Coronavirus News: FAQs for Employees
The current advice is for everyone to avoid all unnecessary contact with other people. Work from home if you can.
If working from home is feasible, employers should try to facilitate it. If working from home is not feasible, employees should continue to make every effort to attend their workplace while minimising close contact with others.
What steps should employers take?
- Employers should ensure that they take steps, such as increasing the frequency of cleaning or providing disinfecting wipes and gels, to maintain high standards of cleanliness and hygiene during this time, and employees should assist their employers in achieving that by keeping their personal and shared areas clean and regularly washing their hands.
If you are required to attend work as you are performing one of the ‘key worker’ roles, ensure that you make the adaptations you need to allow you to follow government guidelines. Consider moving where you would usually work to allow the correct social distancing, consider seeking a change to your working hours to allow you to be travelling to work outside of peak times.
Legally, employers have a duty to take reasonable care of the health and safety of its employees, as well as a duty to take reasonable steps to provide a safe workplace. This duty is of vital importance during this pandemic.
I don’t want to work from home. Can my employer force me to?
We understand that not everybody’s home may not be suitable for homeworking. Employees have a duty to obey lawful and reasonable orders and a duty to be adaptable. These duties are not absolute and generally will be subject to the reasonableness of the request, which can be impacted by the reality of the business reasons for requiring homeworking, which will vary from business to business.
- You may find that homeworking is a requirement of your contract of employment, so it would be a good idea to check your contract to see if it is specifically mentioned. You should also consider looking for a ‘place of work’ or ‘mobility’ clause, which might provide that your normal place of work includes any location within a reasonable area.
Given the severity of the situation faced by employers and employees alike, it is likely that a request made by reason of the pandemic would be reasonable if it ensures the operation and efficacy of the business. However, employers should not take for granted that they can simply do whatever it takes, and they should take care that they treat each individual case on its own merit.
Therefore, the answer is unfortunately: ‘it depends’. If you have been dismissed due to your refusal to work from home or if you have resigned in response to an unreasonable demand to work from home, please contact us so that we can investigate the possibility of an unfair dismissal claim.
If I start to exhibit symptoms of Coronavirus. Can I be sent home to self-isolate?
It is understandable, due to the duty to take reasonable care of the health and safety of its employees, that a business may wish to send an employee home to self-isolate if it believes they are at a high risk of having coronavirus. If your business permits homeworking, and the employee agrees to it, this would strike the best balance between protecting health and safety and avoiding any employment law risks.
If homeworking is not feasible, it may be that the employee is placed on suspension, unpaid leave or a furlough now being offered by the government unless there is some express provision in the employee’s contract which requires them to attend work in any circumstances. Suspending should be with pay. Employers are not obliged to provide work, but in all implied terms they are required to provide payment.
Dependant on the circumstances you may be treated as being on sick leave if you fall within the category of individuals who are being advised to self-isolate or exhibiting symptoms. In that scenario, subject to any contractual sick pay provisions, then you would likely only be entitled to statutory sick pay. Please see below for a more detailed consideration of statutory sick pay.
Can a business conduct temperature checks on its employees?
- An employer cannot require an employee to submit to having their temperature taken without their consent.
Doing so could be a breach of contract which would allow you to claim constructive unfair dismissal for the breakdown of the relationship and breach of contract. However, if you consent this can be possible so long as the temperature checks are conducted on all employees following respectful guidelines. Only testing certain groups of employees, for example those perceived to be at higher risk of contracting coronavirus, could lead to a discrimination claim as you may suffer a detriment over those who are not disabled for example.
I am in one of the categories the government has “strongly advised” to work from home, but it is not possible for me to do that. What protections do I have?
Most people who fall into the category of those “strongly advised” to rigorously follow the social distancing advice will also find that they have a protected characteristic: age, disability or pregnancy and maternity.
Ultimately, and until the government legally requires all people to stay at home even those categorised as ‘key workers’ it is the employer or employee’s choice to continue going to work. If you are unable to carry out your role from home and your employer therefore requires you to remain at home, in which case it is likely you would only receive statutory sick pay, your employer would potentially be discriminating against you because of or because of a reason connected to your protected characteristic as contained in the Equality Act 2010.
Can I use annual leave to cover my sick leave?
