Employer mustn't get caught cold by spread of coronavirus - Anne Sammon

The outbreak of coronavirus, ­officially Covid-19, raises points of employment law, immigration, health and safety and data ­protection law for UK employers. As the situation changes daily, specific legal advice should be sought where necessary.

Employers may want to start thinking about steps to facilitate home working, says Sammon. Picture: Contributed

A great deal of focus is on whether an employer can expect an employee, required to self-isolate following travel from a particular geographic area, to work from home. This is likely to depend on whether the employee is symptomatic – in which case, it is likely that they should be on sick leave and therefore not working.

Employers may want to start thinking about steps to facilitate home working, and consider whether they want to encourage employees to ensure that they have the correct set-up to be able to work there if required to do so. Employers must bear in mind the duties that they owe to other employees under UK health and safety law.

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If they knowingly allow an ­individual who has been advised to self-isolate to attend their premises or come into contact with other employees, they may be in breach of those duties, particularly where any of those other employees are more vulnerable to infection – for example, pregnant employees or those with long-term health conditions.

Suspension may be an option where an individual who has been advised to self-isolate refuses to do so, but employers should consider whether they have a right to suspend in these circumstances. Where no express contractual right to do so exists, legal advice should be sought.

Employers are unlikely to be able to require employees to take holiday for any period of self-isolation in the absence of a contractual right to do so. As they are not “sick”, it is unlikely they will be ­covered by sick leave.

Instead, assuming the employer has instructed employees who should self-isolate to remain away from their place of work, employees are likely to be on a period of leave. This leave is likely to need full pay, unless an employer has a contractual right to place the employee on unpaid leave, which is unlikely.

Reconsidering absence policies

Where a self-isolating employee voluntarily remains away without discussing this with the employer, there may be more scope for considering leave to be unpaid.

Many sick pay policies include a requirement for the employee to obtain a fit note from a doctor. However, an employee who is following official guidance to self-isolate and who has flu-like symptoms, may be unable to obtain this, for example, if their local GP will not see anyone with coronavirus symptoms.

As such, employers may need to consider making exceptions to their usual sick pay policies.

Under UK data protection law, personal data concerning health is “special category data”. This means that employers need to ensure that any communication does not include any data about the individual who is absent. While it would be fine to let employees know that there has been a confirmed coronavirus case in the workforce, it would not be appropriate to provide any details from which the individual might be identified.

Employers seeking information from workers about travel need to be careful not to discriminate. An employer is likely to be able to justify a request for all employees to declare any travel from an area in respect of which the UK government advises an individual to self-isolate.

However, enquiring about travel only to certain areas, or only from ­certain sections of your employee population, is likely to amount to discrimination or harassment.

Employers will be liable for harassment or discrimination by employees towards other staff, save where they have taken reasonable steps to prevent this. Employers cannot rely simply on a policy that states discrimination and harassment is not tolerated.

Further steps, such as training and evidence of inappropriate behaviour being tackled must also be taken for an employer to avoid liability.

- Anne Sammon, partner and employment law specialist at Pinsent Masons.

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