As of 24 February 2022, the government guidance on Covid which can be found here states that you will not be legally required to self-isolate if you test positive for Covid19. The government guidance is to stay home "if you can" and avoid contact with other people. This has caused some confusion amongst businesses as to whether staff can be required to stay at home with Covid, whether they are entitled to sick pay, and what happens if someone with Covid wants to work and you don't want them to or vice versa.
Can I require my staff to stay home?
It is understandable that many businesses will want an employee who either has Covid or has been exposed to Covid to remain away from the workplace, especially considering the employer's duty to protect the health and safety of other employees. However, now that self-isolation is not a legal requirement, the employer has to consider whether it has an express right to require the employee to stay at home. It would be unusual for there to be a right in the contract stating that the employee can attend work if they want to regardless of the circumstances and generally speaking there is no implied term requiring an employer to provide work to an employee provided the employee is continuing to be paid their full pay. Assuming therefore there are no discriminatory factors, the matter is dealt with appropriately and sensitively, it is unlikely to be a breach of the employee's contract if you require them to stay home.
However this has to be caveated by saying that this is only applicable in circumstances where the employee is receiving full pay. If an employee is ready, able and willing to work (i.e. they are not sick and they have no symptoms) they would not be entitled to sick pay, and to force them to stay at home on sick pay (especially SSP) or no pay would likely be a breach of their contract.
Ultimately this is a matter for discussion between employee and employer and employers should make clear to all employees as soon as possible what their intentions are for dealing with Covid ongoing. It may be worthwhile consulting with your staff about this as you may find the majority of your staff do not want employees who are suffering from Covid19 bringing it into the workplace.
Is an employee with Covid entitled to sick pay?
Until 24 March 2022, a person with Covid, whether they have symptoms or not, is deemed incapacitated for the purposes of being entitled to statutory sick pay. This means that a person with Covid without symptoms may still receive SSP until 24 March (but from 17 March 2022 the government will not repay the SSP to the employer).
An employee with Covid symptoms who is too unwell to work will be entitled to SSP, and usually to contractual company sick pay though this is governed by the terms of their contract and your staff handbook.
Whether an employee without any symptoms who is required to self-isolate (whether by government guidance or your company policies) will be entitled to more than SSP i.e. their full usual salary, depends again on the interpretation of whether they are able to work, and in this regard there is little case law to date. However it should be warned that an employer who has a policy of only paying SSP for employees who are self-isolating without symptoms run the risk of those employees attending work anyway, or failing to inform you that they have been diagnosed or exposed to Covid19 because they are unable to afford to stay at home on SSP. Employers should think carefully about the position on pay during self-isolation in these circumstances.
What happens if someone with Covid wants to work and I don't want them to?
Again this will depend on how severe their symptoms are and whether they can be reasonably considered sick or able to work. If the employee is able to work from home, and you prevent them from doing so you would probably need compelling reasons as to why this could not be achieved with their role. However if they are unable to work from home, as above, there is no general right for you to provide work provided that the employee is not deducted any of their pay by your decision for them to remain at home.
If, in breach of your instructions or policies, a Covid-positive person attends work, you may consider disciplinary action, but I would advise taking specific advice before doing so.
An employee with Covid doesn't want to work and I want them to, what should I do?
In circumstances where an employee with Covid is unable or refusing to attend the workplace, you must think carefully before attempting to force them to do so. Consider their reasons for refusing to do any work. If they are off sick, they should be treated like any other illness in which you would not normally force an employee to work if they are too ill. In these circumstances, the employee is reasonably entitled to sick leave and sick pay, and any detriment that they suffer because they have enforced this right is likely to be a breach of contract.
If you force an employee into work with Covid, they or other members of staff, may have a right to leave work in order to avoid the danger of contracting Covid. If you disciplined or dismissed because of their decision to leave, you would leave yourself exposed to claims for breach of contract or automatic unfair dismissal. Employers should seek specific advice and think very carefully before attempt to compel an employee or worker with a positive case of Covid into the workplace.
Should you have any queries about the issues raised in this article, or on any employment related matter, please contact our expert Arvin Sandhu by email or on 01494 893 542.