In light of the prediction that infection rates for the Coronavirus epidemic could potentially affect 60% of the population, what are the legal implications and obligations in the workplace? Our Head of Employment Law Yunus Lunat addressees some of the common questions and issues that are being raised by our clients:
As an employer, can I suspend an employee who is suspected of having Coronavirus?
Employers have a general duty to protect the health and safety of their workforce. There is a conflict here between the employer discharging that duty by keeping the genuinely sick employee away from the workplace with the employee’s right not to be subjected to an unreasonable suspension. In light of the employer’s duty to protect the health and safety of its workforce, the employer should be able to keep the employee away from work until that risk has been alleviated. It is a balancing exercise for the employer in weighing up the risk of allowing the employee to remain at work and as to whether that outweighs the risk of being faced with litigation by suspending the employee.
If the employer goes down to route of suspension then it is important that it is handled sensitively and proportionately as a failure to do so could amount to a breach of the implied duty of mutual trust and confidence entitling the employee to resign and bring a claim for constructive dismissal. The employer should firstly consider the contractual position and whether that allows for an express right to require the employee to remain at home. That is unlikely to be covered in most contracts and therefore it needs to be considered whether there is an implied right to require the employee to attend work in these circumstances.
There is generally no implied term requiring the employer to provide work to the employee so long as the employer continues to pay the wages of the employee. Therefore, if the employer were to require the employee to remain at home, subject to payment of wages, we believe that it is unlikely that this would lead to any breach of the implied term of mutual trust and confidence. Again this has to be qualified by stressing that the decision must be considered and made on non-discriminatory grounds and dealt with appropriately and proportionately.
In the above scenario what pay is the employee entitled to?
The first recourse needs to be the terms of the contract. The employee is not medically unfit to work and is therefore unlikely to be entitled to qualify for statutory sick pay. The decision would be different if the employee is subsequently diagnosed with Coronavirus or otherwise becomes too ill to attend work.
Where the suspension is taken as a precautionary measure, the employee will be entitled to continue to receive its full pay. The employer can of course require the employee to continue offering his services by working from home.
Can an employer discipline an employee who is not ill but refuses to attend work for fear of contracting the Coronavirus?
The basic answer is yes but as with most scenarios, it will be dependent upon the circumstances.
Can the employer refuse to pay the employee if the employee refuses to attend work?
If the employee is not unwell, then in the above scenario, the better option may be for the employee to be allowed unpaid leave. There is no obligation on the employer to continue to pay the employee if the employee refuses to attend work. Whilst disciplinary action may be possible, in the current climate, it may be wiser for there to be an agreed position that the employee would be on unpaid leave.
What if the employee has returned from abroad and places themselves in self-imposed isolation?
This is likely to be covered by the SSP regulations subject to qualifying criteria. An interesting point to note is if the employee is clear of symptoms and is not diagnosed with the virus then strictly speaking an employee would not qualify and would be absent without leave. Ultimately the situation should be handled sensitively and proportionately in light of the current fears.
What if the employee is suffering from anxiety caused by Coronavirus?
In that case the employee would be covered by medical absence and be entitled to either contractual sick pay if provided in the contract or have recourse to the statutory sick pay provisions.
Can an employer make redundancies if business is affected by the Coronavirus?
Ultimately, if business and revenue has been affected to that extent, a redundancy situation can arise. The employer would have to undergo a full redundancy consultation with its workforce in order to determine how many would be affected by the redundancies and how those employees would be selected. In the first instance the employer would be advised to consider reducing the working hours. This would however have to be done by agreement unless the contract allows for it. A reduction in working hours cannot however be unilaterally imposed by the employer on the workforce.
For advice on all aspects of employment law please contact Yunus Lunat on 0113 284 5023 or alternatively e-mail firstname.lastname@example.org.