The World Health Organisation ("WHO") has declared the new coronavirus as a global emergency and reported cases have continued to rise. It is only the sixth such declaration made by the WHO.
Employers are now having to respond rapidly and plan for a potential pandemic. Even if the spread is more localised, there are a number of steps which employees should be taking and a number of questions that employers are likely to want to consider when formulating plans for dealing with the situation.
Key points covered in this summary include:
- The legal framework: UK employer obligations.
- Sources of specific advice for employers.
- Next steps for employers: Review; Communicate; Update and pay particular attention to employee travel arrangements.
- Common questions.
- Disciplinary action and dismissal guidance.
The legal framework
In the UK, employers are subject to a framework of obligations, partly contained in common law and partly through statute and regulation. This is further complicated by obligations deriving from Europe.
In short however the key obligations are:
- The Health and Safety at Work Act 1974 (the "Act").
- The common law (which implies a duty to take reasonable care of employees).
- European Council Directive 89/391/EEC (the Framework Directive) which includes the basic duty to ensure safety and health of workers (articles 5 and 6).
The Act and The Management of Health and Safety at Work Regulations 1999 (the "Regulations") set out statutory obligations that employers owe to employees. The Act sets out general duties and the Regulations are more explicit in respect of what employers are required to do to manage health and safety under the Act. Under the Regulations employers are required to:
- carry out an assessment of risk to employees' health;
- have in place a clear emergency procedures policy should there be an event that results in 'serious and imminent danger to persons at work';
- communicate relevant information about the emergency procedures to all employees; and
- provide appropriate training to all employees to ensure that the emergency procedures have been understood.
Most employers will already have business continuity plans in place but it is sensible to review these to consider whether they deal with a situation such as an infectious disease pandemic. If not, then they should be amended quickly and re-communicated to employees.
These obligations are very important to employers looking to formulate their response to the threat of customers, staff, visitors to premises etc, being infected with the coronavirus and so spreading the virus into the employer's workforce. An employer is required to undertake risk assessments against identified risks and it is clear that protection against the risk of infection spreading at work requires a risk assessment. Additionally an employer is obliged to stay abreast of health and safety developments, which is key given the rapidly developing situation and consequently the advice being given by public authorities.
There are a number of more specific legal obligations which employers must not overlook.
For example, a global pandemic is likely to result in the need for employers to collect, hold and disclose medical information about employees. As a result, the requirements of the General Data Protection Regulation will be particularly relevant. Information about employees' health will constitute 'sensitive personal data' and therefore such information will have to be processed in accordance with GDPR. However employers can process medical data relating to a data subject where it is necessary for the employer to comply with its legal obligations in relation to health and safety.
There are enhanced health and safety duties on employers of pregnant women and disabled employees. This is relevant since pregnant women are thought to be more at risk from the coronavirus as are some disabled staff e.g. asthmatics and diabetics. In particular pregnant workers are entitled to a work assessment under Regulation 16 of the Regulations 1999 if there is a potential risk to health and safety of mother or baby. Clearly this would apply to the risk of infection from the coronavirus.
It is important that any review of arrangements and new policies, initiatives etc, are properly recorded, since policies, training and communications need to be recorded for health and safety records (Regulation 3 Health and Safety (Consultation with Employees) Regulations 1996).
It should not be forgotten that under the Act, all employees have a general duty to take reasonable care to ensure that they do not endanger themselves or anyone who may be affected by their actions at work. Employers should remind their employees of this and warn them that their failure to adhere to an emergency procedure, which results in other employees suffering, could result in disciplinary action or even prosecution under the Act.
Sources of specific advice for the employer
There are a number of highly important sources of advice for employers. In our view the duty of health and safety requires employers to stay on top of the latest information about the spread of coronavirus in areas of the world relevant to the employer and its business. This could include advice relating to foreign travellers from associated companies and customers visiting the UK, foreign travel by UK employees to other parts of the world or something as simple as considering areas of high risk of infection within the UK (e.g. during a daily commute on public transport). Useful sources of advice which we have identified include:
- Pandemic flu: workplace guidance – Health and safety executive.
- Covid-19: specified countries and areas – gov.uk.
- Coronavirus (Covid-19): latest information advice – gov.uk.
- Travel advice coronavirus (Covid-19) – gov.uk.
- WHO coronavirus disease (Covid-19) outbreak.
