Coronavirus (COVID-19) - Health and Welfare of Staff and Others

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24 February, 2020

Protecting the health and welfare of colleagues and visitors to business premises is a priority considering the recent publicity surrounding coronavirus. This is of particular concern if as a business need you are required to travel to any of the affected regions.

Employers will also need to consider individuals holiday plans which may involve travelling to affected areas, to minimise the risk of possible infection spreading in the workplace. Depending on the areas concerned and the extent of contact, members of staff may be required to work remotely where possible for 14 days to cover the period during which any coronavirus symptoms are likely to become evident. However, this should be considered on a case by case basis. It may also be wise to put in place other measures to minimise the risk of infection spreading to colleagues and visitors including extra cleaning of communal surfaces, and to remind members of staff to maintain good basic hygiene (eg by washing or sanitising hands frequently particularly after using public transport.

The World Health Organisation has declared this is a public health emergency of international concern, and the UK Chief Medical Officers have raised the risk to the public from low to moderate. This permits the government to plan for all eventualities. Based on the scientific advice of the Scientific Advisory Group for Emergencies (SAGE) the UK Chief Medical Officers are advising anyone who has travelled to the UK from the affected areas in the last 14 days and is experiencing cough or fever or shortness of breath, to stay indoors and call NHS 111 even if symptoms are mild.

There are particular issues that arise when an employer is faced with a situation where an employee (who works with colleagues in an office) is suspected of having coronavirus but insists on coming into work. There is the concern that it could amount to a breach of contract to insist that the employee remains absent from work on sick leave on Statutory Sick Pay only (assuming that there is no contractual provision entitling the employer to do so).

There are two separate issues here; the first being whether the employer can request an employee to remain away from work, and the second issue is the pay that they are entitled to during this period. In the event of a pandemic (such as coronavirus) employers have a duty to protect the health and safety of employees. During a pandemic, employers will face a conflict between the need to keep genuinely sick employees away from the workplace and the need to prevent unauthorised absence.

If there is an identified risk that an employee may have been exposed to coronavirus then it is understandable in light of an employer's duty to protect the health and safety of other employees that the employer would wish to keep that employee away from the workplace until the risk has passed. The issue is how to do this. In these circumstances, the best course of action would be to seek the agreement of the affected employee to remain at home during the 14-day period on return from an affected area. The employer should consider whether it has a contractual right to require the employee to stay at home (this will usually be uncommon). If they were to refuse to remain at home, medical suspension could amount to a breach of contract, however the employer may deem the risk of allowing the employee to remain at work as outweighing any employment law risk that could exist in relation to suspension.

The concerns surrounding paying the employee will largely depend on the terms of the contract of employment. At the time of suspension in relation to these circumstances, if the employee is not unfit to work then it is unlikely that they will be entitled to statutory sick pay. If the employee is not actually incapable of working, their absence is unlikely to be regarded as sickness absence. Where an employee is being suspended on health and safety grounds because of a possible risk of infection, it is likely that they will have the right to continue to receive full pay. There is an implied term that where an employee is willing and able to perform work in accordance with the contract, the employer has an obligation to pay wages, unless there is a contractual right not to do so.

Therefore if an employer is faced with an issue concerning the above information, there should be a risk based approach taken, and each individual concerned should be assessed on a case by case basis and all the circumstances should be reviewed to enable an employer to establish the best course of action to take, bearing in mind the risk of a claim being brought by an employee in relation to suspension, weighed against the implied term of the duty on an employer to protect the health and safety of other individual employees.

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