Disclaimer: These FAQs are intended to provide information and guidance on the HR and employment law implications of the Covid-19 situation. They do not constitute legal advice and should not be relied upon as such.
Employees unable or unwilling to attend work
Last updated: 14/01/2021
1. What if an employee refuses to come to work because of concerns about coronavirus? Is this grounds for disciplinary action? (Last updated 05/01/2021)
On 4 January 2021, the Government announced that England would enter a third national lockdown. Under the lockdown rules, everyone must work from home unless they cannot reasonably do so. However, the guidance acknowledges that working from home may not always be possible in all sectors – including manufacturing – and specifies that employees who cannot work from home are permitted to leave home to attend the workplace.
In the circumstances, however, it is important to acknowledge that some employees may be unable to come into work. For example, the advice for those who are clinically extremely vulnerable (i.e. the approximately 1.5 million individuals who are most at risk of severe and life-threatening illness if they contract Covid-19, and who are advised by the NHS to ‘shield’ during the lockdown period), is that they should not attend the workplace. Accordingly, if such employees cannot work from home in their normal roles, employers should consider whether they can take on alternative duties on a temporary basis that would facilitate home working. If that is not possible, furlough under the Coronavirus Job Retention Scheme (the Extended CJRS) may be an option – see further question 2, below.
Others may have particular concerns about coming into work – for example, if they:
- are not clinically extremely vulnerable but are otherwise considered clinically vulnerable (e.g. those who are at higher risk of developing severe coronavirus and/or may have compromised immunity such as those aged 70 or over, those who have an underlying condition, or those who are pregnant) and are therefore advised to take particular care and minimise their contact with others; or
- live with someone who is clinically extremely vulnerable or otherwise vulnerable whom they wish to protect.
Even employees who do not fall into any kind of vulnerable group may not be able to get to work due to the unavailability of safe means of transport. And even if they are able to travel to work safely, employees may understandably be concerned about their safety in the workplace.
Where an employee has genuine concerns, the employer should listen to them and try to accommodate them where possible. (This is important since, under sections 44 and 100 of the Employment Rights Act, employees are protected from detriment or dismissal where they leave or refuse to attend work in circumstances of danger which they reasonably believe to be serious and imminent. These protections are highlighted in the Government guidance for employees and employers on the implications and options if someone is unable to attend work due to coronavirus. That guidance notes in particular that it may be automatically unfair to dismiss an employee who is clinically extremely vulnerable, or lives with someone who is, if they have refused to attend the workplace on the basis that doing so would present such a serious and imminent danger.) Employers also have a duty to take reasonable steps to provide a safe working environment and, as described in our FAQs on Health and safety measures, there are detailed safety measures that employers should put in place to ensure this.
Note that employers also have an obligation to make reasonable adjustments under the Equality Act 2010 where someone has a disability. Employees who are clinically extremely vulnerable are extremely likely to qualify as disabled under the EqA and many employees who are otherwise considered vulnerable may do so as well. The duty to make reasonable adjustments for disabled employees is flagged in the Government guidance on working safely in factories, plants and warehouses, as is the requirement to take into account employees’ protected characteristics when making decisions, ensuring that any steps you take do not have an unjustifiable negative impact on (i.e. indirectly discriminate against) some groups compared with others. These legal obligations are also highlighted in the Government guidance for employees and employers on the implications and options if someone is unable to attend work due to coronavirus.
In this environment, we generally advise that you exercise caution and seek specific advice if you are considering taking disciplinary action against members of staff who say that they are unable to attend work.
2. What about pay for employees who cannot work from home and who are unable/unwilling to attend work due to concerns about coronavirus? (Last updated 05/01/2021)The basic starting point would be that an employee who is not ready, willing and able to work would not be entitled to be paid. However, in the context of the coronavirus pandemic, there are various factors to consider:
- Employees who are clinically extremely vulnerable to Covid-19 who cannot work from home have been eligible for SSP for any period for which they have been officially advised to shield and have therefore been unable to attend work, under special regulations that were introduced at the start of the pandemic. Since the clinically extremely vulnerable are being advised to shield again during the third lockdown in England, they would once again be entitled to SSP if they meet the other eligibility criteria. Also, as noted at question 1 above, the guidance for the clinically extremely vulnerable indicates that they may be eligible to be furloughed under the Coronavirus Job Retention Scheme (which was due to end on 31 October 2020, but has now been extended to 30 April 2021 and which we refer to as the ‘Extended CJRS’) – see question 5 of our FAQs on the Extended CJRS for more information. Note that if an employee who cannot work from home and has been away from the workplace because they were shielding (whether on furlough, SSP, or some other arrangement) says that they want to return to work, but you do not think you can make the workplace sufficiently Covid-secure for them taking into account their particular circumstances and the applicable Government guidance, we recommend that you seek advice on the most appropriate course of action.