Next steps for employers
In general terms, the steps an employer needs to be taking now break down into three categories. These are Review, Communicate and Update with particular attention being paid to travel arrangements. No list of action points will be comprehensive for all employers but the following will form a good starting point.
- Review business continuity plans i.e. critical activities etc, and how these would be maintained if employees are suffering from coronavirus absences.
- Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending e.g. how can an employee provide a fit note if they have to isolate for 14 days?
- Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
- What are the employer's emergency procedures e.g. if there is an infection and the workplace is closed on a temporary basis?
- Are contact details for all staff up-to-date?
- Would it be appropriate to do a test run of an emergency communication to see how robust the process is?
- Has the employer done a risk analysis on high risk groups of employees? In broad terms we think that this will be likely to include those who are travelling frequently to countries outside the UK, where there is currently or may well in future be a risk of infection. The second group will be those with health issues such as asthma, diabetes, cancer or who are pregnant, who are more likely to suffer adversely if they become infected with the virus. What steps is the employer taking to try and reduce risks for those groups? This may involve allowing people to work remotely, or it could be as simple as permitting some people to travel outside rush hour so that, if they commute on public transport, the risk of infection is reduced.
- Review procedures in the office for preventing the spread of the virus, e.g. increased cleaning, availability of hand sanitisers and tissues etc.
- Review planning for the possibility of large scale absenteeism. For example:
- Identifying: the essential positions within the business; what needs to carry on during an emergency; and what is the minimum number of employees required?
- Identifying employees with transferable skills so that these essential positions can always be temporarily filled.
- Considering flexible work patterns, such as employees working from home.
- Identifying those employees who have the necessary IT infrastructure to work from home (e.g. remote access to the office computer systems).
- Identify an appropriate person as spokesperson/communicator of updates on policies etc. with appropriate credibility.
- What if anything is said about absence from work for reasons other than ill-health e.g. where an office is closed?
- Assuming the employer has a health and safety committee, have there been any discussions with that committee about the coronavirus and its potential impact? If there is no such committee, the employer may want to consider setting one up.
- Communicate as a matter of urgency with the high risk groups identified in any risk review to ensure they are aware of their high risk status and the measures that are being taken to assist.
- Ensure managers are aware of the relevant workplace policies.
- Consider issuing guidance to employees on how to recognise when a person is infected with the coronavirus. What are the symptoms, and what should one do if one is taken ill at home? What should one do if one is taken ill at work? It is also important to emphasise that individuals may not recognise that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as the NHS 111 contact number.
- Is there any advice the employer can give to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus. For example advice on handwashing, use of sanitizer gels coupled with a willingness to self-identify, where it is possible that individuals have either come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
- Make clear that where staff are ill, it is not expected that they will come to work regardless i.e. "struggle through". In the context of a pandemic, such as the coronavirus, encouraging staff to come in if they are unwell would be manifestly counterproductive, spreading the virus further within the workforce, and also encouraging staff who are healthy to stay away from work for a fear of becoming infected at work.
- Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
- Consider establishing a committee on the employer's side to coordinate responses, engage with any staff consultative forum, and with particular responsibility for staying up to date with public health updates
- How will employers communicate to employees regular updates on the coronavirus and its spread. As news develops, it is extremely important for an employer to be issuing fact based updates, to avoid the possibility of fear etc. being used by worried employees to take decisions about whether or not to come to work, whether to travel abroad etc.
- Who will have the authority to determine changes to policy and issue any new communications to staff?
- Log employee travel before it is booked and check against the latest travel protocols.
- Ensure staff know that this applies to personal travel as well as business travel.
- Encourage staff to tell you if close family members with whom they share a house are travelling to infected areas.
- Replace face-to-face meetings (especially those involving travel) with video conference, telephone conference etc.
- Consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.
When reviewing common questions raised by employers in these types of situation, it is important to retain perspective. Often, employer planning starts with an assumption that employees will be as difficult and intransigent as possible. Here, employer planning can proceed on the basis that employees, who will be naturally concerned about their own health and safety, will cooperate with sensible measures that are clearly communicated to them for rational reasons. Whilst we acknowledge that there will always be employees who are the outliers (for example trying to malinger) it is unlikely that such misbehaviour will be anything other than an exception to the rule.
- Does the employer have to pay staff sick pay or full pay if an employee is self-quarantining?
