Coronavirus webinar: Q&A for UK employers

1. What steps should employers take in relation to employees returning to work following an international trip?

Employers should have a working group/task force (or nominated person) to monitor the Government/FCO travel guidance (see Travel Advice here) and to communicate that guidance to their workforce.

However, in many cases, employers are implementing broader travel restrictions than the guidance requires, such as proposed self-isolation when returning from known-affected areas (previously labelled category 1 or 2). Taking the official guidance into account, we recommend that you have a policy to cover international business travel and personal travel (ie holidays), which is communicated to the workforce. As part of that, you should instruct employees to notify you of any travel plans to restricted locations.

2. If an employee is diagnosed with coronavirus, what notifications must the employer make?

If an employee is diagnosed with coronavirus, according to the Government guidance (see here), the management team of the office should be contacted by the Public Health England local Health Protection Team to discuss the case and advise on any action to be taken. In the event that you need to contact them, contact details can be found here.

3. What is the best way to deal with official guidance in circumstances where staff move between offices?

We know that the official guidance varies in different jurisdictions, so many international companies are ensuring that they have a task force or group assigned to looking at these issues and communicating across the jurisdictions. A one size fits all approach will not be appropriate, so it is important to have open communication regarding the actions being taken.

If employees are moving across jurisdictions, for example, if an employee is looking to change their base country with regards to work, they need to be aware of the local situation with regard to the coronavirus. It may also give rise to tax concerns – you may find our Insight on the employment tax issues helpful. Many organisations are cutting down business travel.

4. Should employers put in place a policy in relation to international travel (personal and/or business?)

We recommend that you have a policy in place for both personal travel and international business travel, taking into account the official Government travel guidance (see here). In relation to personal travel, you should instruct employees to tell you if they intend to travel to restricted areas.

If they have already booked holiday to a restricted area, then it may be open to the employee to decide whether to go but you will need to consider the impact of self-isolation on their return. If an employee is planning a holiday to a restricted area, which is not yet booked, and self-isolation on their return is not feasible, you may decline their holiday request – or you could tell them that any period of self-isolation on their return will be unpaid.

For other countries, you may decide to take a business as usual approach. However, if you decide to request self-isolation as a precaution, you should pay them as usual.

5. Should absence due to self-isolation or sickness due to coronavirus be taken into account in dealing with employees with a history of excessive sickness absence?

At this point in time, we would suggest that you treat the absence/self-isolation for coronavirus as a separate issue to the rest of their sickness absence. It would likely be considered unreasonable to proceed to dismissal on that basis in current circumstances.

6. Is the new temporary day one SSP entitlement limited to coronavirus?

We presume that will be the case – yes. The entitlement to sick pay from day 1 will form part of emergency legislation to deal with coronavirus. The Government says that it will be a temporary measure to respond to the outbreak and will lapse when no longer required.

7. Are employees in the UK entitled to leave to stay at home to care for a child/relative?

Where an employee needs to take leave to care for a child (for example due to school or nursery closure), they may need to take emergency dependant leave and you should consult your relevant policies. Emergency dependant leave is likely to be unpaid, so employees would be advised to find alternative childcare arrangements where possible. If this is not possible, it may be possible to agree a flexible working arrangement around childcare or to take paid holiday.

The situation is different if the child or relative in their household has symptoms of coronavirus – in which case, under the guidance issued on 16 March 2020, all household members must isolate for 14 days. Any employee required to self-isolate under this 14-day rule would be entitled to SSP if they are unable to work. However, if they are still able to work from home, they should still receive full pay.

8. Where an employee is willing to work following travel to a category 2 country but the employer wants them to self-isolate, are they entitled to be paid?

The travel guidance based on category 1 and 2 countries has now been withdrawn. Where an employer requests that an employee self-isolates as a precautionary measure, the employee should continue to be paid as usual.

9. Can employers require employees to take periods of self-isolation as annual leave?

This will likely depend on the specific circumstances. If an employee is required to self-isolate by a medical professional (e.g. doctor or NHS 111) or the Government guidance, it should be treated as sick leave and they should be paid accordingly. However, if they choose to travel on holiday to a restricted area (and it is not pre-booked holiday and working from home on their return is not feasible), it may be appropriate to agree a period of annual or unpaid leave.

