Employer protection responsibilities
1. Has the government introduced any special measures in relation to employees?
Update 30 March: The government has introduced a job retention scheme to avoid redundancies and protect jobs. All employers in the UK will be eligible to participate in the scheme. HMRC will reimburse employers for 80% of wage costs, up to a cap of £2,500 per month. The workers covered by the scheme are those who have been "furloughed". More information on who is eligible, what the scheme covers and how it will work is available here and here.
Update 30 March: Workers who have not used all of their annual leave due to the pandemic will be allowed to carry over up to four weeks of unused annual leave for the next two years. This does not entitle employees to cancel holidays just because they cannot go abroad. It is instead aimed at employers who may have difficulties letting employees take holidays during the pandemic or use accrued holidays once business starts up again. However, employers will not be able to refuse requests to use this carried forward holiday without "good reason".
From 13 March, employees/workers eligible for SSP are entitled to pay from day one of their absence/self-quarantine, rather than only from day four under the normal rules, if the absence relates to COVID-19. The government will reimburse the cost of any SSP that small employers (those with fewer than 250 employees) pay to eligible employees for the first 14 days of sickness.
In each part of the UK, public authorities have the power to detain individuals who have the virus, or are suspected/at risk of having the virus, and restrict their activities.
The Coronavirus Act 2020 introduced a new form of statutory unpaid leave: emergency volunteering leave (EVL). Employees will be able to take a maximum of four weeks' EVL in any 16-week volunteering period. Their terms and conditions otherwise continue as normal; they have the right to return to work on the same terms afterwards. There is protection against detriment and dismissal for taking EVL.
To take EVL, an appropriate authority must certify the employee as an emergency volunteer. A compensation scheme will cover losses employees incur taking EVL. Certain employees are ineligible for EVL, for example if they work in the emergency services or their employer employs 10 or fewer employees.
2. What responsibilities do we have towards our employees?
As an employer, you have a duty of care to your employees in relation to health and safety and indeed towards other individuals, including workers/contractors and visitors to your premises. UK health and safety legislation requires all employers to assess and review risks and to maintain an emergency procedures policy, should there be an event that creates a "serious and imminent danger to persons at work". Employers must communicate this policy to employees and provide appropriate training. All employers must abide by the regulations on workplace closures (see Question 5) in order to meet their health and safety obligations.
Employees also have a responsibility under the legislation to take reasonable care not to endanger themselves or anyone who may be affected by their actions at work.
3. How do we deal with visitors to our premises?
Update 7 April: If your premises are still open, you should actively discourage any visits to them unless they are essential. Consider sending a questionnaire in advance to any expected visitors to your premises, covering close contact in the past 14 days with anyone exhibiting symptoms of the virus, or who has a cough, cold or fever (or if they have had such symptoms themselves in the past seven days). You should ask unexpected visitors to complete the same questionnaire, with a view to refusing entry to anyone who answers one of the questions positively.
For data protection reasons, you should destroy the completed questionnaires once you have made a decision on whether or not to allow visitors access to your premises. Please get in touch with your usual Dentons contact or Virginia Allen for a template questionnaire.
4. Is there a risk of employees bringing claims against the business?
If you do not take sufficient steps to safeguard employees' health (e.g. by not following the latest government guidance and/or failing to fulfil your duties in relation to employees' health and safety), there is a risk of an employee who contracts the virus during the course of their employment bringing a personal injury claim.
An employee may also be justified in refusing to attend work for such a health and safety reason. If their employer dismisses them or subjects them to a detriment, the employee would be able to bring a claim in a tribunal.
Failing to fulfil the particular duties you have towards a pregnant employee might lead to a claim of pregnancy discrimination.
You can minimise the risk of successful claims by monitoring and implementing government guidance and keeping your risk assessments up to date and under review.
5. Has the government introduced any limitations on people's mobility?
The UK government announced a partial lockdown on 23 March 2020.
The UK and Scottish governments have passed regulations requiring certain businesses and premises to close. This includes cafés, bars, restaurants, clothing shops, hotels, libraries, cinemas, gyms and places of worship.