- Other employees are not entitled to SSP unless they are self-isolating because they or someone in their household/support bubble has tested positive or has symptoms of Covid-19, they have been instructed to self-isolate under the NHS test and trace programme (see questions 5 and 6 below), or they have been advised by a doctor or clinician to self-isolate before being admitted to hospital for surgery and their self-isolation means they are unable to work (i.e. in practice, they are either actually unwell or they are well but cannot work from home). If an employer wishes to continue to provide financial support to employees who are not entitled to SSP (which they may do, for example, if the employee has particular concerns about attending work because they are considered clinically vulnerable, or live with someone who is clinically extremely vulnerable or clinically vulnerable), the employer could nonetheless treat them as if they were sick and pay them an amount equivalent to SSP (or company sick pay, if applicable). If eligible, the employer could consider placing the employee on furlough under the Extended CJRS. (The available guidance on the Extended CJRS does not specifically address the eligibility for furlough of employees who are clinically vulnerable (but not extremely clinically vulnerable) or who are otherwise reluctant to attend the workplace for a Coronavirus-related reason, but in our view it should be possible for employers whose operations have been affected by Covid-19 to furlough these employees – see questions 4 and 5 of our FAQs on the Extended CJRS for more information). If furlough is not available/appropriate, the employee could be allowed to take a period of unpaid leave, or paid annual leave, if this is realistic taking into account the employee’s role and the operational needs of the business.
- The approach an employer chooses to take to pay in this situation will depend on the facts of each individual case. Employers should be mindful of the possible impact of s.44 and s.100 of the Employment Rights Act (which protect employees from detriment or dismissal where they leave or refuse to attend work in circumstances of danger which they reasonably believe to be serious and imminent). Indeed, as noted at question 1, above, the existence of these protections are flagged in the Government guidance for employees and employers on the implications and options if someone is unable to attend work due to coronavirus. It is also possible that an employee who refuses to attend work raising safety concerns relating to coronavirus might qualify for protection from detriment and dismissal as a whistleblower. Accordingly, if you are considering withholding any pay from an employee who is unwilling to attend work due to safety concerns about coronavirus, we suggest you seek advice on your particular situation.
(See also question 3 below, for particular considerations applicable to pregnant employees.)
3. What is the position for pregnant employees – should they attend work? (Last updated 05/01/2021)
- assess workplace risks;
- alter the employee’s working conditions or hours of work to avoid any significant risk;
- where such alteration is not reasonable, or would not remove the risk, offer suitable alternative work on terms that are not substantially less favourable; and
- where suitable alternative work is not available, or the employee reasonably refuses it, medically suspend the employee on full pay.
With this in mind, as the Covid-19 situation continues to evolve, it would be advisable for employers to carry out a risk assessment for all pregnant women, to identify the risks and consider what measures can be put in place to protect them.
Government guidance on Covid-19 for pregnant employees reiterates the importance of conducting a risk assessment and specifies that pregnant employees should only continue working if the risk assessment advises that it is safe to do so. While this applies to all pregnant employees, the guidance advises a particularly precautionary approach for employees who are 28 weeks pregnant and beyond, or who have underlying health conditions that place them at greater risk of severe illness from coronavirus.
4. How should employers accommodate employees who cannot work as usual due to childcare issues? (Last updated 14/01/2021)
During the third lockdown in England, nursery and early years care settings remain open for all (although attendance at and provision of their services are likely to be affected, as is other childcare provision). Primary and secondary schools are closed except for vulnerable children and the children of critical workers, and the lockdown guidance indicates that this will continue until February half-term.
