Questions over both employers’ and employees rights during strikes and with serious infection risk - Robin Turnbull

With disruption from the biggest rail strikes in decades and concerns from rising infection rates (not just coronavirus but monkeypox and even polio), many are questioning where employers and employees stand.

Generally, employees are obliged to attend work and employers are obliged to provide work and pay the employee for that work. If employees don’t arrive, unless their contract indicates otherwise, the payment obligation halts. But it’s not always that simple.

Employees have a statutory right not to suffer unlawful deductions from wages and doing so could lead to claims. If the failure to work was unavoidable, the employee may be entitled to payment.

It’s more complex if an otherwise well employee is stopped from working because of transport disruptions or for fear of infection.

Robin Turnbull is a Senior Associate with Anderson Strathern

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Recent cases found that full pay was due where the employee was excluded from working after being exposed to coronavirus. The employer wasn’t criticised for concerns over the infection risk, but it was agreed that the employee should have been paid in full.

Full pay is not due when the employee cannot do their job after testing positive. If there is no guarantee of work, the employer’s position is stronger.

So, the outcomes relate to the circumstances including what’s in the contract, company policies, and organisational practices.

But even if an employer acts lawfully, potential reputational damage should be considered. Essentially, employers are obligated not to be wholly unreasonable to employees. If travel is advised against or there’s a serious infection risk, employers should not put excess pressure on employees to come to work.

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While employers cannot necessarily afford to pay employees who are unable to work, employees will be in difficult circumstances too. Alternatives for employers include:

paying employees to make up the time when they return agreeing with the employee that they will take the time off as paid holiday splitting the time as 50 per cent unpaid leave and 50 per cent holiday or sick pay considering alternative modes of transport allowing working from home or another site where possible

If an employer is concerned that an employee is using these issues to avoid coming to work, they can investigate by checking which trains were cancelled and when, or asking for evidence of having had an infection before considering disciplinary action.

The government has introduced new laws to enable agency staff to cover during strikes. The new laws apply across England, Scotland and Wales – in both the private and public sector and could further mitigate the impact (although there are claims they violate human rights).

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But not everyone can rely on these solutions especially those in the hospitality, healthcare, manufacturing and retail sectors.

This is complex for employers and contingency planning, particularly to agree policies for travel disruption or infection, will assist greatly. This type of contingency planning may become mandatory, with some insurers, government bodies and accreditation bodies requiring it. Regardless, considering amending policies and contracts now to ensure clarity for everyone would be worthwhile.

Future policies might increase flexibility, including allowing employers to withhold payment or to require employees to take holiday where unplanned circumstances prevent them attending work or cause the employer to take a reasonable decision to close the workplace or prevent staff from coming in. Speaking to employees or trade unions now could prevent damage if challenges emerge.

Robin Turnbull is a Senior Associate with Anderson Strathern

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