|Coronavirus (COVID-19) FAQS|
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: 07/07/2020
1. What if an employee refuses to come to work or return to work because of concerns about coronavirus? Is this grounds for disciplinary action? (Last updated 23/06/2020)
As noted above, employees who cannot work from home are permitted to leave home to attend work and an employer whose business has remained open, or is reopening, may need them to do so.
However, some employees may be unable to come into work – for example, those who are ‘shielding’ (i.e. approximately 1.5 million extremely vulnerable individuals who are most at risk of suffering severe and life-threatening symptoms if they contract Covid-19 and to whom the NHS has written individually to advise them to remain at home. The Government announced on 22 June that from 1 August the guidance would be relaxed so that these individuals will no longer be advised to shield, although they should continue to follow strict social distancing measures. Accordingly, from 1 August, they will be able to return to the workplace if they cannot work from home, provided that their workplace is Covid-secure in accordance with available guidance).
Others may have particular concerns about coming into work – for example, if they:
- are not shielding but are otherwise considered vulnerable (i.e. 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 – full list available here- see section 7) and are therefore advised to stay at home as much as possible and to take particular care to minimise contact with those outside their household; or
- live with someone who is shielding 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, as noted at question 2 below, 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.) 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 shielding are extremely likely to qualify as disabled under the EqA and many employees who are not shielding but 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.
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 or return to work due to concerns about coronavirus? (Last updated 07/07/2020)The basic starting point would be that an employee who is not ready and willing to work would not be entitled to be paid. However, in the context of the coronavirus pandemic, there are various factors to consider:
- For employees who cannot attend work because they are shielding, Government guidance states that it is good practice to support these employees to stay at home. Where working from home is not possible, therefore, employers are likely to want to provide financial support. One way that employers may have been able to do this was to furlough these employees under the Coronavirus Job Retention Scheme (the Scheme), as the Government guidance on furlough expressly states that such leave is available for those who are shielding, although the general eligibility criterion regarding the adverse impact of Covid-19 on the employer’s operations would still apply. The Scheme closed to new entrants on 10 June, so if an employer had not furloughed a shielding employee before that date, they would be unable to do so now. However, shielding employees who had already been furloughed can remain on furlough while the Scheme is in operation. It is due to end on 31 October and the financial support it provides will be gradually reduced from the end of July – see our FAQs on ‘Furlough under the Revised Coronavirus Job Retention Scheme’ for details. An alternative where furlough was/is not available could be to pay shielding employees sick pay, since they are entitled to receive SSP under regulations brought into force on 16 April. The explanatory notes to these regulations state that the SSP entitlement is intended as a safety net for individuals in cases where their employer chooses not to furlough them and does not have other suitable policies in place (e.g. the ability to work from home, or the provision of special leave). Note that the Government announced on 22 June that, from 1 August, the guidance for clinically extremely vulnerable individuals would be relaxed so that they will no longer be advised to shield, although they should continue to follow strict social distancing measures. Accordingly, from 1 August, these individuals will be able to return to the workplace if they cannot work from home, provided that their workplace is Covid-secure in accordance with available guidance. On 3 July, the Government introduced regulations which provide that shielders’ entitlement to SSP will come to an end if a notification to end shielding is issued. We assume that this means shielders will no longer be entitled to SSP from 1 August. However, the regulations also provide for the possibility that such individuals may become entitled to SSP again if they are once again notified that they are required to shield. That may occur, for example, if lockdown measures are reintroduced to tackle a second wave of the virus. It is important to note that individuals who have been shielding are advised to remain cautious after 1 August as they are still at risk of severe illness if they catch coronavirus, so the advice is to stay at home where possible and, if they do go out, follow strict social distancing. Some employers might wish to re-evaluate their approach after that date – although we anticipate that employees who have been shielding will remain eligible for furlough while the Revised Scheme remains in place, even after the relaxation of the guidance to allow them to return to the workplace.
