As the coronavirus (COVID-19) continues to spread in the United Kingdom, employers must ensure that they remain compliant with current employment and data protection laws in dealing with the myriad of issues that may arise, and keep up to date with UK government information and recommendations as the situation changes daily.
The UK government is preparing an emergency bill to put before members of Parliament (MPs). The upcoming COVID-19 Emergency Bill (the Bill) proposes to make Statutory Sick Pay (SSP) available from day one of an employee’s absence, instead of day four. Employers should communicate the government proposals to employees who will need to rely on SSP and encourage employees not to come into work if they are sick.
On 8 March 2020, Health Secretary Matt Hancock announced further measures expected in the Bill, including new powers to make it easier for existing volunteers in the health and social care system to support the fight against COVID-19. Volunteers will be given additional employment safeguards so they can leave their main jobs and temporarily volunteer in the event of a widespread pandemic. The jobs of skilled, experienced, or qualified volunteers will be protected for up to four weeks. The Bill will also ensure that the pensions of any retired staff who return to work in the National Health Service (NHS) are not negatively impacted. Employers may wish to gauge how many health and social care volunteers they have within their workforce so that they can prepare for absences accordingly.
The Bill also proposes to expand the use of video links in courts. Certain civil proceedings in the magistrates’ courts could be conducted via telephone or video, and audio and video live links in criminal proceedings will be encouraged. These provisions are designed to ensure that individuals who may be forced to self-isolate (self-quarantine) are still able to appeal to a court and justice can be delivered.
First and foremost, employers have a duty to take all reasonable steps to protect the health and safety of their employees. Therefore, employers should be doing everything they can to minimise the effects of COVID-19 on their workforce and keep up to date with the latest government, NHS, and Advisory, Conciliation and Arbitration Service (ACAS) advice.
If they have not done so already, employers are advised to conduct risk assessments on their business to determine whether any aspect of the business puts employees at an unnecessarily high risk of infection. For example, the Foreign & Commonwealth Office is presently advising against all travel to Hubei Province in China; Daegu, Cheongdo, and Gyeongsan in South Korea; and Italy. Business trips scheduled to these locations are not advised and employers should seek to conduct meetings via videoconference instead.
Employers will need to respond openly and flexibly as the COVID-19 outbreak continues. ACAS published guidance recommends that employers appreciate the novel situation we are in and accommodate the needs of employees wherever possible. ACAS has published a list of good practice points for employers:
The government has provided advice to employers for people who have returned from overseas travel in affected areas within the last 14 days. Currently, the advice is that they should avoid attending work and should telephone NHS 111 for advice on self-isolation.
If an employee is not sick but the employer suspends the employee from work on health and safety grounds (not falling within government self-isolation advice), the employee should receive his/her usual pay. It is likely that the employee has the right to continue receiving full pay because an employer has a duty to pay wages to those persons who are able and willing to work (assuming there is no express contractual provision to the contrary).
If an employee is not sick but the employer suspends the employee from work on health and safety grounds (falling within government self-isolation advice), the legal position is less certain. In those circumstances, the employer may instruct the employee to return home and seek medical advice. If the employee does so and is directed in writing by a medical practitioner (such as a general practitioner (GP)) to self-isolate, he/she may be deemed incapable of work and, therefore, entitled to SSP under the current rules. If so, the employee may in turn be entitled to contractual sick pay depending on the terms of the employer’s sick pay policy.
Interestingly, if employees ignore an employer’s instruction to seek medical advice, they are still arguably entitled to full pay because they are able and willing to work and are only abstaining from work because they have been suspended from the workplace.
Employers should take care not to unlawfully discriminate against employees, such as by suspending only higher-risk employees from the workplace, e.g., those persons with an underlying disability or older employees based on advice from the World Health Organization. While it is appropriate for employers to engage with high-risk staff in accordance with their health and safety obligations, those conversations will need to be handled carefully.
There is no statutory right to sick pay where employees are self-isolating but are not actually sick. ACAS recommends that it is good practice to pay such persons sick pay to avoid having sick employees—who should be self-isolating—attend the work premises. While this objective is laudable, employers may be concerned that this approach could be abused and lead to a perception of unfairness by those employees who do continue to attend work.
ACAS advises employers to be flexible and listen to the concerns of their employees in order to protect the health and safety of their staff. However, if flexible working arrangements are not possible, employers are not under a duty to allow employees to take time off as holiday or unpaid leave. If an employee refuses to attend work it could result in disciplinary action.
Employees are entitled to time off work to help someone who depends on them in an unexpected event or emergency. There is no statutory right to pay for this time off, but employers may offer pay depending on the contract or workplace policy.
It would be prudent for employers to prepare a policy detailing the company’s response to the spread of COVID-19.
If an individual with COVID-19 has been on the work premises, the employer does not have to close the workplace. The local Public Health England (PHE) health protection team will be in contact with the employer to discuss the case, identify the people who were in contact with the affected person, carry out a risk assessment, and advise on any actions or precautions to take. At the time of writing, PHE does not advise closure of the workplace in such circumstances.
Employers have obligations to protect their employees and should not knowingly allow an infected employee to enter the premises.
If an employee contracts COVID-19, the usual sick leave and pay entitlements will apply. Employees will receive SSP if they have received written notice to self-isolate from their GP or from NHS 111. ACAS has advised that employers might need to be flexible if they require evidence from the employee or worker, i.e., the worker might not be able to provide a sick note if they’ve been told to self-isolate for 14 days.
Employers must be mindful to comply with data privacy restrictions when they implement monitoring procedures relating to employee travel and health, as well as monitor working-from-home measures. The EU General Data Protection Regulation (GDPR) and the UK Data Protection Act 2018 require that employers need to have a lawful processing ground to collect and use personal data, including travel information, health information, and the use of systems and devices when employees work from home.
General travel data can be collected by employers provided that they have a lawful basis to process this information. The lawful basis will need to be identified on a case-by-case basis, but it will usually be in the employer’s legitimate interests to collect travel data to monitor the spread of COVID-19 in the workplace. Employers may be justified to request information specifically relating to an employee’s travel to areas that the UK government has advised individuals to avoid. Employers must not single out any employee or discriminate on the grounds of race or ethnicity or other protected grounds.
Additionally, information about an employee’s health, including but not limited to details of any positive test for COVID-19, is a special category of personal data under the GDPR and additional restrictions apply. In this situation, it is likely that the public health lawful processing ground is most applicable to this type of data collection, but employees need to restrict the data collected to this ground and the other lawful processing requirements continue to apply, including restricted access, security measures to keep data secure, and restrictions on sharing the data with a third party.
Employers should limit the collection and dissemination of personal health data to that which is strictly necessary in the circumstances. Care must, therefore, be taken in relation to the process of gathering the health data and restricting who can access it and with whom it is shared within the employer’s group or externally. To the extent it is feasible to de-identify data to protect an individual’s identity, it would be prudent to do so. Where, however, it is necessary to disclose the identity of an individual to best promote the safety of the working environment and public health, this should only be done on a strictly confidential, “need to know” basis to limit the dissemination of any personal data.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
London
Matthew Howse