Coronavirus has made its way into the UK, first in Brighton and Hove and now, more worryingly, to all four countries of the United Kingdom. For employees and employers alike, this raises concerns not only of what to do, but what should be expected. Our expert employment solicitors in Brighton and Hove examine this issue in more detail.

The first point to consider is whether an employer can ask its employee, who it suspects has the coronavirus, to stay away from work, and the second would be what are the entitlements to pay whist suspended.

What are an employer’s duties to protect the health and safety of employees?

In the event of a pandemic like the coronavirus, our employment solicitors would advise employers that they have a duty to protect the health and safety of all their employees.

During the coronavirus pandemic the employer must keep both itself and its employees fully informed about health risks. Britton and Time’s employment solicitors would advise action is taken that includes:

  • Using a trustworthy and efficient system to communicate with all employees. Employers must ensure that:
    • an emergency communication system is in place in case usual communication cannot be accessed or used. Sometimes emails might be down and therefore an employer must be able to telephone its employees instead.
    • contact data such as work mobiles, email (both personal and work), telephone (private mobile numbers) and home address should be stored securely in a system and reviewed and updated yearly (as a minimum).
  • Installing and using a system to keep up to date on government advice on the coronavirus as it develops. Sometimes this can mean using the services of a third party such as a risk management company or a firm of solicitors.

It is important that employers also take steps to ensure that there are good levels of hygiene in the workplace.

What else can an employer do during the coronavirus outbreak?

Usual working practices should not pose unjustified risks to employees. Britton and Time’s employment solicitors would further advise action that could include the following:

  • Checking procedures of hygiene to provide appropriate protection to its employees. In the case of the coronavirus pandemic, employees need to be reminded to wash their hands regularly with soap for at least 20 seconds and to carry tissues or sanitising gel.
  • Training and communications should be deployed to staff that addresses good practices and boosts compliance beyond the recommended guidance.
  • Cleaning staff and other employees should clean hard surfaces in the workplace regularly including phones and door handles. The Health and Safety Executive’s publication, Pandemic Flu: Workplace Guidance can be helpful to most employers and employees.
  • Instruct a law firm that specialises in employment law, such as Britton and Time Solicitors, to conduct a cost/reward analysis for offering preventative products on the market to the workforce and measure their effectiveness on the coronavirus.
  • To communicate the benefits of the preventative measures (such as hand washing for 20 seconds) to its employees and their families. We would also recommend alternatives to employees who may be unable to use or take up the recommendation (for example, those who have allergies or sensitivities to certain products) with the aim to increase uptake of other preventative measures and reduce overall risk.
  • To conduct a risk assessment aimed to identify high risk groups, such as those who are in regular face to face contact.

During the coronavirus pandemic, employers are likely to balance the need to keep genuinely ill employees away from work and the need to manage and prevent ingenuine absence.

In these circumstances we would advise the serious need to prevent the spread of the coronavirus outweighs the need to detect the fakers.

Do employers have the right to suspend an employee?

Once there is an identified case of coronavirus in an employee, or an employee is suspected to have been exposed to the coronavirus, our employment solicitors would advise on suspending the employee. It should be understandable and acceptable to an employee that this is the case when considering the employer’s duty to protect the health and safety of its workforce.

What is the legal position?

Employers will need to consider and take advice as to whether there is an expressed right to require an employee to stay at home during the coronavirus pandemic.

On the other hand, the question might be, ‘is there an expressed or implied right for the employee to attend work in under these circumstances?’

I have never seen an expressed term that enables an employee to a right to attend work regardless of circumstances, and there is no general implied term in law that would require an employer to provide work so long as the employer continues to pay the employee’s salary.

I therefore would find it unlikely to be a breach of contract or an implied duty to require an employee to stay at home during the coronavirus. The coronavirus is a reasonable and non-discriminatory grounds for concern so long as the employer deals with the matter appropriately, proportionately and sensitively.

However, our employment solicitors would advise that a failure to deal with suspension appropriately, proportionately and sensitively could amount to a breach of the implied duty of mutual trust and confidence.

What is an employee’s right to pay?

Consideration would need to be given to the written terms in the relevant contract of employment.

If the employee is not unfit to work, then it is unlikely that they are entitled to statutory sick pay. Statutory sick pay, defines a day of incapacity as:

“A day on which the employee concerned is, or is deemed in accordance with regulations to be, incapable by reason of some specific disease or bodily or mental disablement of doing work which he can reasonably be expected to do under that contract”.

When an employee is not actually incapable of working, at the time they are suspended, then their absence is not likely to be sickness absence, which means they are not able to claim statutory sick pay.

The position would be different it the employee was diagnosed with coronavirus or became too unwell to work.

If the employer is suspending the employee on health and safety grounds due to the risk of infection (or infecting other), then the employee will normally have the right to continue to receive their full pay. This would only be different if there was a contractual provision in the employee’s contract to the contrary.

As set out above, an employer is not obliged to provide the employee with work, provided it continues to pay the full salary. The employer could ask the employee to work from home unless they are too ill to work at all.

The duty to pay employees, as above, means there is an implied term that where an employee is able and willing to perform their duties in accordance with their contract, the employer has an requirement to pay that employee’s salary. The only exception is if there is a contractual right not to pay.

At Britton and Time our employment solicitors specialise in such employment matters and the general employment legal framework. If you need advice on any of the matters raised in this article, then please contact one of our solicitors in Brighton and Hove by clicking here or calling now on 01273726951.

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