01 April, 2020
The current virus pandemic has resulted in the implementation of unprecedented changes and restrictions all over the world. All sections of society have been affected to varying degrees, and it is a confusing and challenging time for employers. Employers that have been obliged to close their business have to address the possibility of redundancies, lay-off, furlough, along-side maintaining a skeleton staff where necessary. For those in industries that need to continue to function, such as the housing sector, employers face different challenges. Streamlining the workforce to identify those strictly necessary to keep providers running effectively may have necessitated considerations of furlough or short-time working. For those identified as essential, remote working has overnight become the new norm for those who are able to, putting strain on companies to provide the practical framework to permit remote access.
Maintaining a physically present workforce is also a significant difficulty. Pervasive measures to ensure as much social distancing as is physically possible in accordance with Government guidance will need to be put in place in order to provide as much protection as possible to staff and residents.
As of 12 March 2020, those self-isolating in order to prevent spread of the virus are entitled to statutory sick pay. As to whether any enhanced sick pay is payable will depend on the terms of their employment contract, and possibly also whether they have actually contracted the virus themselves or have just been in contact with it.
For those employees designated high risk and advised to self-isolate for a 12-week period (shielding), remuneration entitlement for the time away from work can be an area of confusion for employers. Whilst differences in guidance from the Government directed at employees and employers muddies the water slightly, such employees can in some circumstances be furloughed attracting the protection of the Employee Retention Scheme. Difficulties arise where employees live with a high-risk individual and chose to self-isolate with them. Government guidance states that people who live with a vulnerable person who is shielding are not required to isolate themselves and as such are not entitled to statutory sick pay for example. Where employers are faced with employees who are choosing this course of action, legal advice should be taken to consider the options available to manage this confusing period.
Providers should also be wary of circumstances where employees are concerned to work due to a danger to their health or those around them. S.100(1)(d) of the Employment Rights Act 1996 states that an employee who is dismissed in relation to leaving (or proposing to leave) work or refusing to return due to a reasonable belief of serious and imminent danger shall be regarded as unfairly dismissed. In light of this, should an employee refuse to attend we advise against any serious disciplinary action that could result in dismissal. Although the risk of an employee resigning and claiming constructive dismissal in the current precarious climate is low, an empathetic and conciliatory approach would be advisable. Communication is key, and demonstrating that you have taken all steps to follow Government guidance to keep them safe may be sufficient to dispel any fears. However, if the employee persists in refusing to attend work, please take legal advice before taking any action.
For more information contact Rosalind Leahy in our Housing & Regeneration department via email or phone on 01772 220185. Alternatively send any question through to Forbes Solicitors via our online Contact Form.