Just In London Firm Coronavirus: Taylor Wessing closes London HQ after employee tests positive

The story is behind a paywall at The Lawyer here..

Coronavirus: Taylor Wessing closes London HQ after employee tests positive

 

In the meantime it looks like TW are following the advice they published on their website on Wednesday

In February’s Law at Work article “Coronavirus: what employers need to know“, we outlined employers’ obligations towards their employees with the spread of coronavirus (COVID-19), and actions they should consider taking. The virus continues to spread across the world and at the time of writing the whole of Italy has been placed in lockdown for several weeks. The UK Government has predicted that up to a fifth of workers could be sick at the same time and it has issued Public Health England (PHE) strategy and guidance which is updated regularly. The Government is also considering legislation to address the possible consequences of widespread impact of the virus across the UK. Of assistance to employers and employees, ACAS has also published advice.

We explore the duties that employers have towards their employees and workers, and answer some of the common questions which employers are asking about the potential impact of the virus on their organisations and their people.

Duty of care and health and safety

Employers have a duty of care to protect the health, safety and welfare at work of their workforce, as well as others who may be affected by their operations such as contractors and the public so far as is reasonably practicable. This would include taking reasonable steps to control the possible spread of the coronavirus at sites under their control, and ensuring that any control measures are consistent with the government’s advice. Practical measures would include:

  • ensuring that employees, workers and contractors are familiar with the Government’s latest guidance on how the virus might spread, that they are aware of the symptoms and reminding staff about recommended hygiene measures to minimise the risk of infection
  • implementing a reporting procedure for individuals who have visited either Category 1 or Category 2 areas as set out by the Government and ensure that they self-isolate in accordance with government advice and not attend work
  • assess and take steps to control the possible risks of the virus for all staff, but particularly those who are pregnant or who have underlying health issues which might increase their vulnerability to the virus such as respiratory conditions, diabetes or cancer, or older workers. Steps might include making arrangements for remote working.

What are the circumstances in which self-isolation should occur?

The Government has published guidance here and here on what self-isolation means. Individuals must stay at home and not go to work, school, or public areas, or use public transport for a period of 14 days.  Currently, the people who are required to self-isolate are those:

  • who are identified as being a close contact of someone with coronavirus
  • awaiting a coronavirus test result, or
  • who have entered the UK from particular countries as specified by UK Government advice. As at 11 March self-isolation is required if returning from Iran, Italy and parts of China and South Korea; and only if an individual has symptoms, from some other named countries or regions.

Should employees be paid while self-isolating at home?

Individual is ill with coronavirus

If an individual is ill with the coronavirus, then they should be paid in accordance with their employer’s usual sickness absence and pay arrangements. Normally employees and workers taking time off work due to illness are able to claim up to £94.25 per week (currently) for up to 28 weeks, but only once they have been away from work for more than four consecutive days (including non-working ones). The Government has now indicated that Statutory Sick Pay (SSP) will be made available from the first day of absence when self-isolating for a coronavirus-related absence instead and that it will reimburse small employers with fewer than 250 employees any SSP they pay to employees, for the first 14 days of sickness due to coronavirus. However at the time of writing these changes have not come into force.

Individual goes into self-isolation due to medical advice

The Government has stated that if NHS 111 or a doctor advises an employee or worker to self-isolate, they should receive any SSP due to them (whether or not they are actually sick). On 26 February the Secretary of State for Health Matt Hancock MP said “Self-isolation on medical advice is considered sickness for employment purposes”, adding “That is a very important message for employers and those who can go home and self-isolate as if they were sick, because it is for medical reasons”.

However, if they are not actually unwell, then an employer is probably not obliged to pay contractual sick pay because the employee is unlikely to satisfy the terms of an organisation’s sickness policy. In this situation, both Acas and the CIPD recommend that it would be good practice for employers to pay contractual sick pay do so in this situation.  This would encourage the employee to follow advice to self-isolate and not attempt to return to work due to concerns about not being paid. But it is not legally required.

In both cases employees should let their employer know as soon as possible if they’re not able to go to work, the reason and how long they’re likely to be off for. If the medical advice from NHS 111 is for the employee to self-isolate for 14 days then the employee should receive an official notice to do so and the business should request this from the employee and keep the notice on record. However, the employer might need to be flexible if they require evidence from the employee or worker. For example, someone might not be able to provide a sick note or ‘fit note’ if they’ve been told to self-isolate for 14 days. The government has highlighted that employers should use their discretion to accept different forms of evidence as proof of sickness; this allows for the fact that individuals are being advised to avoid attending their GPs surgery where possible.