- Other employees are not entitled to SSP unless they are self-isolating because they or someone in their household/support bubble has symptoms of Covid-19, or they have been instructed to self-isolate under the NHS track and trace programme (see questions 6 and 6(a) below). 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 he/she is vulnerable, or lives with someone who is shielding or 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 have considered furloughing the employee, prior to 10 June. However the Scheme closed to new entrants after that date so if an employer had not furloughed an employee by then, they would be unable to do so now. However, employees who had already been furloughed can remain on furlough while the Scheme is in operation. It is due to end on 31 October and the financial support it provides will be gradually reduced from the end of July – see the FAQs on ‘Furlough under the Revised Coronavirus Job Retention Scheme’ 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 choses to take 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). 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 still attend work? (Last updated 16/06/2020)As noted above, Government guidance is that vulnerable people, including pregnant women, should take particular care to minimise contact with those outside their household, and this means that such individuals may have particular concerns about attending work. In addition, in respect of pregnant employees, employers are under a specific legal obligation to:
- 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, to medically suspend the employee on full pay.
4. How should employers accommodate employees who cannot come to work because their child’s school is closed? (Last updated 01/07/2020)
All schools closed to pupils on Friday 20 March, save for the children of key workers such as NHS staff, school staff and delivery drivers (see further question 5, below). This decision has inevitably had a significant impact on the workforce in businesses that remained open and will have a similar impact on those that are now reopening.
Since 16 March, official advice has been that anyone who can work from home should do so. Following the announcement of school closures, employers whose business remained open had to consider whether home working would be suitable where employees had young children in the house; how much home-working they could accommodate; what flexibility they could offer on hours in order for employees to work around their children’s demands on their time; and what proportion of their workforce may need to take time out. Employers who had previously closed but who are now reopening their business will need to consider these same issues, as it is still unclear when all children will be able to return to school.
Employees have a statutory right to a reasonable amount of unpaid time off to deal with an emergency involving a dependent. “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.
Employees who were working when schools first closed, or who are required to return to the workplace at short notice when their employer’s business reopens and schools are still closed, could potentially take emergency leave to care for their children. However, it is important to note that 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. It could be reasonable for an employee to take one or two days off to try to arrange alternative childcare – although finding affordable alternative childcare in the current circumstances could be problematic. For example, employees are unlikely to be able to ask grandparents to take on caring responsibilities given advice that the over 70s take particular care to minimise their contact with those outside their household.
While some schools have been allowed to reopen for pupils in certain year groups, not all schools will have been able to put the necessary safety measures in place and not all parents will have necessarily felt comfortable sending their children back. Schools that are open to children in specified year groups may not be providing the full day’s tuition to all pupils every day due to space and staffing limitations and social distancing requirements. In addition, some parents who have been able to send their children in will also have children in other year groups. While the Government has announced an intention for all schools to reopen to all pupils from September, it is unlikely that school opening will extend further before the summer holidays. Given the length of time they would be likely to need to remain off work, it would not be reasonable for employees to simply stay on emergency leave until such time as their children can return to school.
Longer term arrangements will require both employers and employees to be flexible. It might be that arrangements can be made for employees to work flexibly while schools remain closed, with staggered start and finish times or reduced hours to enable employees to drop off and collect their children from alternative care providers. Employers may need to make broader changes to shift patterns to facilitate this. If doing so, they should consider how such changes will fit with any applicable safety measures they put in place to minimise contact between different groups of staff (see the FAQs on ‘Health and safety measures’). They will also need have to be mindful of the need to consult with employees and seek their agreement to any contractual changes, as well as the risks of imposing contractual changes without agreement. Make UK members can access guidance on changing terms and conditions in the resources section of our website.
If changes to employees’ working arrangements to fit around their childcare needs would not be feasible, employees could take paid annual leave, or up to four weeks’ unpaid parental leave per child per year. Alternatively, the employer may be able to agree with the employee that they should be furloughed (although this will only be possible if the employee has been furloughed before, since the Scheme is now closed to new entrants) – see the FAQs on ‘Furlough under the Revised Coronavirus Job Retention Scheme’ for more information.
Note that if you subject an employee to detrimental treatment for taking emergency time off, or dismiss them or subsequently select them for redundancy because they took, or sought to take, emergency leave then they will be entitled to make a claim of detrimental treatment or unfair dismissal to an employment tribunal regardless of their length of service.
5. Where can we find out which key workers can continue to send their children to school? (Last updated 16/06/2020)Government guidance on critical workers who can access schools identifies a list of sectors and roles that are considered critical to the Covid-19 response. The guidance encourages critical workers to send their children to school.
The list of critical sectors and roles is not especially detailed and describes quite broad groups of workers.
Parents to whom this applies and whose school is closed are advised to contact their local authority, who will seek to redirect them to a local school in their area that their child, or children, can attend.
