Coronavirus


Coronavirus

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Coronavirus and your employment rights

UPDATED 23 JULY 2020 

Please find below some of the most frequently asked questions relating to the coronavirus and your employment rights in an easy to understand format.

HEALTH AND SAFETY 

What are my employer’s general obligations to employees in relation to Coronavirus?

Your employer has a duty to provide a safe place of work and take reasonably practicable steps to protect your health and safety. This includes conducting a risk assessment in relation to Coronavirus, and to identify whether anything about the business or workplace puts employees at particular risk of being infected.

If someone that you work with has been advised to self-isolate by doctors, but they insist on coming into work anyway, then your employer may breach its health and safety obligations to other employees if they do not take steps to enforce your self-isolation.

What could my employer do to protect us from Coronavirus?

If any particular risks are identified, your employer should put appropriate protective measures in place, such as:

  • Asking employees not to come into the workplace if they have returned from a high-risk area or had contact with an infected person
  • Identifying employees who are more vulnerable to infection, such as those who are pregnant and those who have underlying health conditions, and putting in place special measures to protect them.
  • Facilitating home-working.
  • Putting up signs about hand-washing and ensuring that employees are up to date on government guidance.
  • Providing tissues, antibacterial gel or hand-wipes for employees to use in the office.

I have a high risk of suffering complications if I catch Coronavirus. What are my employer’s duties to protect me?

It has been reported that those who are at greatest risk of suffering severe symptoms and complications from Coronavirus are the elderly, pregnant women and those with compromised immune systems. If you do have a condition which puts you at greater risk, or you are pregnant, then your employer owes you additional duties to protect your health and safety. Your employer should consider allowing you to work from home, if possible, and discuss with you any precautionary measures that could be taken to protect you.

ABSENCE, SICK PAY & SELF CERTIFICATES

Will I get statutory sick pay if I have the virus and need to self-isolate,or live with someone who has the virus but have no symptoms myself?

Statutory sick pay (SSP) is now available if you are diagnosed with Covid-19 and unable to work and need to self-isolate, or because you live with someone who has the virus. SSP will also now be payable from day 1, instead of the usual day 4 for affected individuals.

The extended SSP will be available for all those who are advised to self-isolate, even if they haven’t yet presented with symptoms.

You need to be earning a minimum of £118 a week to be eligible for SSP at £95.85 a week, and it is payable up to a maximum of 28 weeks. Your employer can pay a greater amount of sick pay if they wish, but at a minimum it needs to be at the SSP or your contractual sick pay-whichever is the higher.

Will I receive statutory sick pay if I am a shielding employee?

Yes. You will be deemed to be incapable of work if you are unable to work because you fall within the extremely vulnerable category and have been advised to shield.

Will I be entitled to statutory sick pay if I have been told to isolate under the new “Test and Trace” system?

Yes, anyone who has been notified that they have had contact with a person with coronavirus, and who needs to self-isolate for 14 days as a result, will be entitled to statutory sick pay.

Do I need a note from the GP?

In an effort to keep COVID-19 contained, the Government has advised you not to visit your GP in person.

Instead, if you have symptoms and need to provide medical proof for your employer, you can get an isolation note from NHS 111 online.

From here, you’ll need to answer a series of questions, including:

  • Have you been told to stay at home by the NHS website, NHS 111 or a healthcare professional?
  • Why do you have to stay at home?
  • When do you need this note to start from?

If, however, you are just living with someone who has symptoms, then you need to get a note from the NHS website.

These isolation notes replace the usual need for a “fit note” or “sick note” after seven days of absence.

The Government advice is that employers use their discretion around the need for medical evidence for a period of absence where an employee is advised to stay at home either as they are unwell themselves, or live with someone who is, in accordance with the public health advice issued by the government.

How do I claim Statutory Sick Pay?

To claim SSP, you’ll need to inform your employer that you are sick, or that you are in isolation with someone that is sick. You’ll need to check your symptoms, or the other persons symptoms, on the NHS 111 website here, which will advise you on whether you need to stay at home or not.

Could I agree with my employer to do work form home rather than having to receive sick pay?