If an employee is not sick but the employer tells them not to come to work

If an employee is not sick but their employer tells them to self-isolate and not to attend work, perhaps due to the employer taking a more cautious approach, ACAS guidance states that they should get their usual pay because they are complying with an employer’s lawful and reasonable instructions. Employers may also be asking employees to work from home. This should be paid in the usual way. Another option, depending on the employment contract, might be to impose lay-off or short time working provisions (see below).

If an employee needs time off work to look after someone e.g. due to school closures, others in self-isolation

We have already had instances of schools in the UK being closed for coronavirus related reasons and the media have reported widespread closures in Italy and elsewhere. Many individuals have been placed in self-isolation, and in the coming weeks dependants (both old and young) may need looking after if they are not in school, or if they fall sick, or their carers do. Employees are entitled to time off work to help someone who depends on them in an unexpected event or emergency. There’s no statutory right to pay for this time off, but some employers might offer pay depending on the contract or workplace policy. The amount of time off an employee takes to look after someone must be reasonable for the situation. For example, they might take 2 days off to start with, and if more time is needed, they can book holiday, or take unpaid parental leave (of up to 4 weeks per year per child). Alternatively, an employee may ask to work from home. Whether an employer agrees to such arrangements will depend on their role and the nature of their caring responsibilities at home.

If an employee is not unwell, but chooses to self-isolate

Some individuals may not want to go into work out of fear of catching the coronavirus such as pregnant women or those with compromised immunity, those who work in a higher risk environment or employees in the groups identified by the WHO with a higher risk of developing severe COVID-19. Employers should listen to their concerns about the risk of infection. In such genuine cases employers must try to resolve these concerns to protect the health and safety of their staff and take reasonable steps to provide a safe working environment. If an employee has a disability which results in a higher risk of their being adversely affected then an employer may have a legal duty under the Equality Act 2010 to make reasonable adjustments to the employee’s working arrangements. Solutions might be to offer the ability to work from home (if work permits it), or if an employee still does not want to go in, to arrange some time off as holiday or unpaid leave, although the ACAS guidance says that the employer does not need to agree to this.

Employees may also have genuine anxiety caused by the coronavirus outbreak or may express concerns over hygiene practices by other employees or within the organisation. In turn this may result in an employee becoming ill and being entitled to sick pay.

Where an employee is not sick and refuses to attend work, an employer could consider taking disciplinary action. Employers should remain sensitive to the situation as it may develop over the coming weeks.

Pay related benefits

The level of pay an individual receives is likely to have an impact on any pay related benefits they are entitled to – for example, pay-related pension contributions, though particular terms may apply in relation to any period of absence or sickness. Specialist advice should be taken about the correct treatment of these benefits in these circumstances.

Can employers lay off employees as a temporary measure?

Businesses that are experiencing a downturn in business as a result of the coronavirus may seek to reduce their staff numbers, or the hours that they work. As a temporary solution to no or less work, while an employer waits for an upturn in work, it may have the right to “lay off” staff where employees’ employment contracts or collective agreements contain such terms. These provide employers with a contractual right to send people home (for no pay) for a short period of time, usually as a way of avoiding redundancies. They may be entitled to a statutory guarantee payment from the employer. Alternatively and where there is an express or implied contractual right to do so, an employer may have the right to put employees on “short–time” working.

But relying on these provisions requires careful handling and we recommend employers have specific advice on how to carry out such a course of action.

If any employees affected are sponsored visa holders any decision to lay them off or require short-time working will need to be reported to the Home Office within 10 working days and may affect their visa status.

Should we restrict staff work-related or personal travel?

As of 11 March 2020, the UK Foreign and Commonwealth Office (FCO) is currently advising against all travel to Hubei Province, in China, various cities in South Korea and against all but essential travel to the rest of mainland China and to Italy. The FCO also states that if individuals are in China and able to leave, they should do so. Meetings with those located in those areas should be conducted remotely via Skype or similar.

