Over the past two weeks, and particularly over the past 48 hours, we have witnessed a significant escalation of the Coronavirus pandemic with a substantial increase in the numbers diagnosed and being advised to self-isolate.  We have seen mass public events across the world cancelled in the past few hours including the Australian F1 GP, St. Patrick’s Day celebrations in London, the England Cricket Tour of Sri Lanka as well as other major sporting events being played out behind closed doors.  At the time of writing this article, it was also announced that the Premier League, the Football League and the Women’s Super League have all been suspended until 3 April.  There is also consideration of Euro 2020 being postponed until 2021 and the Olympic Games and Glastonbury are all under threat.

Many countries are taking significant steps to restrict movement and travel, with Italy and China being the most prominent because of the scale of the virus in those countries.  The Republic of Ireland has closed all its schools, Belgium has closed most schools and restaurants, Portugal will be shutting its’ schools from next week and the USA has suspended travel from most European countries.  Italy has seen deaths now surpass 1,000 and a number of high-profile people including Tom Hanks, the Arsenal football manager, the UK’s Health Minister and the chief executive of telecoms company BT Group all being diagnosed with the virus in the past few days.

So, what next for the UK and UK employees and employers?  Currently the advice and important information is as follows:

The main government page for up to date information 

https://www.gov.uk/guidance/coronavirus-covid-19-information-for-the-public.  This page is being updated on a daily basis.   

General health advice and self-isolation

If any worker or employee has a high temperature or a new continuous cough, they should self-isolate for 7-days.

Travel advice and self-isolation

The government advice relating to travel and consequential requirements to self-isolate are at https://www.gov.uk/guidance/travel-advice-novel-coronavirus and https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance.  Please note the previous government advice at https://www.gov.uk/government/publications/covid-19-specified-countries-and-areas (“Specified Countries and Areas with Implications for Returning Travellers or Visitors Arriving in the UK in the last 14 days”) was withdrawn yesterday (12 March 2020).

The most significant implication of this is that the government advice relating to self-isolation in most cases has changed from 14 days to 7 days.  The 14-day period is limited to those who have had exposure to a confirmed case but have not shown symptoms.  The reason provided by the government for this change is that most people will no longer be likely to transmit the virus 7 days after the onset of symptoms. If symptoms persist past 7 days, individuals are informed that they should contact NHS 111 online.

Until yesterday (12 March), the focus of self-isolation had been on where the individual had visited.  Whilst some of this advice remains in place (those who have returned from Hubei Province, including Wuhan, Iran, Daegu or Cheongdo in the Republic of Korea, and any area within Italy under containment measures in the last 14 days should avoid attending work) this has not been amended in recent days to include other countries.  Rather, the focus of the advice is now very much on whether individuals have symptoms (initial 7-days self-isolation) or have been in contact with a confirmed coronavirus case or not (14 days self-isolation).

Sick pay and changes to the law

New Statutory Sick Pay Regulations come into force today (as announced in the Budget on Wednesday) that provide that all employees and workers will be entitled to receive SSP in the event that they are required to self-isolate in accordance with the government guidance. 

The 3 waiting days for SSP have been removed so that sick pay will commence from day 1, and not day 4.

Employers are encouraged to use their discretion when applying their normal rules for evidence of sickness.  Of course, most employers require GP certification after 7-days of absence.  In circumstances that someone is self-isolating and need to do so beyond 7-days, they cannot visit their GP and accordingly it may be unreasonable for an employer to withhold sick pay in such circumstances.  In the budget the government stated that a temporary alternative to the normal fit note would be introduced and used by employees who need to self-isolate and that this can be obtained via notification to NHS 111 and used as evidence for work purposes.

These changes do not change the rules that apply to your own company sick pay schemes, but given the change in advice relating to self-isolation (see above) most instances of self-isolation will be in circumstances where individuals are exhibiting symptoms and accordingly, in light of public health advice, will not be fit to attend work and contractual sick pay will almost certainly need to be paid as normal.