(With regard to the children of critical workers, the Government’s list of critical sectors and roles is not especially detailed and describes quite broad groups of workers. Whether a particular employee’s role would be included is essentially a matter of judgment. An earlier version of the guidance on critical workers, that applied during the first lockdown in 2020, advised employees who thought they fell within the critical sectors to confirm with their employer that, based on their business continuity arrangements, their specific role was necessary for the continuation of an essential public service. While this recommendation does not appear in the current guidance, we think it remains a sensible approach.)
In view of this, employers may need to give further consideration – in relation to employees with young children/children of school age – to: whether home working would be suitable (bearing in mind that under the lockdown rules, everyone should work from home anyway unless they cannot reasonably do so – on which, see question 1, above); what flexibility they can offer on hours in order for employees to work around their children’s demands on their time; what proportion of their workforce may need to take time out; and how they should respond when employees find themselves unable to work/attend the workplace at short notice. Below we consider various options for dealing with the impact of childcare on employees’ ability to work as usual.
The guidance on the Coronavirus Job Retention Scheme (‘Extended CJRS’) states that employees can be furloughed where they are unable to work because they have caring responsibilities resulting from Coronavirus, including looking after children. The possibility of furlough in these circumstances is also flagged in the Government guidance for employees and employers on the implications and options if someone is unable to attend work due to coronavirus. In view of this, employers could consider placing employees on furlough where they have to stay at home/are unable to work because they have to look after a child whose school is closed and/or whose nursery/childcare is affected – see question 5 of our FAQs on the Extended CJRS for more information.
Sick leave and pay
If an employee’s child develops symptoms of Covid-19, the employee will also be required to self-isolate and will therefore be entitled to SSP (and potentially also company sick pay) if their self-isolation means they are unable to work – see questions 5, 7 and 9 below.
Employees have a statutory right to a reasonable amount of unpaid time off to deal with an emergency involving a dependent (emergency leave). “Dependent” includes a spouse, partner, child or parent, or a person who lives with the employee (but not a lodger). Employees wishing to take emergency leave 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.
The right to take emergency leave is a right to a ‘reasonable’ amount of time off. It is intended not as a long-term solution, but rather to allow an employee to deal with an immediate problem and put other care arrangements in place. Ordinarily, it is considered reasonable for an employee to take one or two days off to try to arrange alternative childcare. While finding alternative childcare in the current circumstances could be tricky, it is, for example, unlikely to be considered ‘reasonable’ for employees to remain off work on emergency leave until schools reopen – which, as noted above, is not expected to be before February half-term.
Parental leave, other unpaid leave and annual leave
One possible option if the parent cannot work from home could be a period of unpaid statutory parental leave, as employees are entitled to take up to four weeks of such leave per child, per year, or period of unpaid leave outside the statutory scheme.
Alternatively, employees could take paid annual leave if business circumstances permit – although with schools not expected to reopen before February half-term, and coronavirus disruption set to last much longer than that, this is unlikely to cover the entire period impacted by additional childcare requirements.
Flexible working arrangements may be a useful tool. It might be that agreement can be reached for employees to work flexibly (whether from home or at the workplace), with staggered start and finish times or reduced hours to enable employees to drop off and collect their children from alternative care providers, or to work around the supervision of their children at home. If reduced hours are needed, it may be worth considering whether it would be appropriate to make use of the Extended CJRS whilst it is available, placing employees on flexible furlough so that they continue to receive some pay for their non-worked hours. See our FAQs on the Extended CJRS for more information.
5. If employees self-isolate, are they entitled to statutory sick pay? (Last updated 05/01/2021)
Government advice identifies relevant symptoms and provides that individuals who have a high temperature or a new, continuous cough, or who have noticed a change in or loss of their sense of taste or smell, should self-isolate for 10 days, and people who live with them/are part of their support bubble should self-isolate for 10 days, even if they have no symptoms – see the Government guidance for details of how this works.
Government guidance to business has suggested that employers “use their discretion” when requiring written evidence of incapacity for work in these unprecedented circumstances. Those who have Covid-19 symptoms or who are advised to self-isolate because they or someone in their household/support bubble have symptoms can obtain an “isolation note” by visiting NHS 111 online and completing an online form, rather than visiting a doctor.