Employers can also require employees inform them of any personal travel plans to any affected regions. They could decide not to authorise a holiday request or issue a counter-notice (under the Working Time Regulations 1998) to prevent holiday or even require that it be taken (away from a risk area). Certainly they can remind staff of Government guidance about travel to particular regions and iterate that any Government guidance as to self-isolation must be adhered to on their return, possibly without pay.

Specific advice should be taken in such circumstances to ensure that employees could not claim breach of contract or constructive unfair dismissal.

Does the employer have to tell its workforce if a colleague has been identified as suffering from coronavirus?

Consider both the data privacy rights of the individual as personal medical information is sensitive personal data, and the health and safety obligations which the employer has towards all its employees. Before notifying other members of staff, consider whether the express consent of the affected person should first be sought. If this is not given then it may still be necessary to notify other staff, albeit on an anonymous basis. How this information is shared will depend on the size and nature of the workforce. Employees will expect transparency from the employer, and procedures to be put in place to protect them from possible infection. Information sharing is part of this. On a practical level, such news may well leak out at some point anyway.

Immigration and visa Holders

Sponsored visa holding employees may be impacted by restrictions on travel which affect their residence in the UK or closure of Home Office visa sites which prevent them from extending their visa. The Home Office has a coronavirus information helpline to give advice to employers and visa holders. As each visa holder’s situation is unique employers should take specific advice on how to support them.

What’s the position with contractors?

Independent contractors are not entitled to receive sick pay, so may be less likely to self-isolate if they have come into contact with high-risk persons for fear of losing income. Organisations should ensure that contractors who visit their premises are aware of good hygiene practices which have been put in place and other health and safety measures.

Complying with health duties towards contractors will not change their status towards being “workers” or “employees”. But paying them company sick pay might, so take advice if you wish to do this even if the Government enables SSP to be provided for contractors.

If businesses no longer require the services of independent contractors, perhaps due to a slowdown in business, they should follow the usual termination provisions in their contracts of engagement.

Discrimination and harassment

It was recently reported in the media that some British Chinese people had suffered racist abuse linked to COVID-19. If such treatment took place at work, this would be a disciplinary matter for an individual employee but employers can also be liable for harassment or discrimination by their employees towards other employees, unless they have taken reasonable steps to prevent such conduct. This would include having equalities policies in place, giving appropriate training on those policies and making sure that inappropriate behaviour is dealt with effectively.

Steps that ACAS advise as good practice for employers and other measures to consider now

In line with the ACAS advice it is good practice for employers to:

  • keep everyone updated on actions being taken to reduce risks of exposure in the workplace
  • make sure everyone’s contact numbers and emergency contact details are up to date
  • make sure managers know how to spot symptoms of coronavirus and are clear on any relevant processes such as sickness reporting or sick pay
  • make sure there are clean places to wash hands with hot water and soap, and encourage everyone to wash their hands regularly
  • give out hand sanitisers and tissues to staff, and encourage them to use them
  • consider if protective masks might help for people working in particularly vulnerable situations
  • consider if any travel planned to affected areas is essential.

 

Looking forward

In addition employers should consider other measures to adopt now in preparation if further action is required such as:

  • putting in place a team responsible for developing and operating any necessary contingency plan
  • considering their plans for business continuity in the event of widespread employee absences due to coronavirus
  • considering lay-off or short time working and potential redundancy planning
  • reviewing existing sickness policies and procedures and contracts of employment e.g. for mobility clauses, or the right to be given different work
  • ensuring that arrangements are in place for homeworking and carry out risk assessments, ensuring that employees have remote access to office IT systems and that the systems can cope with increased homeworking
  • ensure GDPR is observed in homeworking arrangements and that employers have the right cybersecurity protections
  • for regulated industries, ensure that homeworking plans meet regulatory requirements
  • assess long-term changes in attitudes and work governance arising for a sustained period of homeworking.

Given the widespread media coverage, communication with staff is also important, explaining what they are doing to protect staff against the risk of infection and how employees can protect themselves too. Employers’ approach to the payment of sick pay, or normal pay, or to those who are prevented from working will be remembered, either positively or negatively.

The situation in the UK is changing regularly, and the Government has indicated it will bring in legislation later this month to deal with particular employment situations. Organisations should ensure that they regularly check the government’s guidance for employers and businesses, the ACAS guidance for employers to help protect the health and safety of their employees, and from Public Health England.

https://united-kingdom.taylorwessing.com/en/insights/coronavirus-how-should-we-now-be-preparing