10. Are employers required to permit employees who do not wish to use public transport to work from home?

Where an employee does not want to come into the office for fear of catching the virus from using public transport, you should listen to their concerns and, if they are genuine (particularly for example if that employee is at higher risk due to underlying health conditions), you should consider whether you can resolve them by offering some alternative arrangement, such as flexible working or homeworking – in line with the Acas guidance.

On 16 March 2020, the Government announced that people should start working from home when they possibly can.

Under normal circumstances, an employee does not have the right to work from home unless their terms of employment allow for it (e.g. in their contract or other policy), so any arrangement to work from home would need to be agreed. However, given the Government’s guidance on 16 March 2020, it is presumed that employers will authorise home working, where this is possible.

In roles where working from home is not feasible, it might be possible agree a period of holiday or unpaid leave, but there is no legal requirement to offer this. If an employee still refuses to come to work, you can take disciplinary action but in the current circumstances, such action might be deemed to be unfair.

11. Is there specific guidance in relation to employees with known medical issues or who are pregnant?

On 16 March 2020, the Government issued new guidance for older people and vulnerable adults (see here), and have now included those who are pregnant within that group.

There are special health and safety duties that apply to pregnant employees, including requirement to conduct a risk assessment and alter their working conditions to avoid any significant risk. See here for more information on coronavirus in pregnancy.

For those with underlying medical conditions putting them at higher risk, such as those who are immunosuppressed, we recommend that you treat differently given that there is a known risk factor and therefore you should consider very carefully accommodating homeworking or other flexible working arrangements (away from others). It may also be the case that such health conditions constitute a disability under the Equality Act 2010 and failing to make appropriate adjustments or applying a blanket policy could carry a discrimination risk.

12. Can employers ask staff whether they have a condition which makes them vulnerable?

Personal data concerning health amounts to “special category data” under UK data protection law and there is unlikely to be any lawful basis to request it at present. As far as we understand, having an underlying health condition does not make it more likely that they will spread the virus to others. We would therefore recommend that you invite employees to let you know if they are vulnerable for any reason (which they likely would do) so that you can discuss appropriate action to be taken.

13. What health and safety obligations apply in relation to homeworking?

The Health and Safety Executive (HSE) has specific Guidance on homeworking.

An employer has a duty of health and safety towards its employees “so far as is reasonably practicable”. It is required to carry out a suitable risk assessment to identify hazards and assess the risk. The HSE acknowledges that a lot of work carried out at home is likely to be low-risk office type work.

However, there are some basic health and safety issues to consider:

• Equipment: An employer is only responsible for the equipment it supplies and there is no legal requirement to provide the equipment necessary for homeworking. Any equipment supplied must be suitable for purpose, maintained in good working order and inspected regularly.
• Workplace: The employee’s work environment at home should not breach minimum standards of temperature, lighting, cleanliness and noise.
• Electricity at work: The use of electrical equipment at work is covered by a variety of EU and UK legislation. The employee’s domestic supply, including electrical sockets, remains their responsibility and they should be reminded of this.
• Display screen equipment: An employer is required to carry out a suitable and sufficient analysis of workstations in order to assess risks to health and safety. An employee working from home should be properly trained in the use of equipment and in a safe system of work including the importance of rest periods, posture and position of the screen and keyboard etc.
• First aid: An employer should ensure that there is adequate equipment for an employee working from home to render first aid to him or herself if necessary while working. The precise requirements depend on the nature of the work and the risks involved. Most homeworking will be of low risk and should not create any particular problem.
• Accidents: A serious accident or injury at work must be reported to the employer wherever it occurs. The employer should therefore establish a proper procedure to allow those working from home to report accidents.
• New and expectant mothers: specific obligations apply (as above).

We recommend that employees are instructed to practice working from home – in the event that they are required to do so - and to raise any issues or concerns as soon as possible.

Other country-specific advice

We have created pages offering country-specific advice across numerous European jurisdictions. See more here

Webinars

COVID-19 update: challenges for businesses and the potential impact on global economies

COVID-19: Legal and practical considerations arising from the coronavirus outbreak (Asia employment team)

COVID-19: Employment issues (UK and Europe)