This replaces the usual need to provide a ‘fit note’ after seven days of sickness absence. The Government has also confirmed that a GP fit note will not be required as evidence for eligible employers to be able to reclaim Covid-19-related SSP from the Government under the Coronavirus Statutory Sick Pay Rebate Scheme.
6. What is the NHS test and trace programme and what is the position if an employee has to self-isolate under it? (Last updated 05/01/2021)
As noted at question 5, above, employees who self-isolate because they have been advised to do so under the NHS test and trace programme and are unable to work as a result (i.e. in practice, they cannot work from home) will be entitled to receive SSP (and, if relevant, potentially company sick pay), as regulations deem them to be incapable of work for SSP purposes. SSP for such coronavirus-related absence is payable from the first day of absence.
The Government guidance on NHS test and trace for employers emphasises that it is an offence for employers knowingly to allow an employee who has tested positive for Covid-19 or been told to self-isolate under the NHS test and trace programme to come into work or work anywhere other than their own home for the duration of their self-isolation period. Breach of the rules could result in a fine starting from £1,000 (see further question 8, below).
The guidance notes that employers should allow employees who are required to self-isolate to work from home if they remain well and if it is practicable to do so, flagging that this might include finding alternative work that can be undertaken at home during the period of self-isolation. Employees who work from home should continue to receive their normal pay. For self-isolating employees who cannot work from home, the guidance makes clear that employers must ensure they are receiving sick pay. It also recommends that employers give such employees the option to use their paid leave days to cover the period of self-isolation if they prefer.
7. What if an employee who has already self-isolated once now needs to do so again? (Last updated 05/01/2021)It is entirely possible that some employees who have already had a period of self-isolation and have since returned to work may need to self-isolate again. We think this is an increasingly common issue, particularly given the rise in cases and that individuals must self-isolate with symptoms that may turn out not to be the virus (see question 5, above), e.g. seasonal colds/flu. Employees may also be instructed to self-isolate under the NHS test and trace programme (see question 6, above) if they have been in close contact with someone who has tested positive for the virus – and, given the breadth of the definition of close contact, it is entirely possible that this could happen multiple times. Indeed, the guidance on self-isolation flags that an individual who develops Covid-19 symptoms at any time after ending a previous period of self-isolation must self-isolate again – as must those in their household/support bubble, and the guidance for people who are contacted under the test and trace programme also acknowledges the possibility of multiple periods of self-isolation, e.g. where someone who completed a period of self-isolation under test and trace develops Covid-19 symptoms him/herself at a later date and needs to self-isolate as a result.
On the issue of pay, there is nothing in the wording of the regulations setting out when someone is deemed incapable of work for SSP purposes in relation to Covid-19 that would appear to restrict entitlement to a single round of self-isolation. Accordingly, our view is that an employee who has to self-isolate more than once would be entitled to SSP (and potentially company sick pay, if relevant) on each occasion.
While an employer can make more than one claim for SSP under the Coronavirus Statutory Sick Pay Rebate Scheme (the SSP Rebate Scheme) for a given employee, the guidance on the SSP Rebate Scheme specifies that they cannot claim for more than two weeks in total.
8. What if an employee does not want to self-isolate when required, or if we need an employee to come to work when they are meant to be self-isolating? (Last updated 05/01/2021)
It is a legal requirement for individuals who have tested positive for Covid-19, or who have been instructed to self-isolate under the NHS Test and Trace programme, to self-isolate and they can be fined if they do not do so. In addition, the relevant regulations require individuals who are required to self-isolate and due to work during the self-isolation period to inform their employer of the self-isolation requirement as soon as reasonably practicable and in any event before the individual is next due to work. (With regard to agency workers, they must notify either the agency or the hirer of the fact that they are required to self-isolate, and the person whom they notify must pass this information to the other parties involved.)
As flagged in the Government guidance for employees and employers on the implications and options if someone is unable to attend work due to coronavirus, it is an offence punishable by a fine for an employer who is aware of an individual’s requirement to self-isolate knowingly to allow the individual to attend any place other than the place where the individual is self-isolating for any purpose relating to their employment. Company directors can be personally liable if the offence is committed with their consent or connivance or is attributable to their negligence.
