STOP PRESS (17 April 2020): Coronavirus Job Retention Scheme (CJRS) details released
Further specific details on the workings of the Coronavirus Job Retention Scheme (CJRS) have just been released by the government on the 15th April 2020: https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme?mc_cid=177bacbc11&mc_eid=cc10e7b46c
Further guidance on the Coronavirus Job Retention Scheme (CJRS) (Furlough Leave) may still be released therefore we will update this page further if we know more.
Last updated: 20th April 2020
Can my employee attend work today? 24th March 2020
In an email circulated by Daniel Barnett, Employment Law Barrister on the 24th March 2020:
The short answer is currently, yes as long as they fully observe the 2m distancing rule.
In last night’s statement to the nation Boris Johnson stated that "Travelling to and from work [is permitted], but only where it is absolutely necessary and cannot be done from home". That was ambiguous, in that it was not clear whether the work had to be necessary, or whether the travel to get there had to be necessary.
An hour or so later, the government published a document entitled Full guidance on staying at home and away from others. That guidance said "Travelling to and from work [is permitted], but only where this absolutely cannot be done from home."
That put a slightly different slant on things: it suggested the work did not need to be 'necessary', merely that it 'absolutely cannot' be done from home.
Finally, the Mayor of Manchester, Andy Burnham, tweeted: "OK, final tweet tonight everyone. Have now spoken to No10 & had it confirmed that people CAN leave home to work - as long as they fully observe the 2m distancing rule. Seems to me to be in conflict with the big #StayAtHome message. But that’s the official policy. Over & out!"
So that, assuming it is right, suggests that anyone can go to work provided their work cannot be done from home and they fully observe the 2m distancing rule. Where work can be done from home employers must implement this with immediate effect.
It is likely that further guidance/regulations will be issued around this soon.
In the meantime some employers may choose to bring forward their plans to designate employees as furloughed workers. You can read more about what this is and how you should go about it in the section on the coronavirus job retention scheme.
With thanks to Daniel Barnett, Employment Barrister who has provided clarification on the question above. The majority of the detail is directly cited from an email he circulated at 06.54 this morning. As this is not my own work I want to give full credit to the author.
What you should consider as an employer
Coronaviruses (CoV) are a large family of viruses that cause illness ranging from the common cold to more severe diseases such as Severe Acute Respiratory Syndrome (SARS-CoV). Coronavirus (COVID-19) is a new strain that has not been previously identified in humans.
The coronavirus situation globally and in the UK changes day by day. It is important that employers think ahead and consider business continuity plans in the event that some or their entire workforce is unable to attend work. Employers should keep abreast of the government guidance and amend their plans as appropriate.
Homeworking is encouraged were possible. If staff cannot work from home and/or there is a downturn in work due to the circumstances, then let us know and we can talk you through the options for your workforce.
Business continuity considerations
Employers may wish to start considering now if employees have the correct setup at home to enable them to work from home if required to do so. This may include ensuring that all employees have a way of logging on to secure systems from home.
Employers should also make sure everyone's contact numbers and emergency contact details are up to date.
You may also wish to issue an instruction to staff asking them to tell you if they have travelled to affected areas or to tell you if they think they have come into contact with someone who has or may have the virus.
Practical steps for employers to manage the coronavirus
ACAS have issued some practical steps for employers to take in the meantime:
- Keeping your employees updated about what steps the company is undertaking
- Advising line managers on how to spot the symptoms of coronavirus and recommended actions (see below for NHS outline of symptoms)
- Ensuring there are adequate facilities for employees to wash their hands with hot water and soap and encourage everyone to wash their hands regularly
- Providing hand sanitiser and tissues to staff, to encourage regular hand washing
- Consider if face masks are required, as these may mitigate the spreading of the virus.
- Consider if travel to affected areas is essential
What are the symptoms and NHS guidance?
