This note addresses some of the key questions employers are asking about their obligations to employees when dealing with the current COVID-19 outbreak. It will be updated as the situation develops.

Government guidance on the outbreak, which is changing frequently, including in relation to who has to self-isolate and the periods of self-isolation required, can be found here.

Sickness absence, pay and other issues

Can we require an employee not to attend the office because we suspect they may have COVID-19 and if so what are they entitled to be paid?

This will depend on the reasons for excluding an employee. If you are doing so in line with government guidance on self-isolation, it will be reasonable to require the employee not to attend the office, in order to comply with health and safety obligations to other staff. The employee will be eligible for statutory sick pay from day one and government guidance asks employers to "use their discretion and respect the medical need to self-isolate in making decisions about sick pay".

If an employee is being sent home in circumstances where there is no government guidance to that effect, the employee will generally be entitled to be paid in the normal way if they have a contractual right to be provided with work (as most employees will). The employer is under an implied duty to pay wages for work that the employee is willing and able to perform and which the employer's actions have prevented them from carrying out.

Is an employee entitled to sick pay whilst self-isolating even if they do not in fact have COVID-19?

The government has recently announced a temporary change to statutory sick pay rules to ensure that those who are self-isolating in accordance with government guidance are entitled to statutory sick pay from day one of their absence, even if they are not infected with COVID-19.

Whether an employee will be entitled to company sick pay in those circumstances will depend on the terms of the sickness absence policy. However, employers will need to consider whether not offering company sick pay in those circumstances makes it more likely that employees will ignore advice and attend for work, potentially affecting other employees. They will also want to bear in mind the government guidance that employers should respect the medical need to self-isolate when making decisions about sick pay. If an employee is asymptomatic, it may be possible to agree that they will work from home, in which case they would be entitled to be paid as normal.

Can we require medical evidence that someone is off sick?

Employers are normally allowed to ask for medical evidence such as a doctor's note if an employee has been absent from work for more than seven days. At the moment, the government is "strongly suggesting" that employers should "use their discretion" around the need for medical evidence where an employee is staying at home in accordance with the government's public health advice.

Can we ask staff to have their temperature screened when arriving at work?

If employees consent to having their temperature taken when they arrive at work, this is uncontentious. If this reveals that an employee has a high temperature, they should then be required to self-isolate in accordance with current government guidance.

However, the question arises as to how to respond if an employee refuses to give consent, particularly in circumstances where the government is not currently recommending that employees be screened in this way. Although in principle you could take disciplinary action against the employee for refusing to take a test, on the basis that you have a good reason for requesting it, in the current situation that might appear heavy-handed and a dismissal for refusing is likely to be unfair.  It might, however, be reasonable to exclude an employee from the workplace if they refuse a test.

Can we continue to operate normal sickness absence procedures?

In theory, absences related to COVID-19 can be treated in exactly the same way under attendance management policies as any other type of absence. Employers will want employees to report sickness absences in the normal way. However, in practice, employers may conclude that such absences should be discounted from sickness trigger calculations to avoid the risk of employees coming to work when they ought to be self-isolating. In the long run this is likely to be a way of managing the risk of large scale infection of the workforce. Disregarding COVID-19 absences could also be a reasonable adjustment for employees with disabilities.

Home working and pay

Can we require employees to work from home to prevent COVID-19 from spreading?

If you have a contractual clause that allows you to direct where an employee works, you have the right to direct them to work from home.

Even where there is no such contractual entitlement, in the current circumstances it will almost certainly be a reasonable instruction to require employees to work from home, particularly given that government guidance encourages home-working wherever possible. Given that there is no financial loss to the employee it is difficult to see on what basis an employee would challenge such a decision.

Can employees require an employer to allow them to work from home?

In most cases the answer to that question will be no. An employee is not entitled to demand to work from home simply as a protective measure.

However, if an employee is in a high-risk group because of their age or as a result of under-lying health conditions, the employer might be acting in breach of its duty of care not to allow employees to work from home where they are able to do so. Refusing to allow home working for such groups could also amount to indirect age or disability discrimination.

It is possible that allowing an employee to work from home would be a reasonable adjustment for people with certain types of disability, particularly where they are in an at-risk category. This could also potentially include employees with mental health conditions such as anxiety or OCD that may make them less able to travel to work or attend the workplace during a public health emergency.

Do we have to allow an employee to work from home when we know their children will also be at home eg because schools have closed?