Yes, you are entitled to take annual leave to cover an advised self-isolation period, which would avoid you only being paid statutory sick pay. However, the normal rules on taking annual leave will continue to apply. Each business’s annual leave policy is likely to vary, but the Working Time Regulations 1998 (“the WTR”) state that you must give notice of at least twice the period leave that you are requesting. If you wanted your annual leave to cover the full 14-day period, you would need to give your employer 28 days’ notice. Of course, your employer could choose to waive its entitlement to that notice period at its discretion.
Can a business cancel its employee’s annual leave?
- Yes, the WTR allow employers to order its employees not to take holiday on specified dates by giving as many days’ notice as the period of holiday to which the notice relates. For example, if an employee had booked annual leave from 15th April to 30th April, your business would need to give you the time back.
An employer who unreasonably cancels or disrupts holiday plans may cause you to resign, which may lead to claims of constructive unfair dismissal.
I am self-isolating following public health guidance, but I had booked annual leave for some of the self-isolation period. Can I reschedule that annual leave?
The law is not clear on this area, but generally the answer is yes, if you are self-isolating because you have Covid-19 (or symptoms of it). Your employer should reinstate the holiday entitlement for the affected days or allow it to be carried over to the next leave year if the sickness absence continues to the end of the holiday year.
I am self-isolating. Will I still be paid?
In most cases, an employee who is either in quarantine as a result of having Covid-19 or self-isolating following government guidance, i.e. are in the ‘vulnerable’ group, will be treated as incapable for work as for statutory sick pay (“SSP”) purposes.
It is currently unclear whether or not all members of the public who choose to self-isolate, i.e. those without symptoms, not in the vulnerable category or not living with someone with symptoms, will be entitled to SSP.
It is further unclear whether or not those in the vulnerable category will necessarily receive SSP, as the guidance does not advise full isolation. However, this would seem to run counter to the government’s intention in revising the SSP regulations to account for coronavirus.
Will I still get paid if my workplace is ordered or chooses to close?
- On 20th March 2020, the government announced the Coronavirus Job Retention Scheme, which is designed to enable employees to stay employed and continue to receive most of their salary. All UK businesses are eligible for this scheme.
In order to access the scheme, your employer will need to designate you as a ‘furloughed worker’ and notify you of that change. If designating you as a furloughed worker will require an amendment to your contract of employment, your employer should obtain your consent to make that change to your contract. Employers do not have an automatic right to lay off their staff or designate them as furloughed workers.
Provided you have been designated as a ‘furloughed worker’, which means you will be kept on the payroll and remain an employee but will not be able to work whatsoever, your employer will be able to submit information to HMRC through an online portal about its furloughed employees. This portal has not yet been set up, so we are awaiting further details about the information required by HMRC.
When the system has been set up by HMRC, they will reimburse 80% of the furloughed workers’ wage costs, up to a cap of £2,500 per month. For example, if your monthly wage was £1,500, your employer would be reimbursed £1,200. It will be for each employer to decide whether it wishes to make up the difference of 20%.
This has been identified to apply to those who are self-employed also now providing much relief to many.
I believe I have been unfairly selected for ‘furlough leave’ or unpaid/short time working. What can I do?
An employer must consider carefully those to place on furlough leave and obtain your consent. It is not possible to unilaterally make such a decision; this would be unlawful and lead to a claim of constructive dismissal as it is highly unlikely that any contracts of employment will have a provision for such leave.
If your employer appears to have used a method to identify those possible for furlough leave based upon one of the protected characteristics contained with the Equality Act 2010, this would be discriminatory. For example, if only those with children despite their ability to continue in their role are only selected, this could amount to less favourable treatment and an act of discrimination.
In these uncertain times, it may be that rash decisions are made, stay vigilant.
I am being forced to go into work, despite the lockdown where I believe my health and safety is at risk. What rights do I have?
If you believe your health and safety is being compromised or has the possibility to be compromised, you must raise your concerns with the appropriate person in your work that deals with health and safety (if there is no one, a manager will be sufficient) and highlight your concerns. If you receive a detriment as a result of being forced to work after this disclosure it may be possible to claim protection under whistle-blowing provisions. It is important to note that the detriment cannot be ‘doing nothing’ and that the concern cannot be only relevant to you as an individual, it must be a matter of public interest.
Everybody's set of employment circumstances and types of employer contract will be different. If you want to be sure of the current status as it affects your situation, please contact one of our employment team members here. We're here to support you with employment advice at this time.
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