Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

Coronavirus (COVID-19) – employment issues update

Further to our Coronavirus Employment Law Issues article issued recently, we now have the latest information and guidance concerning the employment law issues with Coronavirus (COVID-19).

Self-isolation for coronavirus and Statutory Sick Pay

The government have announced this morning that an employee who self-isolates will be entitled to Statutory Sick Pay (SSP). Whilst this is correct if an employee is advised to self-isolate by a doctor or other medical professional, the situation is less clear for an employee who does so voluntarily as a result of contact with an infected person or returning from a high risk area (but without having any symptoms themselves). In this situation, it is likely that an employee would not be entitled to SSP. However, as we advised previously, if an employee will not be paid whilst self-isolating, there is a risk that they will attend the workplace in order to be paid and risk spreading the virus to other staff and it therefore is worth considering paying them anyway to avoid this.

This also raises the question of what constitutes an employee for SSP purposes. It is wider than the definition of employee in respect of most employment law rights as it includes office holders (for example, police officers, judges and some company directors). The easiest way to identify whether an individual may qualify as an employee is by determining if they are liable to pay Class 1 National Insurance contributions, as this would make them an employee in respect of SSP.

Leave to care for dependants due to coronavirus

As announcements are made of schools closing, employers will need to consider how they deal with carers taking time off to care for dependants. This could include using annual leave, unpaid leave or allowing the employee to work flexibly at home (for example, working in the evening or early morning). If the employer has a policy for dealing with emergency leave for dependants, this may be the starting point. Employees have a statutory right to a reasonable amount of unpaid leave to care for dependants which would apply in the situation.

Discrimination issues surrounding coronavirus

Employers should be careful to avoid discriminating against employees on the basis of their nationality, or allowing employees to discriminate against other employees, for example because they are Chinese or from certain parts of Italy.

It is important to ensure that when making decisions regarding any type of leave, the employer is consistent in its treatment of its employees. Less favourable treatment towards some employees may risk a claim for discrimination against the employer.

Supply chain disruptions due to coronavirus

Companies will also need to consider any issues in their supply chain as they may have obligations for those outside the company itself. Some examples could be in respect of a company’s own sustainability policy or commitment to Fair Trade. Further, under the Health and Safety at Work etc. Act 1974, the employer has a duty to conduct business, as far as reasonably practicable, in a way which does not expose those affected by the business to risks to their health and safety, although this would not apply to non-employees outside the UK.

An aspect which does need to be considered for the global supply chain is the requirement under the Modern Slavery Act 2015 for large companies to produce a slavery and human trafficking statement setting out what steps the company has taken each year to ensure modern slavery, which includes forced labour, is not happening in its supply chain. This document is public and is likely to add to the significant adverse publicity for a company whose insistence on the availability of its products results in workers in high risk areas being compelled to work, thereby increasing the rate of infection of coronavirus in those workers.

Enforcement of hygiene rules for coronavirus

Employers should be issuing the Public Health England advice to employees regarding hygiene, such as handwashing and coughing or sneezing into a tissue and disposing of the tissue. Where employees are not doing so, this could be failure to obey a reasonable order and could be dealt with under the employer’s disciplinary policy.


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