Fines start at £1,000 but could increase up to £10,000 for repeat offences and for the most egregious breaches. Note that, when the Government announced these changes, it indicated that preventing others from self-isolating would be seen as an egregious breach, giving the example of a business owner who threatens self-isolating staff with redundancy if they do not come to work.
In view of these regulations, an employer should not allow any employee whom it knows is required to self-isolate to attend work for any reason during the self-isolation period. Self-isolating employees who are well enough and are able to do so should be enabled to work from home wherever possible. (For information on employees’ entitlement to pay while self-isolating, see questions 5, 6 and 7 above, and 9 and 10, below.)
Note that the requirement for individuals to notify their employer of the fact that they have to self-isolate and the prohibition on employers knowingly allowing such individuals to attend the workplace also apply in respect of employees who are required to self-isolate on return from overseas travel. (See our FAQs on ‘Managing employees during the pandemic’ for further details on quarantine requirements.)
Even where an employee’s self-isolation is not a strict legal requirement under the regulations referred to above, (e.g. self-isolation due to symptoms without a positive test), they should of course not be attending the workplace. Indeed, the guidance on working safely in factories, plants and warehouses advises employers not to allow anyone with symptoms of Covid-19 to enter the workplace – see our FAQs on ‘Health and safety measures’ for further details.
9. Must employers pay company sick pay to employees who are self-isolating? (Last updated 05/01/2021)Many employers operate company sick pay schemes that provide full pay (or pay significantly higher than SSP) for a specified period of sickness absence.
From a wellbeing and employee relations perspective, employers would usually want to continue to their company sick pay schemes throughout the Covid-19 pandemic. However, employers are understandably concerned about the cost of maintaining their company sick pay schemes in view of the sheer number of employees who are having to take time off sick as a result of Covid-19, whether because they have tested positive or have symptoms, because they are required to self-isolate where someone in their household/support bubble has tested positive or has symptoms, or because they have been advised to self-isolate under the NHS test and trace programme.
Alternatively, employers might wish to take the view that company sick pay is not payable in cases of self-isolation where an employee is not actually ill, on the basis that any company sick pay policy was not designed to – and does not – cover such circumstances. However, there may be practical difficulties with this, e.g. in relation to the medical evidence you can realistically demand in the current circumstances. In addition, such an approach may create employee relations issues and involve questions of interpretation of the company scheme/contractual change.
10. Are employees who have to self-isolate entitled to any other payments? (Last updated 05/01/2021)
The Government has introduced a Test and Trace Support Payment scheme for individuals on low incomes who are required to self-isolate. This scheme is currently set to run until 31 January 2021. It provides eligible individuals with a one-off payment of £500, payable by the local authority. Individuals will be eligible if they:
- live in England;
- have been asked to self-isolate by NHS Test and Trace or the NHS Covid-19 app, either because they have tested positive for Covid-19 or because they have recently been in close contact with someone who has tested positive;
- have responded to messages from NHS Test and Trace to provide their contact details and, where they have tested positive, the details of their contacts;
are employed or self-employed;
- cannot work from home and will lose income as a result of self-isolating; and
- are currently receiving, or are the partner of someone in the same household who is receiving, at least one of the following benefits: Universal Credit, Working Tax Credits, income-based Employment and Support Allowance, income-based Jobseeker’s Allowance, Income Support, Pension Credit or Housing Benefit.
If an individual does not meet the criteria for the Test and Trace Support Payment because they are not receiving / are not the partner of someone in the same household who is receiving one of the relevant benefits, they may be eligible for a £500 discretionary payment if they meet all of the other criteria listed above, are on a low income and will face financial hardship as a result of self-isolating.
Note that local authorities may also set their own additional criteria for eligibility for a discretionary payment.
Individuals who are eligible for either a Test and Trace Support Payment or a discretionary payment will receive the £500 on top of any benefits and SSP that they currently receive. The payments are subject to income tax, but not to NICs.
Individuals wishing to apply for the Test and Trace Support Payment or a discretionary payment should contact their local authority. They will need to provide their NHS Test and Trace Account ID, proof of receipt of one of the qualifying benefits, a bank statement and proof of employment or self-employment. Applications can be made up to 14 days after the period of self-isolation has ended.