NHS England advises that if you have either of the symptons of coronavirus below to stay at home
- a new continuous cough (this means the individual has started coughing repeatedly)
- a high temperature (feel hot to touch on the chest or back)
The government issued new guidance on the 16th March 2020 for individuals to stay at home
- if you live alone and you have symptoms of coronavirus illness (COVID-19), however mild, stay at home for 7 days from when your symptoms started. (See ending isolation section below for more information)
- if you live with others and you or one of them have symptoms of coronavirus, then all household members must stay at home and not leave the house for 14 days. The 14-day period starts from the day when the first person in the house became ill
- it is likely that people living within a household will infect each other or be infected already. Staying at home for 14 days will greatly reduce the overall amount of infection the household could pass on to others in the community
- for anyone in the household who starts displaying symptoms, they need to stay at home for 7 days from when the symptoms appeared, regardless of what day they are on in the original 14 day isolation period. (See ending isolation section below for more information
- if you can, move any vulnerable individuals (such as the elderly and those with underlying health conditions) out of your home, to stay with friends or family for the duration of the home isolation period
- if you cannot move vulnerable people out of your home, stay away from them as much as possible
- if you have coronavirus symptoms:
- do not go to a GP surgery, pharmacy or hospital
- you do not need to contact 111 to tell them you’re staying at home
- testing for coronavirus is not needed if you’re staying at home
- plan ahead and ask others for help to ensure that you can successfully stay at home and consider what can be done for vulnerable people in the household
- ask your employer, friends and family to help you to get the things you need to stay at home
- wash your hands regularly for 20 seconds, each time using soap and water, or use hand sanitiser
- if you feel you cannot cope with your symptoms at home, or your condition gets worse, or your symptoms do not get better after 7 days, then use the NHS 111 online coronavirus service. If you do not have internet access, call NHS 111. For a medical emergency dial 999
Information relating to stay at home guidance for people with confirmed or possible coronavirus us here:
Employers can check up to date health advice here:
Social distancing advice
This group includes those who are:
- aged 70 or older (regardless of medical conditions)
- under 70 with an underlying health condition listed below (ie anyone instructed to get a flu jab as an adult each year on medical grounds):
- chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis
- chronic heart disease, such as heart failure
- chronic kidney disease
- chronic liver disease, such as hepatitis
- chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), a learning disability or cerebral palsy
- problems with your spleen – for example, sickle cell disease or if you have had your spleen removed
- a weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets or chemotherapy
- being seriously overweight (a BMI of 40 or above)
- those who are pregnant
There are some additional groups who may be at a particular risk due to complex health problems further details can be found here:
Social distancing measures are steps that can be taken to reduce the social interaction between people. Which will help reduce the transmission of coronavirus.
- Avoid contact with someone who is displaying symptoms of coronavirus. These symptoms include high temperature and/or new and continuous cough;
- Avoid non-essential use of public transport, varying your travel times to avoid rush hour, when possible; 3.Work from home, where possible. Your employer should support you to do this. Please refer to employer guidance for more information;
- Avoid large gatherings, and gatherings in smaller public spaces such as pubs, cinemas, restaurants, theatres, bars, clubs
- Avoid gatherings with friends and family. Keep in touch using remote technology such as phone, internet, and social media.
- Use telephone or online services to contact your GP or other essential services
For those who are over 70, have an underlying health condition or are pregnant, the government strongly advise to follow the above measures as much as you can, and to significantly limit your face-to-face interaction with friends and family if possible.
An employer may wish to place anyone social distancing or shielding on the Corona Job Retention Scheme. See our guidance on how to place someone on Furlough Leave.
If an employee is unable to work due to shielding and social distancing measures, then they may also be eligible for SSP effective from 16th April 2020.
Further advice on social distancing can be found here:
What if someone suddenly becomes unwell at work?
If someone becomes unwell at work, and especially if they have come back from an area affected by coronavirus move the employee to an isolated area behind a closed door, avoid touching anything where they can and ensure they cough or sneeze into a tissue (and place this into a bin) or in the absence of a tissue the crook of their elbow. Use a separate bathroom from others, if possible.
Ask them to use their own mobile to call 111 for NHS advice, they should advise the operator of their symptoms and take instructions from the operator.
What to do if an employee does not want to come into work?
If an employee tells you that they do not wish to attend work due to fear of catching the coronavirus the employer should adopt an empathetic approach. Genuinely listen to the employee’s concerns; and whether these could be addressed by alternative options.
You may consider alternative arrangements such as home working or flexible working. Or you may mutually agree to a period of unpaid leave.
During his recent podcast Daniel Barnett, an employment law barrister concluded that dismissing someone because an employee genuinely fears catching the coronavirus would be likely to be outside the range of reasonable responses for a fair dismissal, albeit dependent on the time that the employee is unwilling to attend work.
