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18 March 2020
The coronavirus outbreak has brought to the fore numerous employment law issues, including questions about:
This article examines what UK employers need to know about the outbreak.
Employers have a duty under UK law to take steps that are reasonably necessary to ensure the health, safety and welfare of all of their employees, including those who are particularly at risk for any reason. Employers should take simple precautions, such as:
Employers can ask employees for information about their health, but this is a special category of data and so should be treated confidentially. Further, employers can ask to be notified if employees have recently travelled to an affected area. Although employees can be required to inform their employer of a coronavirus diagnosis, they cannot be required to undergo testing for coronavirus by their employer (either routinely or if they display symptoms).
Current government guidance on quarantining is as follows:
Employers can agree to requests for working from home in line with their usual flexible working or homeworking policies. Employers should consider staffing requirements and reserve the right to require workplace attendance on short notice. Special consideration should be given to requests from vulnerable individuals (discussed below) and employees with dependants.
Current government guidance does not recommend closing workplaces. If an employer does so, it should pay employees their normal pay. The exception to this is 'laying off' employees (providing employees with no work or pay for a period while retaining them in employment). However, this cannot be done without a clear contractual right or employee consent.
Employees have a statutory right to a reasonable amount of unpaid time off where it is necessary to deal with unexpected events involving their dependants, including where a school unexpectedly closes. Some employers offer paid leave in these circumstances.
Sick leave and pay
Employees are entitled to their employer's regular contractual sick leave and pay provisions, which normally include any entitlement to statutory sick pay (SSP). Even employees without contractual entitlements will be entitled to receive SSP if they meet the conditions. If employees are not entitled to receive any sick pay, employers could consider paying it on a discretionary basis if staff would otherwise try to return to work while still sick.
Quarantine and pay
Employees who are not sick but are asked by their employer to remain away from work should be paid their normal salary. There is generally no right to SSP if the employee is fit for work, but the government has changed the rules to temporarily extend SSP to individuals who are unable to work because they have been advised to self-isolate, even if they have not displayed symptoms. The best way to ensure that employees follow government guidance and do not come into work is to provide full pay in all cases.
If employers insist on employees travelling to locations against government guidance, they will be in breach of their health and safety obligations. With regard to employees travelling elsewhere, employers should carry out risk assessments. If an employee refuses to travel in breach of their contract, the employer could treat it as a disciplinary matter, but it would be prudent to first investigate the individual's reasons. An employer could refuse (or revoke) approval for employees' personal travel to regions affected by coronavirus if it considers the trip irresponsible.
Any request by an employer for employees not to attend work should relate to potential exposure to the virus. The request should apply to all staff regardless of their nationality or ethnicity; otherwise, there will be a risk of direct race discrimination claims under the UK Equality Act.
Refusing to approve personal travel to badly affected areas may disproportionately affect certain employees (eg, staff of Chinese ethnic origin), thereby giving rise to indirect race discrimination. However, an employer may be able to justify such a ban as a proportionate means of achieving a legitimate aim.
Employers can be vicariously liable under UK law if their employees racially harass colleagues. An employer in this position will avoid liability only if it can show that it took all reasonable steps to prevent employees from behaving in such a manner.
Current guidance in the United Kingdom is that coronavirus can cause severe symptoms for:
Employers should carry out risk assessments and consult with individuals before taking any action. Further, employers have additional, specific duties towards pregnant employees.
The issues discussed above should be read in conjunction with the latest official information and advice on the coronavirus outbreak:
For further information on this topic please contact Madeleine Jephcott at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
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