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Employment

Our Employment team take a pragmatic and commercial approach to your requirements, and can assist with contracts and disputes from both employer and employee perspectives. 

If you are concerned about the impact of Coronavirus on your business, we have dedicated teams ready to help. Please contact your Gregg Latchams partner or call 0117 906 9400, email enquiries@gregglatchams.com

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What is the virus?

  • Coronaviruses are a type of viruses that can be found in animals and humans. As a group, these viruses are common across the world, however a new strain of coronavirus (2019-nCoV) was reported in Wuhan, China in December 2019.
  • The situation is changing rapidly, as the number of reported cases increases and further countries confirm cases.
  • On 30th January 2020, the UK risk level was changed from low to ‘moderate’ but this may change.
  • Typical symptoms include mild symptoms including runny nose, sore throat, cough and fever. Some individuals experience more severe symptoms and it can lead to pneumonia and breathing difficulties and, in rare cases, death.
  • More susceptible individuals at greater risk of becoming seriously ill include older people, pregnant women and those with pre-existing medical conditions.

Health and safety obligations:

Employers:

Employers have a duty to take steps that are reasonably necessary to ensure the health, safety and welfare of all their employees, including those who are particularly at risk for any reason.

Employees:

Employees also have a duty to take reasonable care of their own health and safety and that of people they work with. They must cooperate with their employer to enable it to comply with its duties under health and safety legislation.

In line with the annual flu precautions, employers should consider taking simple steps to protect their staff’s health and safety:

  • Limit work trips to China.
  • Educate staff without causing panic – send email updates based on Government guidance or display posters outlining the current situation.
  • Provide tissues and hand-sanitiser and encourage their regular use.
  • Consider displaying posters on ‘cough etiquette’, hand and respiratory hygiene and safe food practices.
  • Regularly clean frequently touched communal areas, including door handles, kitchens, toilets, showers, and hotdesk keyboards, phones and desks.
  • Ensure that anyone with coronavirus symptoms (cough, sore throat, fever, breathing difficulties, chest pain) does not come into work. If they have recently travelled back from China or have had contact with someone who has (or with someone infected with the virus), they should call the NHS and get a diagnosis.  They should not return to work until all symptoms have gone.
  • Keep the situation and government guidance review. If the situation worsens, employers may have to take additional measures such as minimising all work-related travel.
  • Consider allowing high-risk individuals to work from home, particularly if there are coronavirus cases are confirmed near the workplace.

What about pay?

If employees are quarantined as a result of a Government requirement, then they will be classed as sick and entitled to the sick pay provided in the contracts of employment.

If an employer requires staff to remain away from work (self-quarantine) then:

  • If they feel well and can work remotely, then they should be paid as normal; alternatively,
  • If they are unable to work remotely and you require them not to attend work, they will need to be paid in full for the quarantine period because they are well enough to work but you have requested them not to attend.

High-risk individuals

Currently, those at most risk of becoming seriously ill if they catch the coronavirus appear to include older people, pregnant women and those with pre-existing medical conditions such as diabetes, heart disease and respiratory or immune problems.

There is a low risk of infection for individuals in the UK at the moment, but employers should keep the situation under review.

If the outbreak worsens in the UK, you should carry out a risk assessment to gauge whether the working environment of high-risk individuals presents a risk of infection (e.g. because they will be exposed to individuals who are infected with the virus).

There is currently no vaccine for the coronavirus (unlike flu), so those at high risk cannot protect themselves.  Where necessary, precautions should be taken such as moving particular employees to a different location or asking them to work from home.  Consult with the individual before taking any such steps.

Employers have specific statutory obligations to take steps to avoid risks that pregnant employees are exposed to as a result of their work.  Where it is not possible to avoid such risks by other means, pregnant employees must be offered suitable alternative employment on a temporary basis or suspended from work on medical grounds (on full pay) for as long as necessary.  If the period of suspension continues into the fourth week before the expected week of childbirth, or the employee is ill after the start of the fourth week, this will trigger the commencement of maternity leave.

Work and travel

  • Employees in China – should make reasonable attempts to return to work at the end of their holiday or business trip. If that is not possible because of travel restrictions, they may be able to do some work remotely depending upon their responsibilities and the circumstances in which they find themselves.  Managers should contact any employees stuck in China to discuss their situation and whether they can safely travel home.  If appropriate, they can also discuss the possibility of remote working.
  • Payment for employees abroad – Normally, employees are entitled to be paid only when they are working or on authorised leave. If they are on holiday or fall sick while abroad, they should continue to be paid holiday pay or sick pay as normal.  If they are doing work for you while abroad, you should continue paying them their salary.
  • What happens if they can’t come back? – If the employees are expected back at work but cannot return or work remotely, the situation becomes more complicated. They may have a contractual entitlement to pay if you have a travel policy which sets out such an entitlement, or if you have a practice of continuing to pay people in those circumstances such that they would have a reasonable expectation of being paid.  In any event, if they have been abroad for work and have got stuck through no fault of their own, it would be reasonable to continue to pay their salary as normal until they return (or could reasonably do so).  If employees have been unable to return from holiday, you could choose to pay them (on a one-off discretionary basis), or ask them to take the time as annual leave or unpaid leave.  You should treat employees consistently or you may risk discrimination claims.

Employees who have recently returned from China

Government advice for travellers from China is that individuals who have travelled from Wuhan or Hubai province to the UK in the last 14 days should self-quarantine even if they do not have any symptoms.

Those who have travelled from elsewhere in China in the last 14 days and develop symptoms of a cough, fever or shortness of breath should also stay indoors and avoid contact with others as much as possible.  All these individuals should call the NHS to inform them of their travel.

If you have employees to whom this applies, you should ask them not to come to work until after the incubation period is over and any symptoms have completely gone.  If you do so, then as set out above, because you have asked them to stay at home, then they should continue to be paid at full pay.

Employees refusing to attend work

What is the position if the employer thinks it is safe to attend work, but an employee is reluctant to do so because of fears of infection?

Employers should assess the risk regularly, consulting government websites for updates.  They should also consider their staffing requirements and how many people they need in the workplace.  It may be possible to allow employees who wish to do so to work from home or to take holiday.

Employers should, however, be mindful that they might need to require individuals to attend if other people fall sick and there is insufficient cover.  If you do permit remote working or holiday, you should reserve the right to require workplace attendance on short notice, making it clear that disciplinary action could be taken if a refusal to attend work is unreasonable.

Before any disciplinary action is commenced, the situation should be discussed with the individual, because it may be possible to allay their concerns in some way.  For example, if their real fear is the risk of infection on public transport, it might be possible to adjust their hours to enable them to travel outside rush hour.

If the individual refusing to come into work is pregnant or otherwise at high risk, you should tread carefully and may have to be more flexible.  If someone has genuine fears about attending work, the stress of being required to do so or alternatively face disciplinary action may itself adversely affect their health.

Refusing to allow employees to stay at home, or disciplining them for not attending work, could potentially lead to legal claims.  For example, an employee might try to claim constructive unfair dismissal if there is a genuine health and safety risk from being required to attend work.  However, provided employers do not act unreasonably and employees are not placed at undue risk, such claims could be unlikely to succeed.

Employers should keep the situation under regular review and keep up to date on further government guidance.

If you have any questions on any employment law issue, please contact Cecily Donoghue or Nick Jones in our Bristol office. Call 0117 906 9400 or email enquiries@gregglatchams.com

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