Coronavirus (COVID-19) Employment Law Issues

Chris Cook answers some of the frequently asked questions related to managing workforces during the coronavirus pandemic including entitlement to sick pay, taking paid holiday and home working.

During the last couple of months, COVID19, the disease caused by the coronavirus has spread rapidly across the globe.

The situation is continuously changing and has impacted various aspects of employment law. To address this, we have considered below some possible issues which may arise.

Entitlement to sick pay

To determine an employee’s entitlement to sick pay, you will need to review the terms of the contract of employment. Enhanced sick pay is not always a contractual right and many contracts will only entitle an employee to statutory sick pay (SSP). This is a payment of £94.25 per week, with Income Tax and National Insurance deducted in the usual way.

Usually, SSP only becomes payable once the employee has been off sick for at least four days. This is because the first three days are known as “waiting days” and the “qualifying period” is from day four up to 28 weeks. However, since 13 March 2020 if you are off sick as a result of the coronavirus, the usual waiting period does not apply and you will qualify for SSP from day one of your sickness absence. This is the same whether you are unwell with the coronavirus, or you are required to self-isolate.

Those on zero-hours contracts and agency workers may be entitled to SSP, although further guidance is required on how this will be calculated.

Can an employer compel employees to take paid holiday?

The normal rules under the Working Times Regulations 1998 (WTR) will continue to apply.

Employers are entitled under Regulation 15 (2)(a) WTR to require employees to take certain days as annual leave provided that they give at least twice the length of notice as the period of leave the employee is being asked to take.

We believe it highly likely that many employers will use this right to require employees to take annual leave during any furlough periods.

Can either the employer or employee insist on homeworking?

Employers can not insist on employees working from home unless the contract of employment permits this. However, the employer does have a duty of care towards the employee. In light of the Stay at Home guidance issued by the government, it would be unlikely that such a request would be considered unreasonable.

The position for the employee is the same, and given the current government guidance that employees should work from home if they possibly can, an employer should not insist on employee’s attending the workplace if they can work from home. If they did, the employee could potentially argue the employer has breached their duty of care towards them (especially if they go on to catch the virus) or refuse to attend on the grounds doing so would put them at imminent risk of danger.

Can an employer share information about an employee who has coronavirus?

The short answer to this is no. The Data Protection Act 2018 describes information relating to an employee’s health as special category data. Therefore, it can only be processed by the employer in restricted circumstances.

If an employee is showing symptoms or has tested positive for coronavirus, employers should alert employees to the risk by informing them that there is a suspected or confirmed case of coronavirus at work and advise the staff as to the steps the company is taking to respond to this, without naming the individual. Obviously if the individual who has tested positive for coronavirus explicitly consents to their information being passed on (which will be the case in most situations), this issue is overcome.

CONTACT CHRIS

If you would like more information or advice relating to this article or an Employment law or Data Protection matter, please do not hesitate to contact Chris Cook on 01727 798089.

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