Public Health England announced this morning that the widespread transmission of coronavirus in the UK is now “highly likely”. So how should an employer deal with the risks of coronavirus?
Does an employer have the right to stop employees coming to work?
One of an employer’s fundamental duties is to protect the health and safety of its employees in the workplace. If an employee becomes infected with coronavirus, or there is a chance they have been infected (for example if they have returned from an infected area abroad), the employer would have a duty to take reasonable steps to protect its employees. Asking the affected employee to stay at home may be a reasonable step to prevent the virus spreading to other employees. Employers can find more information on countries where there is a risk of infection from the government website and Public Health England.
If an employer is going to approach an employee to ask them not to come to work, this must be handled sensitively, particularly if they are not showing any symptoms. The employee may feel put out by being asked not to come to work, so the employer should explain that this is only a precautionary measure, and ensure that the employee is not made to feel like a pariah. The employee can also point to the implied duty of trust and confidence which requires that an employer treats the employee fairly, provides him/her with work and pays them for the work they do. The employee may feel they are being treated badly, by being denied an opportunity of working and being paid as they would if they were at work, and this could lead to a claim for a breach of trust and confidence against the employer.
It is also important that any employees are treated consistently.
Is there a risk that the employer will breach the employment contract by telling the employee to stay at home?
It would be unusual for the employee’s contract or the employee handbook to give the employer the express right to stop the employee coming to work in the event of a the widespread transmission of a virus (though the contract should be consulted to make sure). As set out above, the employee does have an implied right to attend work and be paid.
Does an employee who is asked to stay at home as a precaution need to be paid?
If an employee is available to work but is instructed by their employer to stay at home as a precautionary measure to prevent the spread of the virus, there would be a breach of contract if the employer does not pay them their normal rate of pay. In the event the employee has been advised by their GP to self-isolate, they may seek their employer’s express instructions as to whether they should report for work, and inevitably an employer being aware of its responsibility for health and safety at work would instruct the employee to remain at home.
In these circumstances, where the employee is available to work (and is not infected) and is instructed not to attend work, the employer would be advised to pay the employee their normal rate of pay rather than statutory sick pay (SSP).
Remember that SSP is payable when a sickness absence is as a result of the employee being incapable of working by reason of some specific disease. If the employee is being told to self isolate as a precaution, then they are not incapable of work due to having the virus – they are being told to stay at home to prevent the possible spread of the virus. Therefore, the statutory requirements for paying SSP would not be met, and the employer would be advised to pay full pay to prevent a breach of contract.
Whilst an employer may be reticent to pay an employee for staying at home, it is complying with its health and safety responsibilities and that making these payments is likely to be far less detrimental to the business than allowing an employee to come to work and potentially infecting the entire workforce. To try and minimise the effect on productivity, the employer could ask the employee to work remotely if the nature of their role allowed it.
The risks from a rapid spread of a virus or infection may also remind employers that they need to periodically review their policies and handbook. A medical suspension provision may be appropriate for some businesses so that in the event of rapidly spreading infections, it can instruct employees in appropriate circumstances to remain at home under this provision, and also to undertake tests before returning to the workplace.
Does an employee who is infected with coronavirus still need to be paid?
If an employee becomes infected, and therefore does not come in to work, then this would be treated as any sickness absence would be. They would only be entitled to SSP, unless they had a contractual right to enhanced sick pay.
The employer may want to make allowances to account for the fact the employee may be isolated at home and unable to visit their GP. It would be reasonable in those circumstances for the employer to waive the requirement for the employee to provide a sick note from their doctor in order to receive SSP.
What if the employer wants an employee to come to work, but the employee refuses because they are scared of contracting coronavirus?
If the employer is satisfied there is no threat to employees’ health, then employees still need to attend work as usual. If an employee does not want to come to work because they fear contracting coronavirus, the employer could agree to their absence being taken as holiday, or as unpaid absence. Alternatively, the employee could be allowed to work from home if this was practical. But there is no obligation on the employer to allow any of these options, particularly if the employer considers, on a reasonable risk assessment, that the risks of infection are not realistic. In these circumstances, if the employer insists that the employee comes to work, but they refuse, then this would be an unauthorised absence which could lead to disciplinary action in the usual way.