- If staff are self-quarantining because they are showing symptoms of the coronavirus, then an employer's sick pay policy will apply, in the normal way.
- Where staff are not showing any signs of symptoms but the medical advice is for them not to attend work, for example because they have travelled within the last 14 days from an area identified as high risk at the time of this note, then the position is less clear-cut. Currently people travelling to the UK from 'lockdown' areas such as Northern Italy are advised to self-isolate and avoid contact even if they do not have any symptoms. Our view is that staff should be paid if they are being asked to remain away from work on medical grounds by either the employer or a medical expert. The same would apply where the medical advice is for individuals to remain away from work although they have only mild symptoms. Subject to the terms of the contract we think this would be treated as contractual sick pay but we anticipate that many employers will choose to treat people as being on full pay if they have no symptoms but sick pay if they have mild symptoms.
- Where individuals are self-isolating because the employer asks them not to attend work (perhaps the employer is taking a more cautious view on the spread of the infection or the individual belongs to a high risk group that the employer wishes to protect) then again we think that the employer should be providing full payment to those individuals. Although the point is arguable, it would seem to be difficult for an employer to require an employee who is otherwise fit and well and willing to work, to stay away from work and then not pay them in full under the contract. It is possible that a different conclusion might be reached if the contract specifically identified another option (for example short time working). In addition, any policy or procedure put in place by an employer is going to depend on compliance of individuals. If the employer is trying to suspend individuals who have self-reported that they have visited an area that was infected or they had come into contact with someone who is infected, but the employer is not going to pay them, then this will only encourage non-compliance with the underlying procedure by the employee.
- The other point to bear in mind is that the employer's treatment of its workforce in these circumstances is going to be remembered. Individuals who are effectively prevented from working and then who are not paid in accordance with the company's sick pay policy or (when they are not sick) are not paid in full, will remember that treatment. Conversely where an employer has implemented a speedy and effective policy and has stood by employees and complied with the sick pay policy or paid them in full (depending on the reason for absence) this will be a powerful factor in building loyalty and stability in the workforce.
- What should an employer do if the employee refuses to come in to work because they are worried about an infection being picked up at work?
- In this scenario the employee is fit and healthy and is not subject to medical advice to self-quarantine. If the employee refuses to come to work for fear of catching the virus, what should an employer do? It is likely that a degree of fear and misunderstanding will arise if the virus becomes more widespread. In principle an employee who has no rational reason for staying away from work is guilty of unauthorised absence and can be disciplined accordingly. Employers will want to ensure that they are approaching similar cases in a similar fashion so this may require a joined up approach between different sites and different cases. But this cannot be answered in the abstract. For example what approach should an employer take with one of the high risk groups who may be more likely to be infected or for whom the consequences are worse? The provisions of Section 44 ERA 1996 also need to be borne in mind. If the employee takes appropriate steps to protect themselves in circumstances where they believe that there is a serious or imminent danger to them, then any attempt to discipline or dismiss that staff member will give rise to an uncapped damages claim. It may be better to say in any policy document that, where an individual has concerns about attending work (given the possibility of picking up the virus) then this must be disclosed before the working day in question and the employee should accept that they should work at home so far as possible and if necessary outside normal working hours, to ensure continuity of operations.
- Can an employer suspend individuals where they have travelled from areas which are not currently identified as high risk areas by the Government advice?
- The starting point will be to consider the contract of employment and the employer's power to suspend. If the employer is suspending without any rational grounds for suspension, or, worse still, is suspending on the basis of assumptions about the ethnic or racial background of an employee and the likelihood that as a result they have come into contact with the virus, this would be a breach of contract and discriminatory. We anticipate that a court or tribunal would allow the employer some margin for error, if the employer is trying to prevent the spread of the virus, in accordance with its legal obligations, to non-infected employees. However, any policy would have to be explained in full and have a rational basis behind it, if the employer was going to take a more vigorous approach than the current medical advice.
- What happens if employees have children who cannot attend school and the employee needs to take care of them during working hours?
- It is likely, if the virus takes hold, that we will see more schools being closed. This will inevitably throw childcare arrangements etc, into chaos. The same may happen if childminders or other family members are affected by the virus and unable to discharge their role. Elder care arrangements too may be adversely affected. Under English law employees are able to take time off to make arrangements for care for a dependant (Section 57 ERA 1996), but this does not translate into a right to take time off to provide the care personally. Moreover the right to time off is an unpaid one.
