05.03.2020

Since our last update, the number of reported cases of coronavirus has significantly increased.  At the time of publication (5 March), 16,659 people have been tested in the UK, of which at least 85 have been confirmed as positive.  The Department of Health and Social Care provides daily updates, and the government continues to publish guidance (including its coronavirus action plan).  

Over recent days, the government has announced that it will introduce emergency legislation to temporarily enable statutory sick pay to be payable from the first day of absence from work, not the fourth, to minimise the risk of infection spreading.  Covid-19 has also been registered as a notifiable disease in England and Scotland. The UK Chief Medical Officer has increased the risk to the UK from low to moderate.  

Here we look at the government’s latest advice on self-isolation and respond to some frequently asked questions from our members.  To read our previous updates on coronavirus see here and here. 

Latest government advice on who should self-isolate

Public Health England (PHE) guidance states that the following groups of people should self-isolate:

  • People who are waiting for a Covid-19 test result
  • Individuals who have been identified as being a close contact of someone with coronavirus
  • Returning travellers from Hubei province in China, Iran, lockdown areas in northern Italy and special care zones in South Korea, even if they do not have symptoms
  • Those who have returned from specified other countries/regions, including other parts of China, South Korea, Hong Kong, Japan, Macau, Malaysia, Singapore, Taiwan, Thailand, Cambodia, Laos, Myanmar, Vietnam and Northern Italy if they have a cough, high temperature or shortness of breath (even if their symptoms are mild).

PHE guidance also warns that over the coming days or weeks, members of the general public with symptoms of coronavirus (such as a cough or fever) may be asked to self-isolate at home for up to 14 days to avoid passing the virus on to people in the community or at work.

If an individual suspects they may have contracted coronavirus, government advice is not to go to a GP surgery, pharmacy or hospital – but instead to use the 111 online coronavirus service to find out what to do next.

Frequently asked questions 

1) If employees self-isolate, are they entitled to be paid?

Where an employee self-isolates because they have been instructed to do so by either their doctor or NHS 111, they will be entitled to receive statutory sick pay (and, if relevant, contractual sick pay), as they will have been deemed to be incapable of work. They will likely be given written guidance or advice from NHS 111 in these circumstances (which may vary in consistency).
 
If, however, an employee chooses to self-isolate without either symptoms or without following an instruction from a doctor or NHS 111 requiring them to do so, they will not be entitled to any sick pay (see further guidance in question 2 below).
 

2) What if an employee does not have symptoms, but is choosing to stay away from work because they are worried about getting coronavirus?

Employers may face a scenario where an employee shows no symptoms of coronavirus and is not in one of the groups that PHE has advised to self-isolate (see above), but is choosing to stay away from work because they are worried about being infected.  This might be because, for example, an employee is worried about travelling on public transport to work, or dealing with members of the public in their role, or if one of their colleagues has recently returned from a high risk area albeit displaying no symptoms. 

Where an employee has genuine concerns, the employer should listen to the employee’s concerns and, where possible, try to accommodate them.  Employers have a duty to take reasonable steps to provide a safe working environment.  In particular, employers should be mindful of anyone who is at higher risk of developing severe coronavirus and/or may have compromised immunity such as:

  • those aged 60 or over;
  • those who have an underlying condition (such as a respiratory condition, cardiovascular disease or diabetes); and
  • pregnant women.

Employers also have an obligation to make reasonable adjustments under the Equality Act 2010 where someone has a disability.

Often the simplest solution where an employee is refusing to come to work out of concern of contracting the virus will be to allow the employee to work from home receiving their normal pay, if this is possible.  Alternatively, the employer may agree to the employee taking paid annual leave, or unpaid leave – if these options are realistic taking into account the employee’s role and the operational needs of the business.  

If, however, an employee is self-isolating solely because they are scared of being infected (i.e. they have not received guidance from a doctor or NHS 111 to do so) generally they will not be entitled to any pay (see question 1 above).  In some circumstances, it may be appropriate for an employer to consider whether an employee’s refusal to come into work in these circumstances could constitute employee misconduct. 

Keeping abreast of evolving government advice on coronavirus is important for any employer who is deciding what approach to take in relation to an employee who is not willing to come to work, as the guidance may change.

3) What if an employee ignores coronavirus-related hygiene rules?

If an employer has instructed its employees to follow certain rules to contain the virus and an employee fails to comply with those instructions, the employer will be entitled to take disciplinary action. 

4) Can an employer restrict an employee’s personal travel?

Employment contracts do not generally include an express right for an employer to restrict an employee’s personal travel plans.  But it may be reasonable for the employer to do this where a restriction can be justified by the employer’s duty to protect the health of safety of its workforce, or those with whom the workforce comes into contact.

The proposed destination of personal travel will be important when deciding whether a restriction is justified.  For example, it will be easier to justify restricting employees from travelling to countries which are categorised by the Foreign and Commonwealth Office as being higher risk.  Certain organisations, such as schools and hospitals, may find it easier to justify a restriction than others.

(We explored in our previous update some legal issues relating to work-related travel, including sending staff to countries with a high incidence of coronavirus.)

5) What if an employee’s child’s school has closed due to coronavirus, or an employee needs to look after a child who has (or may have) the virus?

Employees have a statutory right to a reasonable amount of unpaid time off to deal with an emergency involving a dependent.  “Dependent” includes a spouse, partner, child or parent, or a person who lives with the employee (but not a lodger).

So if an employee’s child’s school has closed, or an employee’s child is unwell, the employee could take emergency time off to care for the child.  The employee should inform their employer as soon as reasonably practicable of the reason for their absence and how long they expect to be away from work.  See question 5 of our previous article for further guidance.

6) What legal obligations should employers keep in mind when making decisions relating to coronavirus?

In addition to express and implied obligations in employment contracts, employers should be mindful of the following duties:

  • To protect the health, safety and welfare at work of the workforce and others who might be affected such as customers, suppliers and visitors (under the Health and Safety at Work Act 1974 as amended and related legislation).  There is also a common law obligation to take reasonable care of the health and safety of their workforce.
  • Not to discriminate against staff with protected characteristics, and to make reasonable adjustments for those with disabilities (under the Equality Act 2010).

7) A final thought for now: think about attendance management policies

In our first article on coronavirus we explored how employers could best prepare for a coronavirus outbreak, including possible adjustments to existing staff policies.

Attendance management policies require particular consideration, as these typically state that certain reviews will be carried out by HR/management if an employee’s levels of absence exceed set thresholds.  A trigger system presents difficulties in the context of coronavirus, as strict trigger points may discourage employees who have developed (or are at risk of developing) coronavirus from staying away from work. 

With this in mind, we suggest that employers may wish to make clear to employees that in most cases any period of absence for which they have received a written coronavirus notice from a doctor or NHS 111 covering the absence will not be taken into account when determining whether absence thresholds have been met.  This will be particularly relevant where an individual’s disability places them at a higher risk of contracting coronavirus.

How we can help

As the coronavirus situation develops, we will continue to keep you updated via the Make UK website. In addition, Make UK members who need HR or legal advice on a specific situation can contact their named adviser, or the Make UK Adviceline on 0333 202 2221.