If you have symptoms of the virus, and have self-isolated or been medically signed off by your GP, then you shouldn’t be working. If you are self-isolating because someone you live with has the virus, then you could agree with your employer to work from home on full pay, rather than having to receive only statutory sick pay. Your employer doesn’t have to agree to this, however.

What are my rights if I feel fine and there is no reason to self- isolate, but my employer has asked me not to come into work?

If you do not need to self-isolate, but your employer asks you to stay at home as an extra precaution, this would technically count as a period of suspension. Whether or not you can work from home, you should still receive your full pay if it is at your employer’s insistence that you do not come into work. You may, however, be asked to take annual leave or special leave.

If your employer can not afford to keep your job alive because there is no work for you, they could make you redundant or agree Furlough Leave (the coronavirus job retention scheme).

What are my rights if I am key worker or otherwise have to go to work, but don’t want to because I’m concerned about catching the virus?

The government is asking employers to take socially responsible decisions and listen to the concerns of its staff. This is in the hope that a pragmatic agreement can be reached about working arrangements.

The reality, however, is that if your employer insists you attend the workplace, when you are concerned about catching coronavirus, this will present you with practical difficulties. You would not automatically qualify for sick pay and your absence may well be treated as a disciplinary matter.

It could be that a home-working arrangement is able to be put in place, or your employer might agree to you taking time off as annual leave, parental leave, unpaid leave or sabbatical.

If you have underlying health conditions which pose a particular risk then staying at home is more likely to be justified. Indeed, if you have an existing disability such as respiratory disorder, then not allowing you to work from home could amount to a failure to make reasonable adjustment, and therefore discriminatory.

Even if you don’t have an underlying health condition, your employer has a statutory duty of care for your health and safety and to provide a safe place to work. If you are pregnant, or you or one of your ‘dependants’ (such as family members) have a pre-existing condition which would make you (or your dependants) vulnerable to the virus, you could argue that it would be a breach of your employment contract (more specifically a breach of the mutual duty of trust and confidence) to force you to come to work.

If you have a recognised disability, your employer would specifically be required under the Equality Act to consider what ‘reasonable adjustments” can be made.

These are unique times, and you should always discuss your concerns with your employer and try to agree an amicable solution. There is  a strong moral responsibility for employers to ensure that their employees and workers feel safe and secure in their employment. Your employer should do everything it can to protect its workforce while complying with latest government advice.

What health and safety steps could my employer take to protect me from Coronavirus?

Your employer is under a duty to identify risks in the workplace, and put appropriate protective measures in place. This may include:

– Asking employees not to come into the workplace if they know such individuals have had contact with an infected person.

-Identifying employees who are more vulnerable to infection, such as those who are pregnant and those who have underlying health conditions, and putting in place special measures to protect them.

-Facilitating home-working wherever possible.

-Enable social distancing between workstations and other communal areas of the workplace.

-Putting up signs about hand-washing and ensuring that employees are up to date on government guidance.

-Providing tissues, face masks ,antibacterial gel or hand-wipes for employees to use in the office.

If you are concerned that your employer is not taking all practical steps to promote social distancing, then you can report this to your local authority or the Health and Safety Executive who can take a range of action, including where appropriate, requiring your employer to take additional steps.
The government is shortly about to publish further specific “COVID-19 Secure” guidelines on how to make workplaces safe, which they say have been developed in consultation with over 200 business leaders and trades union organisations.

How does Furlough leave (the government’s coronavirus job retention scheme) work?

Is my employer under a duty to let me know if other staff have been asked to self-isolate or is suspected of having coronavirus?

Although there is likely to be no obligation to do this, your employer does have a duty of mutual trust and confidence and a duty to take care of all employees’ health and safety. Unless it is already well known who the affected individuals are, revealing details of an infected employee, including their medical situation without permission could amount to a breach of their data protection rights or right to privacy.

What are my rights if I am stranded overseas after a holiday or business trip?

The general position is that there is no automatic right to be paid if you are not working when you are supposed to. If you are stranded overseas (e.g. in China or Italy), either because you were on holiday or a work trip, then you should try keep your employer up to date on your situation and whether you can safely travel home.

