An outline of Employer and Employees Responsibilities
The World Health Organisation (WHO) officially declared Coronavirus (COVID-19 the official name of the virus) a pandemic on 11 March 2020.
The news media has outlined risks and uncertainties associated with COVID-19. These are presently having an enormous impact on the way we lives. The UK Government is providing guidance on a daily basis on aspects of life such as travel and how best to stay safe.
Particularly given these uncertain times, we have considered the implications of COVID-19 in our workplace. We have thought it useful to set out a reminder of the fundamental statutory duties under law on employers and employees. We have also attempted to tackle some frequently asked questions. There will no doubt be more questions as the situation develops. We will therefore monitor the situation and keep these FAQs updated.
Let’s firstly consider Employer’s duties, under Health and Safety legislation.
In summary, Employers should:
• Assess the risks at work of COVID-19;
• Implement preventive measures, where risks are identified;
• Inform staff of the risks and preventative measures taken and;
• Monitor and review the situation in consultation with employees and appropriate health and safety reps.
Employers are under a duty to ensure “so far as is reasonably practicable” the health, safety and welfare at work of all their employees. Remember this includes providing a safe system of work and the provision of information and training and supervision as is necessary to ensure the health and safety at work of employees.
Employers are required to carry out a “suitable and sufficient” risk assessment to identify the risks to the health and safety and take “reasonably practicable” steps to eliminate or reduce that risk. It’s important for Employers to be mindful that they must consult employees in good time on health and safety matters. This includes what the risks at work are, the steps taken to manage and control those risks and how information and training will be provided.
The duty on employers is not just limited to employees. It also applies to workers, including contract workers, as well as clients, customers and visitors to the workplace.
The measures it is “reasonably practicable” for an employer to take depends on the risk of a particular job or workplace. This is opposed to the time, cost and physical difficulty of taking measures to avoid or reduce the risk. The risk must be a real risk as opposed to a hypothetical risk. Therefore, in cases where the risk is small it may not be reasonably practicable for the employer to take a measure which would be difficult and or too costly. On the other hand, if the preventative measure can be taken without much difficulty it is likely to be reasonably practicable for the employer to take it.
Employers should therefore identify in consultation with elected health and safety representatives, (or the workforce if there’s no elected health and safety representatives), if COVID-19 presents a risk in the workplace. Where there is a risk (which is likely) the employer should take steps to prevent the risk. A record of the risk assessment should be kept where the employer employs five or more employees and reviewed as matters change.
What actual and practical steps should Employers take?
Public Health England and ACAS recommend that employers take the following steps:
• Keep all staff informed and up-to-date on actions being taken to reduce the risks of exposure to COVID-19 in the workplace.
• Make sure all employee’s contact numbers and emergency numbers are kept up-to-date.
• Make sure managers (and those with supervisory obligations) know how to spot symptoms of coronavirus. They should also be clear on the relevant internal and external processes to follow, including public health guidance, as well as sickness reporting and sick pay procedures.
• Make sure there are clean places to wash hands with hot water and soap and encourage everyone to wash their hands regularly.
• Provide hand sanitiser and tissues and encourage employees to use them.
• Ensure regular cleaning of public and communal areas, as well as frequently touched surfaces such as door handles, lift buttons, telephones, photocopiers etc.
• Screen visitors by asking them to confirm that they have not been in a high risk area.
• Inform employees and workers of the latest information on COVID-19 including the symptoms and make clear they should stay at home if they develop symptoms.
The above list should not be considered an exhaustive list. It is the responsibility of employers to review and monitor the risk assessment and preventative measures. Employers should consult with the appropriate health and safety representative (or workforce where there are no elected health and safety representatives). Any review undertaken should be consistent with the latest guidance on Coronavirus from the WHO, the Government, Public Health England and ACAS.
Consideration of the duty not to discriminate against workers.
Public Health England and ACAS recommend that employers take the following steps:
• Keep all staff informed and up-to-date on actions being taken to reduce the risks of exposure to COVID-19 in the workplace.
• Make sure all employee’s contact numbers and emergency numbers are kept up-to-date.
• Make sure managers (and those with supervisory obligations) know how to spot symptoms of coronavirus. They should also be clear on the relevant internal and external processes to follow, including public health guidance, as well as sickness reporting and sick pay procedures.
• Make sure there are clean places to wash hands with hot water and soap and encourage everyone to wash their hands regularly.
• Provide hand sanitiser and tissues and encourage employees to use them.
• Ensure regular cleaning of public and communal areas, as well as frequently touched surfaces such as door handles, lift buttons, telephones, photocopiers etc.
