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COVID-19: Paying absent employees

02 March 2020

The impact of Coronavirus (COVID-19) on the UK is not yet known, with official guidance being regularly updated. Employers should keep an eye on www.gov.uk and other official guidance.

Acas has also published some useful advice for employers and employees, which covers many frequently-asked questions such as how to handle pay for those who are absent from work through:

  • having Coronavirus;
  • self-isolating or quarantining as a precautionary measure;
  • caring for a dependant, either because the dependant has the virus or, for example, their child’s school has temporarily closed
  • an employee’s refusal to come to work because they are afraid of catching the virus.

The advice is available here.

The Right To Be Paid

The law is clear that, generally, the only circumstances in which an employee is absent but may be entitled to pay is where they:

  • are unfit for work, in which case the usual rules about sick pay apply; or
  • are fit for work and wish to attend, but the employer tells them not to come to work, in which case they should be paid as usual.

No Right To Be Paid

However, employers are likely to face a dilemma where employees are absent and do not have a legal entitlement to be paid – such as:

  • caring for a dependant;
  • being well enough to work, but placed in quarantine or self-isolation on medical advice;
  • being in an affected area and unable to travel back to the UK; or
  • not wishing to come in as a precaution.

In these cases, should those employees continue to be paid as normal?

A key distinction here is whether the employee is able to work without being physically present in their usual place of work. Where, for example, an employee is able to work remotely/flexibly, then it is likely to be a win-win for both employee and employer for the employee to continue to work and be paid as usual. Employers should ensure that if remote working is appropriate, then not only are there sufficient technological and information security measures in place to ensure that the employee can continue to work as normal, but also that the employer is still sufficiently able to monitor their performance. Arrangements regarding flexible and remote working during the Coronavirus outbreak should be kept under review, and it will be diligent for employers to make clear that any such arrangements are temporary.

Employers should keep in mind also the concerns of other staff. If an employee is healthy and wishes to come to work but has reported travel to affected areas or other exposure to the virus, it will be far easier in practice to direct the individual to remain at home and away from colleagues if the absence is paid in full.

Similarly, effective and proactive communication with employees can help set expectations. When giving guidance about business and personal travel, it will be worth drawing to employees’ attention that those who choose to travel might inadvertently find themselves unable to travel back to the UK on their planned date or they might be required to self-isolate on their return if circumstances in the region to which they have travelled change.

If the employee is not sick, but still unable to carry out work (because, for example, they are caring for a dependant), then unless there is already a company policy providing for it, there will be no right to receive pay, so the main driver to consider paying them as normal will be as a gesture of goodwill. However, given that there will not be a financial incentive to make other childcare arrangements and to return to work, employers who adopt this approach might find that periods of absence are longer, when compared to employers who treat the absence as holiday or unpaid leave.

Refusal to Come to Work

Where an employee is unwilling or refusing to come into work because of their concerns about Coronavirus, then any refusal may constitute unauthorised absence and, accordingly, a disciplinary matter. However, any employers treating such absence as a disciplinary issue should tread carefully.

Employers have a duty to provide a safe working environment. This health and safety duty will obviously extend to taking reasonable steps to ensure that the workplace is virus-free. Most employers will, no doubt, follow official guidance about travel suspension and the provision of hand sanitisers, but they will need to be careful in their dealings with any employee who raises concerns, in case the employee alleges that they have made a protected disclosure under the Employment Rights Act 1996, thereby giving them whistleblower protection. Accordingly, employers should make sure that they not only take steps to protect their employees’ health, but also communicate those steps to their workforce proactively.

Further, where concerns are raised by employees about workplace safety, particular care should be given in relation to staff who are pregnant or have a disability or pre-existing health condition which makes them particularly vulnerable to Coronavirus. Accordingly, employers should ensure that they are making reasonable adjustments in relation to employees with disabilities and that the virus is factored into risk assessments for pregnant and other vulnerable employees.

Further Considerations for Employers

Whilst employers owe various duties to their employees in relation to Coronavirus, it is not one-way traffic. Employees are under an implied duty to obey lawful and reasonable instructions. Employers may wish to instruct employees to take responsibility for their own health and – by extension – the health of their colleagues, by requiring them to follow policies introduced to lower the risk of Coronavirus spreading through the workplace. These requirements may include making the employer aware of the onset of Coronavirus symptoms and also disclosing any suspected encounters with it, whether that is through travel to high risk territories as identified by the FCO guidance ( https://www.gov.uk/guidance/travel-advice-novel-coronavirus) or close contact with someone who has returned from any of these territories.

Whilst these measures might appear excessively intrusive on employees’ privacy, provided that they are reasonably scoped, effectively communicated and linked to the employer’s duty of care to its workforce, imposing these measures ought to trump any objection that may be raised by an employee concerned about their right to privacy. Failure by an employee to follow these measures could, in certain circumstances, conceivably amount to a disciplinary issue, particularly if it then resulted in the closure of the workplace because of concerns being raised that colleagues have been recklessly exposed to an increased risk of catching Coronavirus at work.

As part of contingency planning for Coronavirus, employers should ensure that they settle on clear policies regarding pay during virus-related absence. Those policies should be clearly communicated to employees, and managers should be given support in implementing them. However, given the unpredictable nature of the Coronavirus and its impact on businesses, employers should keep these policies under careful review.

For information on the impact of Coronavirus on contracts, click here.

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