Depending on your circumstances, it may be possible to implement some form of remote-working, even if you have never previously done so. You might also have to use additional annual leave to cover your absence. Ultimately, the discretion about whether or not to maintain your salary in these circumstances would be down to your employer.

What are my rights if my workplace has to close under new Government rules?  

The government has introduced measures (starting 23 March) requiring that certain businesses and retail outlets MUST close. The guidance also states that others should only leave home under a list of ‘very limited purposes’. This means people should only travel to and from work where work cannot be done at home- and where that work is essential to the employer. Many businesses have decided to close their main workplace, but they do not have to do so.

Government guidance is that employers and employees should try to come to a reasonable agreement (e.g. working from home, if appropriate, or taking time off as holiday or unpaid leave). What is reasonable will depend on the degree of risk and the individual’s personal circumstances. For example, you may be more vulnerable due to an existing health condition, age, pregnancy, mental health condition or caring responsibility.

If your workplace is having to close and you don’t usually work from home or you are unable to do so, your employer cannot usually deduct your pay for the time you are off work. The main exception to this is if your contract of employment has a clause which allows for unpaid lay-offs.  Also, if you are on a zero hours contract, your employer is usually not obliged to have to pay you.

If you are unable to work from home, and/or your employer cannot afford to pay you, they may choose to:

Can my employer force me to work from home indefinitely?

There may be many reasons why you do not want to work from home for long periods of time. This could be due to lack of space, disruptions, or simply a desire to separate work from your home life.

The starting point is that your employer has no general legal right to require you to work from home, if this is a departure from the norm. There are exceptions, however. If your employment contract contains a ‘mobility clause’ allowing your employer to change your place of work, then depending on the scope of the clause, this might give your employer the right to require you to work from home permanently.

For example, the clause might specifically state that your employer can require you to work from home, or it might be more general, stating that it can require you to work from any location in ‘the North-East of England’ or in a particular county. However, a mobility clause must still be ‘reasonably exercised’ by your employer , and must therefore be for sound business reasons.

If there is no mobility clause in your employment contract, then in order to change your terms and conditions, your employer would generally need to consult with you and seek your consent. If you are happy with the change and the support that your employer is putting in place, then you can accept it. However, if there is a good reason why you do not want to work from home indefinitely, then you have several options. Firstly, you can try and discuss the issue with your employer to see if you can resolve matters informally, and if this is not possible,  you could lodge a formal grievance. You could also refuse to accept the change your terms and work under protest, although this is often not wise as you may later be deemed to have accepted the change. 

If your employer insists that you comply with the change on you without your consent, then this could give rise to a claim for constructive dismissal. You would need to ensure that you do not remain working for your employer for too long if you want to resign and claim constructive dismissal. You could otherwise  be deemed to have accepted the change to your place of work due to the passage of time. However, you should always seek legal advice before you resign, as whether or not you have a claim for constructive dismissal will depend on your specific circumstances.

Finally, if your place of work closes down and everyone has been told to work from home as a result, then you could be in a redundancy situation if it is not possible for you to work from home.

What are my rights if I can’t go to work because my child’s school closes?

If unforeseen circumstances disrupt your childcare arrangements, then you are entitled to take a reasonable amount of emergency unpaid time off work. For example, if your child’s school closes in the middle of the day because a case of the virus is detected, then you would be able to go and pick them up. However, the purpose of emergency time off is for you to make alternative childcare arrangements, not to look after the child.

This may be a problem because, in the current climate, it could be difficult to arrange alternative childcare. It is hoped that employers will be more flexible than usual, and allow you to work from home, make up the time at a later date, or take emergency annual leave if you need to.

ANNUAL LEAVE

What are my rights if my employer wants me to use my annual leave while I am sick or self-isolating?

Your employer should not ask you to take annual leave if you are unwell or if you have been told to self-isolate (either by a medical professional or you employer). It might, however, be reasonable of your employer to ask you to take time off as annual leave if you want to stay at home, but have not been medically advised to do so.

You should note that if you wanted to stay at home because you have an underlying health condition or you are pregnant, then your employer asking you to use your annual leave could potentially amount to disability discrimination. 

Can my employer cancel my booked holiday because of Coronavirus?