The exception to this is where individuals need to self-isolate because they have been in contact with someone who has coronavirus.  This requires self-isolation of 14 days and of course in this instance the individual may not actually be unwell and there is therefore a potential argument that contractual sick pay will not be payable (although SSP will be as per above).  Employers will need to take a sensible and practical approach to such instances. 

What if we need to turn an employee away or shut our site?

In some instances an individual may arrive at work and you may have concerns about the risk that they present to others because of the areas that they have recently travelled to and/or the people that they have been in contact with.  In such circumstances an employer may decide that in order to protect their workforce from the risk of contamination that they refuse to allow an employee to attend work.

In cases where:

  • The employee is not unwell;
  • The employee is not showing signs of any symptoms as set out by the government;
  • The advice from the government does not trigger a requirement for self-isolation

Then the employer will be contractually obliged to pay the employee in full in the normal way.  Of course, such decisions are based upon a risk analysis by the business on a case by case basis. 

If the business needs to shut the site then, again, you will need to pay your employees in full unless:

  1. You have the contractual right to lay off (of at least 1 day) or put employees on short time working (when hours are reduced).  Employers are limited to doing this for a maximum of 4 weeks in a row or 6 weeks in a 13-week period.  An employer will need to pay their employees “guarantee pay” which is currently £29 per day for a total of 5 days (a maximum of £145).  The rest of the lay-off would be without pay. You cannot take this step unless you have the specific contractual right to do so.  If you would like us to check your contracts, then please get in touch.
  2. You reach an agreement to do so.  You can agree, either on an individual or collective basis, to send employees home without pay.  However, the likelihood of obtaining that agreement is, in our view, low. 
  3. If you have a collective agreement with a trade union that permits you to negotiate terms on a collective basis then you may have greater scope for achieving an agreement of this nature. 
  4. In conjunction with the agreement above, you may consider taking such steps as ‘banking hours’.  This would provide that the employees get paid normally, do not attend work but that the hours that they do not work are ‘banked’ and can then be called upon by the employer in future months to work those hours in addition to their normal hours without receiving extra payment (overtime) as would normally be the case.  This is often seen as an appropriate compromise where you feel that it is necessary to send employees home.
  5. You can also provide for voluntary unpaid leave to be taken (or perhaps leave at a reduced rate of pay). 

A flexible approach to working

Employers are being encouraged to take a flexible approach to work to limit risks.  This includes permitted – and perhaps even encouraging – employees to work from home where it is possible for them to do so.  By maximising home working employers will naturally reduce the level of risk that the business (and therefore its employees) are exposed to. 

You may wish to use and rely upon video conferencing to undertake meetings. 

Given that there is likely to be an increase in the levels of sickness absence you may need to increase the level of overtime that is worked by the remaining employees.  When doing so you will need to ensure that the appropriate steps are taken to ensure that those employees are still obtaining the appropriate rest breaks and at a minimum in compliance with the Working Time Regulations. 

What if schools close?

The flexible approach to resourcing the business and where people undertake their work will potentially become essential if the UK government follows the lead of many other national governments by closing schools.  If the schools close there will be a knock-on effect on parents who are almost certainly then either going to need to be at home.  The options are then either:

  • The employee works from home;
  • The employee takes holiday;
  • If they are unable to work from home and do not with to take holiday they should be granted unpaid time off for dependents or unpaid parental leave.

This is of course an ever-changing situation.  If you need any advice or assistance, then please contact us at:

Matt Huggett:  Mobile 07496 126 266  Desk: 0117 332 8333 

matthew.huggett@carbonlawpartners.com

and ensure that you regularly check the government advice information at:

https://www.gov.uk/guidance/coronavirus-covid-19-information-for-the-public

https://www.gov.uk/guidance/travel-advice-novel-coronavirus  https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance

This information is correct as at 13 March 2020.