All information in the below article is correct as at the date of publish (17 March 2020).  However due to the ongoing nature of the Coronavirus outbreak, the information below may be liable to change at any time.  

Further to our previous blog post about COVID-19 - commonly known as Coronavirus - there have been a number of developments. At the time of writing this blog post (17 March 2020) there were 1950 confirmed cases of Coronavirus in the UK (a number that has changed whilst writing this article!). The Government have released the following guidelines:-

1. Any person with a new continuous cough and/or high temperature should self-isolate for a period of 7 days;
2. Everyone should wash their hands more often than usual, for 20 seconds using soap and hot water;
3. Everyone should cough or sneeze into a tissue or their sleeve and immediately wash or sanitise their hands;
4. All regularly touched objects and surfaces should be cleaned using disinfecting cleaning products;
5. All vulnerable people are being advised to undertake “social distancing”;
6. If a member of your household becomes ill, all household members must stay at home and quarantine themselves for 14 days;
7. Finally, whilst schools are for the time being remaining open, everyone is advised to avoid gatherings and crowded places and should work from home where they can.

It is this last point that is causing much concern for many employers around the country. There are a number of issues with working from home and with maintaining businesses in light of the potential disruption.

What about employees that cannot work from home?

Under the current guidance, the government is suggesting that people should "work from home if they can". Therefore, for employees who cannot work from home, and have no other reason to be self-isolating (in which case they will be entitled to statutory sick pay as set out below), they may continue attending work as normal.

Ultimately should the time come when the Government recommends a wide-spread quarantine, it will be an unfortunate reality that many employees simply cannot work.  Some jobs cannot be done from an employee’s home. At this stage, there is no information about the Government’s view on paying employees in that situation, but our preliminary view would be that in circumstances where there is a wide-spread quarantine, your employees would not be ‘ready, willing and able’ to work and therefore your obligation to pay them is likely to be suspended.  However that may change in line with Government guidance.  If you do choose to pay staff who are isolating, we would suggest that you ensure your policies are discretionary and kept under review so that your business can adapt with the ever-changing situation.

How do I know that my staff are actually working from home?

This is perhaps a more difficult question, as this previous article shows, employee monitoring can open a whole host of new issues. This is something to be determined by the employer, and I would advise all employers to review their home working policies. Overall, many employers will consider that it is better to have staff working from home doing something, than doing nothing, but you could put in place regular updates e.g. by email, phone, or Skype to monitor the work that is being performed by your staff.

Can I insist that my staff work from home?

Strictly speaking, unless there is a mobility clause in the employee's contract (i.e. a clause saying that the business can require them to work from the current place of work) then there is no right for an employer to require their employees to work from home. Even when there is such a contractual right, it must be exercised reasonably.

That being said,  in employment law we have a useful "catch all" for trying to do something which is outside the contract of employment. It is really very simple, you ask the employee and get them to agree. Most employees in the current climate are likely to be understanding and some may even welcome the change to their contract.  Most will also recognise that the alternative is not likely to be that attractive!

However, there are some possible issues which are raised by working from home including health and safety and provision for equipment.

How do I comply with my health and safety obligations?

All employers have a duty to their employees to provide a safe place of work, wherever that may be. Fortunately, again, there is a simple answer. You ask the employee! If you are considering home working (particularly for employees who have not worked from home before) you simply ask them if their home is a safe place for them to work. If they say it is not, then you must talk them through the reason and consider funding some simple adaptions (in most circumstances, these are unlikely to be relatively inexpensive). If an employee’s home is genuinely unsafe for them to work, then they simply cannot work from home.

Do I need to provide employees with equipment?

Some jobs just cannot be done from home.  You cannot set up an assembly line in a factory worker’s living room. However, most jobs in this day and age can be conducted with a computer, telephone, and printer. Most employees will have these and if they do not it is a commercial decision about whether (given the relatively short term nature of this issue) to provide this equipment at a costs to the business, and particularly bearing in mind the likely economic impact of the Coronavirus and the needs of the business ongoing

Can I ask my employees to use their own equipment?

Most people will have a phone and a computer at home, therefore you might expect that the employee could use their own equipment. We would suggest that this is reasonable, and if an employee refused it would be a conduct matter (for which you could institute disciplinary proceedings). The one caveat to this that we might say is that where an employee is going to incur additional expense by working from home, it may not be unreasonable for them to refuse to use their own equipment where the employer is not making any contribution to those costs.

What can I do if my business is struggling?

Where a business is struggling and there is a reduced need for employees, you would normally find yourself in a redundancy situation. However, most employers would be reluctant to do this bearing in mind that this is, hopefully, a short-term situation. You may therefore, look into your contracts, have the right to lay off your staff, or to introduce short time.

A layoff is a temporary unpaid leave, and short time is shorter hours where the employee is expected to receive less than half their usual workload, and during which time the employee will be entitled only to be paid for the work that is actually done.

Both rights can only be (for the time being at least) exercised where there is a clear right in the written contract. We would also recommend taking specific advice before implementing either of these procedures as they can be quite complex, and if done wrong, amount to a breach of the contract and/or to the implied duty of trust and confidence.

If you do not have either right in your contracts, we would suggest that asking staff to take a period of voluntary unpaid leave, or to temporarily reduce their hours and/pay could be a reasonable alternative to redundancy to be explored with your staff.  Again, the law on this is complex and, done incorrectly, can create huge problems and therefore we would suggest seeking specific advice if this is something you are considering.

Do I have to pay staff who are working from home?

If your staff are working from home, they are entitled to be paid as normal.

What about staff who are self-isolating?

Again, this depends on whether your staff are working from home or not. If they are not, then the rule is that they are entitled to statutory sick pay or “SSP” (and in all likelihood company sick pay, to the extent that their contract entitles them to it).

Statutory sick pay is currently £94.25 each week rising to £95.85 from 6th April 2020.

The statutory sick pay rules have been changed in light of the Coronavirus outbreak. Statutory sick pay is now available from day 1 instead of day 4 for all affected individuals and is available if they have been told to self-isolate, even if they do not have symptoms.

In addition, smaller employers (those with fewer than 250 employees) will be able to claim a refund for SSP costs for up to 2 weeks per eligible employee who has been off work because of COVID-19.

What about more than one period of self-isolation?

It is conceivable that a member of staff may end up in self-isolation more than once e.g. if a member of their household is diagnosed with coronavirus and the entire family self-isolates for 14 days. It is conceivable that subsequently, a different member of the household may be diagnosed with coronavirus, requiring a second period of self-isolation.

In those circumstances, it does not appear that the employer would be able to recover more than one period of SSP from the government as the eligibility rules are that the refund is "limited to 2 weeks per employee".

Summary

Ultimately, the government is dealing with Coronavirus one day at a time, and the law is being adapted to fit as best it can. The situation is unprecedented, and we do not have, in the main, rules to deal with it. Employers should keep an eye on the government guidelines, and at all times bear in mind their responsibility to their employees to maintain their health and safety, to maintain the duty of trust and confidence, and their duty to act reasonably. We would suggest that the best advice is to be clear in your communications with your employees, and to act as reasonably as possible in the circumstances

If you have any queries regarding employment issues in light of the Coronavirus measures and how to cope with COVID-19 related absences and business changes, please do hesitate to contact Charlotte Braham in our Employment Department on 01494 893529 or charlotte.braham@allanjanes.com