Employee and Employer Rights During Covid 19 Pandemic: the UK

The Covid-19 virus is spreading rapidly in the United Kingdom, impacting all parts of everyday life, including the workplace. Therefore, UK employers are advised to take into consideration the following recommendations. Pursuant to UK law, an employer is responsible for the physical and psychological health and safety of the employees in the workplace and in this respect give instructions and take safety measures as reasonably can be expected from the employer.

What are the general principles an employer should or could apply?

An employer has a duty of care to their employees

and must take reasonable precautions to protect the health and safety of employees, namely:

  • Keeping up to date with changing government, medical and travel advice.
  • Issuing reminders of good hygiene practices
  • Consider banning handshakes and unnecessary close contact between colleagues and visitors
  • Providing adequate hand washing facilities, hand sanitizer and tissues.
  • Cleaning communal areas
  • Issuing employees with information on the symptoms of the virus and what to do if they have concerns
  • Updating employees on changes to policies and practices like working from home or travel restrictions, as a result of COVID 19

Can an employer force an employee to work from home?

If anyone becomes unwell with a new, continuous cough or a high temperature in the business or workplace they should be sent home. If an employer decides to send a non-symptomatic employee home as a precautionary measure because they are worried that the employee may have been exposed to the virus, this will be on full pay. In this case, employees are following the reasonable instruction of the employer and should get their normal pay.

However, if it’s not possible for an employee to work at home and employee has been told by a medical professional (NHS 111 or a doctor) to self-isolate; the advice from the Government is that employees or workers are entitled to Statutory Sick Pay. This includes individuals who may be a carrier of COVID-19 who may not have symptoms.

If an employee is sent home, then what measures do employers have to take?

If an employer and employee agree to working from home, the employer should:

  • pay the employee as usual
  • keep in regular contact
  • check on the employee’s health and wellbeing

Are employees who self-isolate themselves are entitled to be paid as usual?

This depends on the reason why the employee is self-isolating. In cases where there might be no legal entitlement to pay, but there is a risk that an employee who will not be paid, will not otherwise disclose that they have been asked to self-isolate and may attend work, risking the health of colleagues. Those who have COVID-19 are entitled to sick pay under their employers’ usual policies and procedures

As of 4 March 2020, the government has confirmed that those entitled to statutory sick pay because they are in self-isolation will receive it from day one, not day four, of their absence.

Those employees who are in isolation and unable to work because they are following medical advice or government guidance should be paid sick pay, even if there is no policy or contractual provision which would usually entitle them to be paid, if they are not sick.

An employee who is required to self-isolate for 14 days after their return from affected areas would therefore be also entitled to sick pay.

Those who have been asked to self-isolate because they have been in close contact with a person with COVID-19 would also be entitled to sick pay, unless they are able to work from home. Those who return from other locations are not expected to self-isolate unless they develop symptoms, at which point they would be entitled to sick pay.

If the employee is quarantined, does the employer still have to pay the salary

Yes, if they continue working from home.

Those who follow advice to stay at home and who cannot work as a result will be eligible for statutory sick pay (SSP), even if they are not themselves sick. Employers should use their discretion and respect the medical need to self-isolate in making decisions about sick pay.

What if the employee refuses to come to the office

An employer should listen to any concerns and fears that their staff may have particularly those who are at higher risk and should take steps to protect them. If an employee still does not want to go in, they may be able to arrange with their employer to take the time off as holiday or unpaid leave. The employer does not have to agree to this. If an employee refuses to attend work without a valid reason, it could result in disciplinary action.

If the employer needs to close down their business for a short time, or ask staff to reduce their contracted hours, are the employees entitled to pay?

Employees who are laid off and are not entitled to their usual pay might be entitled to a ‘statutory guarantee payment’ of up to £29 a day from their employer. This is limited to a maximum of 5 days in any period of 3 months. On days when a guarantee payment is not payable, employees might be able to claim Jobseekers Allowance from Jobcentre Plus.

Business shutdowns due to the virus outbreak – what options are available to employers?