• Screen visitors by asking them to confirm that they have not been in a high risk area.
• Inform employees and workers of the latest information on COVID-19 including the symptoms and make clear they should stay at home if they develop symptoms.
The above list should not be considered an exhaustive list. It is the responsibility of employers to review and monitor the risk assessment and preventative measures. Employers should consult with the appropriate health and safety representative (or workforce where there are no elected health and safety representatives). Any review undertaken should be consistent with the latest guidance on Coronavirus from the WHO, the Government, Public Health England and ACAS.
Consideration of the duty not to discriminate against workers.
Quite simply, Employers must ensure that they do not treat individuals less favourably in terms of how they apply advice or practices in place to reduce the risk of COVID-19 because of race. An example could be where an employer introduces personal travel restrictions, beyond those recommended by the FCO. Employers should also be vigilant and tackle staff being harassed because their racial background or nationality. Maybe due to an area or country which is (or has been) perceived or identified to be a high risk. So, for example, there are reports of Chinese people being subject to abuse over COVID-19 and employers could be liable for this kind of harassment of workers in the workplace.
Another important consideration for Employers is the need to consider if disabled workers are particularly vulnerable. If they are then make reasonable adjustments should be addressed. For example, if a disabled worker is at a higher risk of contracting COVID-19 due to suppressed immunity they are more likely to hit the triggers in a sickness absence procedure. In that case it could be a reasonable adjustment to adjust the sickness absence triggers if they are at a greater risk of being subject to capability procedures and dismissal. Another example is allowing disabled workers to work from home where there is a higher risk of contracting COVID-19 due to their disability or where consequences are more serious in the event of contracting it, due to the underlying medical condition.
In the event that a disabled worker who is refused pay, because they have been advised to self-isolate. As they are much greater risk, may be able to claim that they have been treated unfavourably because of something arising from their disability. The employer would then have to argue the decision not to pay them was justified for a legitimate aim. The cost to the employer is unlikely, on its own, to be a legitimate aim.
What is the employer’s duty to provide personal protective equipment (PPE)?
Firstly, safe systems of work should considered and employers should take the steps to identify and reduce the risk of coronavirus in the workplace. There is a duty on employers to provide personal protective equipment (PPE) against risks to health and safety. However PPE should be considered a last resort.
The specific government guidance for Employer’s states that it is not recommended that employees wear facemasks and confirms that those dealing directly with members of the public behind a full screen will be protected from any airborne particles. Facemasks are only recommended to be worn by those advised to do so by healthcare workers. The ACAS guidance states that face masks might help those working in particularly vulnerable situations.
The duties of employees
Obviously Employees are also under a duty to take reasonable care for the health and safety of themselves and others, who may be affected by their actions or omissions at work. For example, by not coming into work if they have been advised to self-isolate. They are also under a duty to co-operate with any preventative steps taken by the employer. For example, it’s vitally important that people comply with good hygiene rules/practices.
Employees who feel unwell should ensure that they contact the employer in accordance with the employer’s sickness absence policy and/or procedure and inform the employer.
We should be mindful too that both employers and employees are bound by the terms and conditions of the contract of employment and the implied duty of mutual trust and confidence. Given these are unexpected and uncertain times the way in which terms and conditions can be interpreted, in light of the implied duty of trust and confidence and the statutory duties on health and safety, is likely to be a developing area. Unions may wish to negotiate a specific COVID-19 collective agreement or policy in the workplace, to address the concerns they and their members may have.
Frequently asked questions on COVID-19 in the workplace
If the employee does not self-isolate in accordance with government guidance, the employer may request that they do not attend the workplace. This is likely to be a reasonable instruction. An employer can rely on the implied contractual duty to ensure the safety of their employees while at work and/or the duty to maintain trust and confidence. An employer may also put the employee on “garden leave”, if there is a clause in the contract which allows them to do this. A garden leave clause requires an employee to stay away from the workplace and stop working, even though their contract of employment continues. An employee who fails to comply with a management instruction to stay away from the workplace in accordance with government guidance may be disciplined by the employer and is unlikely to have a legal claim where the employer complies with its disciplinary procedure.
Where the employer dismisses an employee, this is likely to be for the fair reason of “some other substantial reason” (SOSR). Whether the dismissal is fair will depend on the employer following a fair procedure and acting reasonably in deciding to dismiss. Factors which are likely to be relevant include whether the employee fell within the category of employees advised by the government to self-isolate and the reason for dismissing was genuine.