In addition where the fear is exacerbated by an underlying history of anxiety or depression employers should endeavour to resolve the employee’s concerns sensibly.
How should employees report absence if they are unwell or required to self-isolate?
The employee should follow their employer’s attendance management policy as normal if they are unwell or have been advised to self-isolate, are self-isolating in line with NHS guidance or have been confirmed as having COVID-19.
Medical evidence is not required for the first seven days of sickness (according to the law), ie employees can currently self-certify those the first seven days. After seven days, it is up to employer to decide what evidence (if any) they require from the employee. This does not need to be fit note (Med 3 form) issued by a GP or other doctor.
The NHS has now released an Isolation Note for employees to submit to their employers to cover their absence after 7 days for a period of self-isolation due to the coronavirus. This can be obtained from here:
However, the Government guidance strongly suggests adopting discretion around the need for medical evidence for a period of absence where an employee is advised to stay at home due to suspected coronavirus or self-isolates following NHS guidance.
Sick pay entitlement
There are different scenarios that may apply and why an employee or worker may be unavailable for work. Employees and workers must receive any Statutory Sick Pay (SSP) due to them if they need to self-isolate due to any of the circumstances outlined below:
- they have coronavirus
- they have coronavirus symptoms, for example a high temperature or new continuous cough*
- they've been told to self-isolate by a doctor or NHS 111
*these are new provisions that came into force on the 13th March under the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020. That SSP will be available to anyone isolating themselves from other people in such a manner as to prevent infection or contamination with coronavirus, in accordance with guidance published by Public Health England, NHS Scotland or Public Health Wales.
Effective from 16th April 2020, it has also been advised that those social distancing and shielding, and subsequently unable to work may also be eligible for SSP.
Statutory Sick Pay is currently £95.85 per week. Employees and workers will need to meet the eligibility conditions to qualify for SSP (they earn on average at least £120 per week, before tax) and it may be paid by the employer for up to 28 weeks.
Agency, casual and zero-hours workers can get SSP if they meet the eligibility conditions. Those who are not eligible for SSP, for example the self-employed or people earning below the Lower Earnings Limit of £120 per week, are being directed to claim for Universal Credit or Contributory Employment and Support Allowance:
SSP entitlement extended
On 17 March 2020 the government published details of the Coronavirus Bill (COVID-19) Bill and set out proposed emergency legislative measures to address the 2019 novel coronavirus disease (COVID-19) outbreak. The legislation will be time-limited for two years. Not all measures will come into force immediately but they may be brought in when needed.
The government will be able to temporarily suspend the rule that means Statutory Sick Pay (SSP) will be payable for the first three days of sickness absence (known as 'waiting days'). This provision will have retrospective effect from 13 March 2020. Employers with fewer than 250 employees will be able to reclaim SSP paid in respect of the first 14 days of sickness absence related to COVID-19. The scheme for this to be reclaimed has not been set up as yet.
Contractual sick pay
In some cases contractual sick pay entitlement will apply to employees (and the contract of employment should stipulate that this includes provision for SSP). However at present an employer is only required to pay contractual sick pay for employees who are actually sick, as opposed to ones that are following advice to self-isolate (although they will qualify for SSP). In the circumstances and in the interests of employee relations the employer may wish to consider paying the contractual sick pay entitlement in all of the scenarios outlined above (subject to their financial position).
Absence notification - isolation notes
What if an employee needs time off work to look after someone else?
In this scenario the employee is not sick themselves but someone who "reasonably relies on the employee for assistance if ill or injured or to make arrangements to provide care for them" is. Examples could be where an employee needs to look after children due to an unplanned school closure, or they need to look after their child or another dependant if they are sick, or need to go into isolation or hospital.
This is a statutory (legal) right called Time off for dependants and this applies to all employees irrespective of their length of service. The time off is typically unpaid, although some contracts allow for paid time off for dependants.
A "dependant" is defined as a spouse, civil partner, child or parent (but not grandparent) of the employee, or a person who lives in the same household as the employee (excluding tenants, lodgers, boarders and employees).
Employees have the right to take a "reasonable" amount of unpaid time off work to take "necessary" action to deal with particular situations affecting their dependants. The time off is to deal with the immediate crisis as opposed to enabling employees to take time off to provide personal care for a sick dependant.