Where an employer is facing economic problems as a result of coronavirus (as a result of a reduced demand, because employees are unable to attend work, or lack of clients), an employer with the contractual right to do so, can lay off employees or put them on short-time working arrangements. This is a short-term alternative to dismissal and qualifying employees are entitled to claim a statutory redundancy payment or a statutory guarantee payment from their employer.

The UK government’s action plan published on 3 March 2020 says that employers facing short term cash flow issues may contact HMRC if they are concerned about falling behind on their tax payments and may be offered the tax authority’s Time to Pay system on a case-by-case basis.

If childcare services and/or schools are closed, is it allowed for the employee to stay home? If yes, is the employee still entitled to his/her salary?

Employees are entitled to take time off work to help someone a dependent (if they have children they need to look after or arrange childcare for because their school has closed and to help their child or another dependent if they’re sick, or need to go into isolation or hospital) in an unexpected event or emergency, like situations related to coronavirus.

Employees may also be able to take unpaid parental leave for up to four weeks per year per child. Alternatively, they may ask to take an annual leave. There’s no statutory right to pay for this time off, but some employers might offer pay depending on the contract or workplace policy. If an employer exercises its discretion to do so, this should be done fairly and in a non-discriminatory way.

Can an employer forbid his employees to travel abroad privately and/or on business purposes?

All employees required to travel on business should be covered by travel insurance, but insurers are likely not to cover any travel warned against by government advice. The World Health Organisation recommends that all employers carry out a risk assessment of future travel plans to areas affected by COVID-19, and that employers should avoid sending those at particular risk of severe COVID-19 to those areas.

If a trip is planned to one of the risk areas, employers should consider whether it is essential or whether necessary meetings can be replaced with video conferencing or postponed. An employee who is instructed to go abroad on business and is unable to return or is required to self-isolate should be paid as usual for the period they cannot work.

Employers cannot force employees not to travel for personal reasons. The employer may advise and remind employees of the most recent government advice and the consequences of a trip to a high-risk region could be. If the employee cancels a trip voluntarily, the employer will not be liable to compensate for any costs, not covered by travel insurance. Employers should be alert to situations whereby the employee cancelled in response to a request not to travel, in which case the employee may be liable to compensate expenses incurred by the employer.

Can an employer oblige employees to travel abroad (to risk areas) for business?

The employer cannot oblige employees to travel abroad. Moreover, most of the countries have closed their borders.

Can an employer force the employee to take holidays on short notice?

Employers cannot force but have the right to tell employees and workers when to take holiday, if they need to. For example, they can decide to shut for a week, and everyone has to use their holiday entitlement. If the employer decides to do this, they must tell staff at least twice as many days before as the amount of days they need people to take. For example, if they want to close for 5 days, they should tell everyone at least 10 days before.

An employer can ask an employee not to attend work, in which case the employee still has to be paid unless there’s a clause in the contract which allows the employer to suspend the employee without pay, in specific circumstances. These are referred to as ‘lay off’ clauses. ‘There’s no limit to how long an employer can lay-off an employee, but if they’ve been away from work for four weeks in a row, or six weeks within a 13-week period where no more than six weeks are consecutive, the employees can apply for redundancy pay and resign from their positions.

Can an employer force the employees to cancel their holidays on short notice?

The law does allow employers to cancel annual leave that’s already been authorised, so long as the minimum required notice is given.

Can the employer ask employees whether they have recently visited a risk area and if yes, what can the employer do?

The employer can ask but the employee is not obliged to reply.

Can employers take the temperature of an employee?

Yes, with employee’s freely obtained consent. Employees’ temperatures would constitute special category personal data under the GDPR, and therefore could realistically only be collected in this way if there is a substantial public interest in doing so. Employers who wish to monitor employees’ temperatures should openly explain the current coronavirus advice, their concerns and risk management strategy.

Employees may then consent to having their temperatures taken. If employees do not consent, and there is no contractual provision or agreed policy covering the situation then taking an employee’s temperature is unlawful.

If employers do test temperatures, the recording of temperature testing data needs to be handled appropriately because the data (similarly to drug testing) is likely to be covered under data protection law. Any data that an employer has about an employee’s temperature, symptoms, where the employee has been and whether he or she has tested positive for coronavirus is sensitive personal data and additional requirements apply to ensure the data is processed legally.