- We suggest that it is sensible for an employer to accept that, if there is a pandemic and many infections in the UK, employees will have to care for the dependants themselves, in many cases, because it may be almost impossible to find replacement cover. We suggest that an employer's policy should be aimed at understanding the circumstances, and working with the employee concerned to establish whether other forms of work pattern may be suitable. If the employee can work at home outside normal working hours (e.g. because childcare is needed during working hours) then this may be an adequate compromise for all concerned.
- Can an employer require an employee to prove they are healthy before returning to work (e.g. by taking a test)?
- Although there is no objection to asking if an employee would consent to a test, it is not permissible for an employer to require an employee to take a test or, for example, face being suspended without pay or dismissed. If an employer has concerns, about an employee's health and the employee will voluntarily have a test, then the employer should suspend the individual on full pay to allow time for the test to happen and results to be obtained. If the employee will not agree voluntarily to having the test, then the employer could consider suspending the employee's sick pay or full pay depending on the precise circumstances, until the position is clarified. The employee may reflect on whether having a test may be a shortcut for getting back to work.
- Can the employer insist on an employee having a GP's note confirming that they are now fit to return to work?
- In theory, GP's can be asked to provide a fit note if an individual has had coronavirus as they are likely to have been off work for a number of days. However this presents two problems. First, if the medical advice remains that the individual should self-isolate for 14 days after the symptoms have ceased to be visible, this will preclude the individual obtaining a fit note sooner. Secondly it is likely that there will be considerable pressure on GP's, and as such, it may well be very difficult for individuals to get in front of the GP to obtain the necessary note. This may be an area where employers, having an eye to the current medical advice online from the Government, need to be realistic about insisting on having fit notes before individuals are permitted to return to work.
- Does the employer have to tell its workforce if an employee has been identified as suffering from the coronavirus?
- In short there is probably no absolute legal obligation to do this, but it would almost always be a good idea. An employer needs to be expected to demonstrate that it is being open and candid with its workforce during these occasions. Employees need to trust the employer and the plans it is putting in place. If employees consider that their employer is lying or withholding something that would be of considerable interest to them, this will only play badly. Equally it is highly likely that such news would leak out, one way or another.
- An employer should almost certainly try to avoid identifying the individual employee who is ill, because this could potentially amount to a breach of the individual's human rights and/or rights under the data protection regime. Personal medical information is, after all, sensitive personal data.
- The limits of this do need to be recognised, however. Employees are likely to figure out which employee is suspected to have coronavirus. Follow up testing by the employer of employees who came into contact with the infected employee may well pinpoint fairly rapidly who is the potential carrier. To the extent that employers are able to avoid naming the individual directly (unless the employee concerned has no problem with that) and employees are instructed not to talk to the media about who may have the virus, it is unlikely that there would be any significant risk of a sanction being applied, even if there was a technical breach of GDPR.
- Can the employer make the employees work at home if there is a risk of infection at work or public transport is heavily disrupted?
- Much would depend on the terms of the individual contract. Equally most employees who are capable of working at home may well accept this readily, regardless of the power under the contract to require this to happen.
- It may be sensible for employers to discuss with key employees, who may be asked to work from home, ahead of time, so that any discussions about necessary equipment for use at home can be resolved before the particular need arises.
Disciplinary action and dismissal
If a pandemic occurs it is possible that employees might refuse to go to work if they are concerned about catching the disease from other employees. Under UK employment law, an employee is automatically unfairly dismissed if the reason for the dismissal is that the employee reasonably believes that they are in serious and imminent danger. However, this relies on the employee's belief being reasonable and this may not be the case until advice given by health experts and the Government is that the pandemic disease has become so contagious that employees should remain at home. If, in the view of the employer, employees are unreasonably refusing to come into work for fear of catching a disease, then they can be disciplined and, if appropriate dismissed, so long as a fair procedure is followed. Having said this, employers will undoubtedly wish to exercise sensitivity should a pandemic materialise.
Employers may also face the opposite scenario where employees who have flu-like symptoms refuse to stay away from work or fail to comply with the employer's health and safety policies for emergency situations. In so doing, employees are likely to increase the risk of their healthy colleagues becoming infected. Again, these employees can be disciplined provided that a fair disciplinary process is followed.
March 03 2020
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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.