Coronavirus FAQs: general employment law and HR

In order to help the many businesses going through an unprecedented time of uncertainty, we have prepared these Frequently Asked Questions (FAQs) for employers around Coronavirus (COVID-19).

Read more: Coronavirus FAQs: changing employment terms and lay-offs

Q: Where an employee refuses to attend work due to fears about coronavirus, what action can an employer take and what pay are they entitled to?

If the employee can work from home, then this may well resolve the issue. If not, the employer would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of the employee’s refusal.

If there is no discrimination, and the public health advice is such that the employee could reasonably be asked to continue to attend work then it is possible that the employee could be investigated for misconduct in terms of their refusal to follow a reasonable management instruction and their unauthorised absence.

If the absence is unauthorised then the employee would likely not be entitled to pay as they are not willing to attend work.

Q: Where an employee self-isolates following advice from a medical professional or government guidance, are they entitled to pay?

On the basis that the employee is not showing symptoms and has not been diagnosed with the disease, and that they cannot work from home during their self-isolation, but the individual self-isolates in response to either direction by a medical professional or government guidance they will be deemed incapable under the new deemed incapacity rules for SSP. They will therefore be entitled to SSP, or any contractual sick pay.

Q: In what circumstances could holiday be used by workers to cover periods of absence?

The normal rules on taking annual leave under the Working Time Regulations 1998 will continue to apply. Workers may wish to take annual leave as an alternative to scenarios where they would otherwise be on SSP or nil pay. Workers are entitled to take statutory annual leave during sickness absence but may not be compelled by the employer to do so.

Workers who are not on sick leave can be instructed to take statutory annual leave by their employer, provided that they are given the required level of notice. An employer may give notice ordering a worker to take statutory holiday on specified dates. Such notice must be at least twice the length of the period of leave that the worker is being ordered to take. There are no explicit requirements about the form that this notice must take, but we advise that it is in writing.

Q: What pay is an employee entitled to if they have mild respiratory symptoms but no diagnosis of Covid-19?

An employee in these circumstances may be treated as being on sick leave and be paid SSP or contractual sick pay. Even though their mild respiratory symptoms may not have resulted in them taking sickness absence, the fact that they have symptoms, it’s likely that this brings them within either the normal definition of incapacity or the deemed incapacity provisions (if they fall within government guidance to self-isolate).

Q: Where an employee is advised to self-isolate or quarantined under the Coronavirus Regulations, can they continue to work from home/the quarantine location?

This would depend upon the terms of the order under the Coronavirus Regulations. If they have the facility to work from the location to which they are quarantined, and they are well enough to do so, then this should be possible provided that the restriction imposed upon them under the Coronavirus Regulations does not explicitly or implicitly prevent them from working.

Q: What should an employer do where an employee who is at work starts displaying symptoms?

The government guidance from Public Health England and BEIS and the Acas guidance, advise that if the employee has not been to one of the high-risk specified areas in the last 14 days, then normal practice should continue. However, if the employee has travelled to one of the affected countries in the last 14 days, they should be removed to an area which is at least two metres away from other people. If possible, this should be a room or area where they can be isolated behind a closed door, such as a staff office. A window should be opened, if possible, for ventilation.

The guidance advises that the affected employee should call NHS 111 from their mobile, or 999 should be called if it is an emergency (if the employee is seriously ill or injured or their life is at risk) and explain which country they have returned from in the last 14 days and outline their current symptoms.

While the employee waits for advice from NHS 111 or an ambulance to arrive, they should remain at least two metres away from other people. They should avoid touching people, surfaces and objects and be advised to cover their mouth and nose with a disposable tissue when they cough or sneeze and put the tissue in a bag or pocket then throw the tissue in the bin. If they do not have any tissues available, they should cough and sneeze into the crook of their elbow.

If the employee needs to go to the bathroom while waiting for medical assistance, they should use a separate bathroom if available.