relevant policies (for example home working, sickness, emergency leave) and agree changes to staff contracts to deliver flexibility
  • Consider how temporary shutdowns of premises might be managed
  • Consider contingency measures to reduce capacity such as reduced hours, compulsory holiday, unpaid sabbaticals and lay offs
  • Review their insurance coverage
  • Consider their stance on requests to work flexibly and on self-isolation, quarantine and sickness and ensure that it is reasonable, fair and applied consistently.

Where can guidance from the UK government and international bodies be found and monitored?

The UK government’s website provides the latest official information on COVID-19 in the UK - COVID-19 information for the public

The World Health Organization’s information on the COVID-19 may be found here -  WHO guidance

Other useful links for employers are as follows:

If an employer has business operations abroad, what additional steps should be taken?

Companies operating abroad should comply with local regulations and guidance from international bodies such as the World Health Organisation. They may also be subject to local laws requiring them to implement special measures or to notify public health bodies if any of their employees are suspected to be ill.

Beyond compliance with local laws, companies should ensure measures are taken to properly assess the risks to staff and the impact on business continuity and should adapt their plans accordingly.

Our extensive global footprint means that we are well placed to help employers, wherever they have a presence. Our teams across the world have been supporting employers to steer through the legal and practical employment implications raised by the outbreak, including producing a variety of updates.

Please contact the following partners if you require advice and assistance outside of the UK:

Global:
Diane Gilhooley
Hannah Wilkins
Elizabeth Graves

US:
Scott McLaughlin 
Michael Woodson

Asia:
Jennifer Van Dale

Europe:
Frank Achilles
Deborah Attali 
Valentina Pomares

Please see all our latest briefings on COVID-19 on our Health Matters: Coronavirus update Hub.