The regulations contain a number of exceptions, including takeaways and delivery services, online retail services, postal services, supermarkets, pharmacies, banks and bicycle shops. These can remain open for the time being.
Those businesses/premises that are not on the "must close" list may also remain open for the time being. All employers must take steps to ensure they meet their health and safety obligations, which includes social distancing of two metres between any individuals on the premises where practicable. Where employees can work from home, they should do so.
Individuals may only go outside for food, required medical treatment, daily exercise locally once a day or essential work
6. How should we deal with international travel for work?
The government has made it clear that everyone should cancel all non-essential travel.
Pay for employees who are in self-quarantine or unable to perform their duties
7. If employees have to self-quarantine for 14 days, do we have to pay them? Are they entitled to statutory sick pay?
Statutory sick pay (SSP) is now payable to all those who self-isolate in line with government guidance. The government guidance strongly suggests that employers are lenient about the requirement for evidence of sickness after seven days' absence, where a medical professional has instructed an individual to self-quarantine.
The definition of "employee" which applies in the relevant regulations relating to SSP is much wider than in some contexts, so workers will also qualify if their earnings are liable for class 1 National Insurance contributions.
8. Should we make special allowances for an employee who cares for an elderly relative or lives with someone whose immune system is compromised e.g. due to cancer treatment?
Update 7 April: Employers may furlough employees (see Question 1) who are shielding because they are, or someone they live with is, in one of the groups who are particularly vulnerable.
9. What if an employee has to care for a child because schools have closed?
Now schools have closed until further notice, many employees with children are finding it difficult or impossible to find adequate childcare. Depending on the age of the children, working from home may not be a practical solution to this problem. Flexibility will be key – consider whether the employee could work outside normal working hours if he/she needs to look after their child/ren during working hours.
If an employee simply is not able to work due to caring responsibilities that arose because of the coronavirus pandemic, you may furlough them under the government's job retention scheme (see Question 1).
10. Can an employee refuse to come to work/travel for work because he/she is worried about COVID-19?
If an employee does not want to come into work because of genuine fears relating to COVID-19, you should take these seriously. ACAS guidance states that, where possible, you should allow the employee to work remotely or to take time off work as holiday or unpaid leave. You should also remind employees of any support systems already in place, such as an employee assistance programme.
If an employee unreasonably refuses to attend work, and cannot work from home, you may consider disciplinary action. Ensure you deal with similar cases consistently, as with any disciplinary matter, but take into account the particular individual's circumstances and reasons for refusing to attend. Note that a reasonable fear about a health and safety risk may entitle an employee to refuse to come to work.
Employees diagnosed with COVID-19
11. What do we do if someone displays symptoms while at work?
The government and ACAS have given detailed guidance on this. You should send the individual home and advise them to follow the government's self-isolation advice.
12. Do we have to shut our offices/workplace if someone displays symptoms?
Closing your workplace, or sending staff home, is not required at this stage unless government policy changes. Depending on the location of your workplace, you should contact Public Health England, Public Health Scotland or Public Health Wales for advice.
Employee data privacy
13. Should we tell the rest of the workforce if an employee is diagnosed with COVID-19?
You would not be obliged to inform the rest of your staff that a colleague has been diagnosed with the virus, but it would be good practice to do so for reasons of transparency. However, personal health information is special category data under GDPR, so you must take care to preserve the individual's privacy as much as possible and not to name them directly. In reality, employees will likely be able to identify the individual, so you should remind employees that they must not speak to the media and, in particular, should not name anyone who may have the virus. Please see our separate bulletin "COVID-19: Data Protection Checklist" for a fuller analysis.
Adjustment to employment terms in the event of operational difficulties
14. What can we do if COVID-19 causes a downturn in work for our business or leads to supply chain issues?
Update 24 March: If the situation worsens and you have to close your business for a time, or reduce usual output levels due to supply chain shortages or delays, you will still be obliged to pay employees. However, the government's job retention scheme (see Question 1 above) should help to alleviate some of these pressures.
If there is a risk that you will need to furlough employees, or reduce their hours, it is important you discuss this with employees as early as possible.
The government has announced a number of measures to support organisations with the unprecedented challenges caused by the pandemic. See our blog post for a summary of the help available.