The amount of time off an employee takes to look after someone must be reasonable for the situation. For example, they might take 2 days off initially, and if more time is needed, they can book holiday.
What if an employee needs time off work to look after someone else for more than a couple of days?
One alternative for circumstances where care is required for longer periods is that some employees may have the right to take parental leave to provide longer-term care for an ill child or in the cases where schools are not open.
Parental leave is a form of statutory unpaid leave available to some working parents. The total amount of unpaid leave that can be taken per child is 18 weeks, and a maximum of 4 weeks per year may be taken for each child. The leave must be taken before the child’s 18th birthday.
Parental leave is available to employee’s who have more than one years’ service and have or expect to have responsibility for a child. It would be sensible for employers to consider relaxing the eligibility requirement for parental leave, given the unique circumstances.
Where the employee chooses to self-isolate
In some instances an employee may choose to self-isolate as a precautionary measure. If the employee hasn’t visited any of the areas the government has identified as being affected and is not following guidance from Public Health England, NHS National Services Scotland or Public Health Wales to self-isolate there is no statutory right to be paid if they are not unwell or displaying any symptoms.
Again as an employer try to genuinely listen to the employee’s concerns; and whether these could be addressed by alternative options such as working from home. 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.
Some employees who suffer from certain health conditions are at higher risk of serious illness or death if they contract COVID-19. A requirement imposed by an employer to continue travelling to and attending work, or to not pay or to dismiss them due to their absence in this scenario, could amount to discrimination. In addition, if the reason the employee self-isolates is because of a disability that puts them into a high risk category such as an auto-immune disease or a respiratory condition e.g. asthma, disability discrimination issues may arise.
Where the employee is not ill and the employer requires the employee not to come to work
This could be a scenario where the employee has returned from an affected area (see the current list) here, and the employer requests that the employee stay at home, as there is a risk that they could spread the virus, if they have it. The employee should receive full pay and benefits in this scenario.
How do I assess whether an employee should travel to another country on business?
Consider if the travel is absolutely necessary, or if the purpose of the travel can be fulfilled using electronic meeting methods such as Skype / Microsoft Teams.
Check the current travel advice issued by Public Health England, by clicking on the following link: UK Gov Coronavirus Travel Advice.
The travel situation is changing daily with different countries declaring travel bans.
If there are no particular travel restrictions, check that the employee is comfortable to travel. There may be good reasons why an individual may be reluctant to travel (e.g. pre-existing health conditions, having caring responsibility for vulnerable family members etc.) so it is important that you work together with your employee to take into account their situation and concerns as part of the overall assessment.
As part of the travel risk assessment, consider ways to limit time spent with large groups of people who may have travelled from other countries (for example: selecting direct flights to a destination rather than connecting via a ‘travel hub’ airport).
Before travelling to other countries, also ensure that you have spoken with the individual(s) you are going to meet to ensure there are no restrictions in place that would prevent them from receiving you.
An employee has returned from abroad. Should they come into work?
Public Health England has specific advice for returning travelers, including immediate family members, which is kept up to date. Depending upon the coronavirus situation in each country this advice ranges from individuals placing themselves in isolation through to carrying on as normal.
To find out the up to date guidance for a particular team member’s circumstance, click on the following link: UK Gov - Advice for Returning Travellers
What happens if I need to close the workplace?
Where employees can work from home, or there are tasks which can be reallocated to be undertaken at home e.g. admin paperwork, this should be initially considered. Also give consideration as to how communication between you and your employees can be facilitated e.g. online systems such as Slack.
Unless you have a lay-off and short-time working clause within your contracts of employment you will still be required to pay staff whilst they are absent from work, if the workplace is closed.
A lay-off is where employees are not provided with work by their employer and the situation is expected to be temporary, it may be that closure due to coronavirus could fall into this category.
Employees can be laid off without pay where there is a specific term in their contract allowing the employer to do so. When an employee is laid off, they might be entitled to a statutory guarantee payment from the employer, limited to a maximum of five days in any period of three months. The daily amount is subject to an upper limit which is currently £30.00 per day (and reviewed annually in April). On days when a guarantee payment isn't payable, it may be possible to claim Jobseekers Allowance through the local Jobcentre Plus office.