The Government further intends to extend SSP entitlement to people caring for those within the same household who display COVID-19 symptoms and have been advised to self-isolate, during these exceptional times.
With regard to contractual sick pay, this will depend on the terms and provisions of the contract of employment. In most cases contractual sick pay is dependent on an employee being incapable of work.
Unless the term “incapable” is defined in the contract, employees should assert that it should be interpreted in the same way as it is for statutory sick pay and as such the employee should receive contractual sick pay where they are required to self-isolate in accordance with PHE guidance.
The Government also announced in its budget on 11 March that its “new style’ Employment and Support Allowance (EAS) will be payable for those who are self-employed and employees who earn below the Lower Earnings Limit (currently £118 per week) and “who are directly affected by COVID-19 or self-isolating according to government advice from the first day sickness”.
This is an area where employees should check to their contract provisions and see if their terms and conditions of employment provide for a right to paid compassionate leave.
Unions may wish to discuss with employers provisions available for employees as the situation develops and particularly as the Government moves towards the “delay stage” which could lead to the closure of schools.
Employees should check to see if their terms and conditions of employment provide for a right to paid compassionate leave.
Where a worker is sick during a period of contractual annual leave, they will need to check their terms and conditions of employment.
ACAS advice “Coronavirus - advice for employers and employees” states that employers should listen to any concerns staff may have where an employee does not want to go into work because they are afraid of catching the virus. Moreover, if there are genuine concerns, the employer must try to resolve them to protect the health and safety of their staff.
ACAS suggest that the employer could consider offering flexible working or agree with the employee to take time off as holiday or unpaid leave. However, there is no obligation on an employer to agree. However, the employer should ensure that any request is dealt with fairly and does not discriminate on grounds of age, disability, gender reassignment, marriage/civil partnership, race, religion or belief, sex and sexual orientation.
An employee who has 26 weeks continuous service has a statutory right to request flexible working. An employer can refuse a request on a number of statutory business grounds. It is also important to be aware that any change to the contract is permanent unless the employer agrees it is for a temporary period.
Flexible working may not be possible for a large number of workers. Where the union is recognised they may wish to negotiate with the employer contingency plans as part of a COVID-19 agreement.
Alternatively, an employee with one month’s service could remain in employment and claim for one or more of the following;
1. A statutory guarantee payment. This is limited to £29 per day (£30 from 6 April 2020) for a total of 5 days so a total of £145 (£150 from 6 April 2020).
2. Damages in the county court for breach of contract.
3. Unlawful deduction from wages in the Employment Tribunal.
An employer may seek to persuade employees to agree to taking unpaid leave. In that case the employees will have agreed to lay off.
Where there is a contractual right to lay off, employees can claim a redundancy pay under the statutory scheme if they have been laid off for four weeks in a row, or a total of six weeks (but no more than three consecutive weeks) in any 13-week period and are earning less than half their usual weeks’ pay. However, in order to receive a redundancy payment an employee is required to resign bringing their employment to an end. There are also required to give their employer written notice of their intention to claim (NIC) a redundancy payment. The requirement to give written notice is complex and subject to strict time limits which, if the employee gets wrong, will mean they won’t receive a redundancy payment. An employer can also challenge a claim for a redundancy payment by giving the employee written counter notice if they can guarantee the employee 13 consecutive weeks of work within four weeks of receiving the NIC.
Note that an employee who is not available for work due to sickness absence is not treated as being laid off for the purposes of the statutory scheme. In most cases where the union is recognised a collective solution may be a better option.
If it is not reasonably practicable to bring it to the attention of a recognised health and safety rep or there is no health and safety rep in a non-recognised workplace the employee should bring it to the employer’s attention. When doing so we recommend that the employee makes clear to the employer that they are bringing this to their attention because:
i. They reasonably believe it is harmful or potentially harmful to the health and safety of employees and others including clients/customers/service users and visitors.
ii. Guidance from PHE and the government guidance (which advises people maintain good hygiene, as part of its strategy to contain COVID-19) is not being followed.
iii. There is either no safety representative (non-recognised workplace) or it is not reasonably practicable to bring it to the attention of the appropriate health and safety representative or safety committee (e.g. because the health and safety rep is on holiday, is based at another site, on another shift or you have tried and not been able to contact them).
An employee who is disciplined as a result of raising a health and safety issue which they reasonably believed to be potentially harmful to the health and safety of employees may have a claim that they have been subject to a detriment on health and safety grounds. Breach of the duty on health and safety may amount to a protected disclosure and an employee who is subject to a detriment for having disclosed the breach may have a whistleblowing claim.