An employee generally cannot insist on homeworking alongside taking care of their children. However, given that many employees are likely to be facing this situation in the coming weeks, and that grandparents are less likely to be available to help out as emergency childcare, employers may want to take a pragmatic approach to homeworking in those circumstances, perhaps allowing employees to work flexibly for a period. Staff could also be invited to take other types of leave, such as parental leave, perhaps on a part-paid or more flexible basis than usual. Employees could also take a period of unpaid time off to deal with an emergency situation involving a dependant (see below).

Do employees remain entitled to their normal pay while home working?

Yes, if an employee is carrying out their normal duties from home, they remain entitled to receive their normal pay.

What happens to roles that cannot be performed from home in the event of an office closure?

While employees remain able and willing to work, they will be entitled to be paid. For longer periods of closure, employers will need to consider whether they are contractually entitled to place staff on short-time or temporary layoff, although such provisions are relatively uncommon outside certain industry sectors.

Other time off

Can we force employees to take annual leave if we are forced to close the workplace?

Under the Working Time Regulations, employers can require employees to take all or part of their statutory annual leave at specified times by giving them the appropriate amount of notice (broadly twice as much notice as the period of annual leave concerned).

Any holiday to which employees are entitled in excess of their statutory entitlement will be governed by the rules of the employer's holiday policy.

Are employees entitled to time off if a child's school or child-care provision closes?

Yes, employees have a right to unpaid time off to deal with emergency situations involving a dependant, including where there has been an unexpected disruption to caring arrangements.

In theory this is designed to cover short periods of absence only, while an employee makes alternative arrangements for their dependant. It is unclear how the right will be interpreted in circumstances where making alternative caring arrangements is impossible because of the COVID-19 situation. In practice, because leave is unpaid, there is limited incentive for an employee to take leave where they do not need to do so.

Are employees entitled to time off if their child is sick?

The right to unpaid time off applies in this situation also.

However, if the child is suspected as having COVID-19, government guidance requires households to self-isolate. The government is changing the statutory sick pay rules to ensure that employees who are self-isolating in accordance with government guidance are entitled to statutory sick pay. This change is expected to take effect retrospectively with effect from 13 March 2020.

Managing economic difficulties arising from the current situation

Can we implement a unilateral pay freeze or cut or require staff to reduce their hours?

A pay freeze should be straightforward to implement.  In the private sector it is relatively unlikely, although not impossible, that employees will have a contractual right to a pay rise. To the extent that decisions on pay rises have not been taken and communicated to employees, a pay freeze can be implemented where there is no right to an increase.

However, imposing a pay cut or requiring employees to reduce their hours unilaterally will generally amount to a breach of contract. Employees could choose to resign and claim constructive dismissal, or (more likely) protest against the pay cut, keep working and bring unauthorised deduction from wages claims in the employment tribunal or a breach of contract claim in the county court.  The position may be different if the contract allows the employer to reduce an employee’s hours (for example in the case of a zero hours contract or the contract of an hourly paid employee which expressly grants the employer the power to vary the hours worked).

If employees are prepared to agree to a pay cut or reduced hours and pay, perhaps on the understanding that the arrangement will be temporary and revisited once the current crisis is over, it would be possible to implement a pay cut or change in hours by consent.  Employees may be more willing to agree to reduced hours or a pay cut in circumstances where this might avoid more draconian measures like redundancies.

Can we require staff to take a period of unpaid leave?

Again, it will generally be a breach of contract to require an employee to take a period of unpaid leave, entitling the employee to resign and claim constructive dismissal, or bring an unauthorised deduction from wages claim in the employment tribunal or a breach of contract claim in the county court.

In limited circumstances where an employee's right to be paid depends on being given work by the employer, the employer may have a contractual entitlement to lay the employee off for a period without pay or to put the employee on short-time working. The employee may be entitled to a statutory guarantee payment or a statutory redundancy payment depending on the circumstances.

Employees may be willing to agree to take a period of unpaid leave, particularly if this is offered as an alternative to redundancies. In the financial crisis some employers offered an element of pay during leave as an encouragement to staff to take it. It was also relatively common to allow employees to spread the pay they lost over a period of time, such as six months, so that they did not have to suffer a complete loss of pay up front.

Do normal redundancy processes apply?

Yes, at the moment the normal requirements for employee consultation where an employer is proposing to dismiss 20 or more employees at one establishment within a period of 90 days continue to apply. Consultation must take place for 30 days if there are between 20 and 99 redundancies and for 45 days if 100 or more redundancies are proposed. It is not clear whether the current pandemic would be regarded as "special circumstances" making the normal periods of consultation not reasonably practicable. It may be possible to argue this in some industry sectors, for example if the government ordered business closures, although generally insolvency is not regarded as a "special circumstance".

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