Employers are entitled to cancel annual leave, as long as they give you as much notice as the amount of time off you are due to have off.  For example, if you are due to have a week of leave, your employer would need to give at least a week’s notice in advance to cancel your leave.

If your employer does cancel your leave, it does need to be for a solid business reason (for example they are short staffed because other employees are self-isolating).

If there is no good business reason, however, and the attempt to force the cancellation incurs you in financial losses, this may undermine the trust and confidence between the parties entitling you to claim constructive dismissal. You should always lodge a grievance before taking this step, and preferably take legal advice. Your employer may be willing to compensate you for the financial loss caused by the cancellation.

Can I cancel my annual leave because I was going to an area where there has been an outbreak?

If you want to cancel upcoming holiday because you are concerned about the virus, there is generally no requirement for your employer to accept this. This is unless your employment contract allows for you to cancel in this way, which is unusual. Your employer could therefore insist that you take your annual leave now (even if you are no longer going abroad). However, in this unprecedented situation, it would of course, be good practice for employers to be more flexible about allowing employees to cancel their holidays.

Can I carry over my annual leave if I can’t take it because of coronavirus?

If you are unable to take your annual leave entitlement for any reason, for example because you are a key worker, or you have been placed on furlough leave, the government has put regulations in place to allow you to carry over up to four weeks (20 days), which you will be able to take over the next 2 leave years. This would only apply if the circumstances of your employment meant that you did not have enough time to take the holiday leave. If your employer insists that you take holiday at certain times (and which may utilise your holiday allowance), there is nothing unlawful about this, and the question of carrying over holiday then becomes irrelevant.

Can my employer make me take my unused holiday when the crisis is over?

Employers are allowed to specify when employees can take their annual leave, as long as they give at least twice as much notice as the amount of leave to be taken. For example, if the employer wants the employee to take two weeks leave, it must give four weeks’ notice. It is therefore possible that your employer could ask you to take unused holiday during the crisis, if possible (for example if you are working from home) and after the crisis, to avoid a situation where employees take a very large amount of annual leave in the next leave year, for example.

DISCRIMINATION & HARASSMENT 

What are my employer’s duties in relation to discrimination against employees from ‘high-risk’ countries?

There has been a marked increase in racism and harassment of Chinese individuals since the Coronavirus outbreak began. This may arise with other other nationals as the virus spreads. Such behaviour includes making comments about the virus to employees from these countries, refusing to stand near them or ostracising them from meetings, among other things.

If you, or a colleague is subjected to racist behaviour because of Coronavirus, you should report this to your manager or HR. If your employer does not take reasonable steps to prevent such behaviour or does not take appropriate action in response to the allegation then your employer may be liable under the Equality Act 2010 for discrimination.

Can my employer ask me about my travel plans?

Yes, your employer can ask you about your travel plans as part of its Coronavirus risk assessment. However, this should not be discriminatory. This would apply, for example, if your employer is only asking employees who come from Coronavirus hotspots (e.g. Chinese employees) to disclose their travel plans.

Furthermore, if your employer implements a policy of cancelling annual leave to high-risk areas because of Coronavirus, this could be discriminatory towards employees who have family in such areas, as they are more likely to have their annual leave cancelled. It is possible that an employer might be able to objectively justify such a policy,however this would likely depend on the specific circumstances of the case.

 What data protection rights do employees have in relation to Coronavirus?  

Under GDPR, medical information and personal data about your health is ‘special category data’. This means that your employer must make sure that any communications about your health do not contain any information which could identify you as someone who is absent (i.e. your employer could tell employees that there is a suspected coronavirus case, but should not give any details which would lead an identification of a particular employee).

Cutting pay and hours

 

We are a leading firm of employment law solicitors, acting for employees and senior executives in the City and throughout the UK. For more information on the coronavirus and your rights and a free consultation, please get in contact on 020 7100 5256 and ask to speak to Philip Landau or any member of the employment team, or email us.

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Please find below further links to public sources of information, so that up-to-date information can be easily accessed.  Please note that Landau Law accepts no responsibility or liability whatsoever to those relying on public advice.  We have not checked the accuracy or any updating information by these third parties.

 

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