6. If employees self-isolate, are they entitled to statutory sick pay? (Last updated 07/07/2020)Where an employee self-isolates because they, or someone in their household/support bubble, has symptoms of Covid-19, they will be entitled to receive statutory sick pay (SSP) (and, if relevant, company sick pay), as they will have been deemed to be incapable of work, under regulations introduced to deal with SSP entitlement in the context of coronavirus self-isolation. SSP for such coronavirus-related absence is payable from the first day of absence.
If an employee chooses to self-isolate where neither they nor anyone in their household/support bubble has symptoms of Covid-19, they will not be legally entitled to any sick pay (unless they are shielding, in which case they are currently entitled to SSP (although see question 2, above, regarding the forthcoming relaxation of shielding guidance), or they have been advised to self-isolate under the NHS test and trace programme – see question 6(a), below). Note that the Government guidance on SSP confirms that employees who are required to self-isolate when returning to the UK from abroad under quarantine provisions are not entitled to SSP if they do not need to self-isolate for any other reason. See our FAQs on ‘Managing employees during the pandemic’ for details of the quarantine requirements. See also question 2, above, for a broader discussion of pay for employees who are unable or unwilling to come to work for a coronavirus-related reason.
6(a). What if an employee has to self-isolate under the NHS test and trace programme? (Last updated 28/05/2020)
Employees who self-isolate because they have been advised to do so under the NHS test and trace programme will be entitled to receive SSP (and, if relevant, 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.
However, Government guidance for employers notes that employers should allow such employees to work from home if they remain well and if it is practicable to do so. The guidance indicates that this might include finding alternative work that can be completed 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.
The guidance acknowledges that the requirement for employees to self-isolate under the test and trace programme may be disruptive, but emphasises the importance of employers supporting this. It notes that the programme is intended to support business and economic recovery and says that employers should encourage employees to heed any notifications to self-isolate and provide support to these individuals when in isolation, as well as continuing to follow the guidance on working safely during coronavirus to ensure safety in their workplace (on which, see our FAQs on Health and safety measures).
7. What if an employee who has already self-isolated once now needs to do so again? (Last updated 07/07/2020)Now that the guidance on self-isolation has been in place for some time, some employees who have had a 7 or 14 day period of self-isolation because they or someone in their household had symptoms of Covid-19 will have now returned to work. The question may then arise, what if an employee who has already self-isolated needs to do so again, e.g. because they develop symptoms, or because another person in their household/support bubble does? We think this is likely to be a relatively common issue, particularly given that individuals must self-isolate with symptoms that may turn out not to be the virus. Employees may also be advised to self-isolate under the NHS test and trace programme (see question 6(a), 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, guidance for people who are contacted under the test and trace programme acknowledges the possibility of multiple periods of self-isolation, e.g. where someone who completed 14 days’ self-isolation under test and trace develops Covid-19 symptoms him/herself at a later date and needs to self-isolate as a result.
It is also worth noting that, from 8 June, individuals entering the UK from overseas, including British nationals and residents, are required to self-isolate for a 14 day quarantine period unless certain exceptions apply. The Government guidance on SSP confirms that employees who are required to self-isolate when returning to the UK from abroad under quarantine provisions are not entitled to SSP if they do not need to self-isolate for any other reason. See the FAQs on Managing employees during the pandemic for further details of the quarantine requirements.
8. Must employers pay company sick pay to employees who are self-isolating? (Last updated 07/07/2020)
Many employers operate company sick pay schemes that provide full pay for a specified period of sickness absence. From a wellbeing and employee relations perspective, employers would want to continue to provide company sick pay 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 likely to have to take time off sick as a result of Covid-19, whether because they have symptoms, because they are required to self-isolate where someone in their household/support bubble has symptoms, or because they have been advised to self-isolate under the NHS test and trace programme.
Some employers are therefore considering suspending the operation of company sick pay for the duration of the Covid-19 crisis in order to save costs. However, as a contractual change, this would require employee agreement – and unless a company is facing serious and immediate financial problems, it is likely to be difficult to persuade employees to give up such a valuable benefit at this time. That said, in these unprecedented circumstances, some employers might decide to take the risk of imposing the change unilaterally and face the consequences, such as breach of contract claims, at a later date.
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 contractual change.
If you are considering making changes to company sick pay (whether that involves complete suspension or differentiating self-isolation from actual sickness), we suggest that you seek legal advice on your specific circumstances to understand the risks involved.