Consideration should be given by the employer from an employee relations perspective of the impact of invoking a lay-off clause across the workforce.
How does the coronavirus job retention scheme (CJRS) work?
On Friday 20th March the Chancellor announced a raft of measures to support all business (including not for profits, LLPs, sole traders). The announcement included the coronavirus employee retention scheme. In summary a scheme to mitigate job losses, whereby the government will fund 80% of an employee’s salary up to a cap of £2,500 if they are placed on a ‘temporary leave of absence from work’ and changing their employment status to a category of 'furloughed workers'. It is the businesses decision whether to take advantage of the scheme. It is not compulsory.
The concept of furloughed workers is not a concept which has any definitive meaning in employment law. It simply refers to a group of employees who cannot work due to coronavirus.
The guidance advises employers to designate effective employees as furloughed workers and notify them in writing. However changing their status remains subject to existing employment law.
Once the employees are categorised as ‘furloughed workers’. The payment of 80% of wages is claimed from HMRC via an online scheme which is now open. The scheme applies to all those individuals who fall under PAYE (therefore 'workers' are not yet confirmed as eligible but apprentices, agency workers and Directors are eligible). For salary paid staff, the 80% is calculated from their last pay period prior to 19 March 2020. For staff were pay varies, the 80% payment is calculated with reference to earnings of the higher of:
- the same month's earning from the previous year; or
- an average of monthly earnings from the 2019-2020 tax year.
This means the employer will be able to claim for regular payments they are obliged to pay staff such as overtime. The £2500 cap is a gross payment. An employer can also claim for national insurance and mandatory pension contributions. Discretionary bonuses and commission is not included, however any compulsory overtime, fees and commission can be claimed back up to the 80% of past sales.
The employer must agree in writing with the employee that they are categorised as a 'furloughed' worker and that the employee agrees to not undertake any work for their employer during the period of Furlough Leave.
The scheme will be effective from 1 March 2020 and will be open until 31st May 2020. It was announced on 17th April that the scheme will be extended until 'End of June.' Staff need to be on Furlough Leave for a minimum of 3 weeks (21 calendar days) for the employer to be eligible to claim the 80% grant.
Effective from 17th April 2020, the government confirmed an employer can claim for furloughed employees that were on your PAYE payroll on or before 19 March 2020 and which were notified to HMRC on an RTI submission on or before 19 March 2020. Employees that were employed as of 28 February 2020 and on payroll (i.e. notified to HMRC on an RTI submission on or before 28 February) and were made redundant or stopped working for the employer after that and prior to 19 March 2020, can also qualify for the scheme if the employer re-employs them and puts them on furlough.
Staff can be categorised as a Furloughed Worker multiple times, as long as each period of leave lasts a minimum of 3 weeks.
Holidays and other benefits such as car allowance and health insurance will continue to accrue through periods of Furlough Leave. Where an employee takes a period of holiday during furlough, the employer will need to top up the pay to 100%.
The majority of staff are thought to be eligible for the leave, as long as they:
- have been on the PAYE prior to the 19th March 2020
- they are not currently on reduced hours or reduced pay
- they are not self-isolating or on sick leave (however those who are 'Shielding' can be eligible)
During a period of Furlough Leave, staff cannot perform work that creates revenue for their organisation, however they can carry out training or volunteering. If staff are training, they must receive at least the National Minimum wage. Therefore the Employer may have to 'top up' an employee's salary.
An employee may wish to seek secondary employment with another employer during a period of Furlough Leave. This is not prohibited but will be down to any terms in their contract of employment with you.
Further guidance can be found here:
How to designate employees as 'furloughed workers'
Basically, the employer will need to agree to the individual being designated as a ‘furloughed worker’. This agreement needs to be in writing confirming that the employee agrees to not work for the employer (and if applicable the relevant deduction in pay).
Firstly plan, this will entail identifying which skills are critical / essential to maintain the business for the interim period.
Where the business is ceasing to trade e.g. a shop, cinema, restaurant it will be more straightforward to choose who to place on leave. However where the business is continuing its operations albeit remotely or as a skeleton shift this will be less straightforward.
It is however a business decision and you should ensure you have a rationale or audit trail as to how you have decided this which is fair and also avoids any discriminatory issues.
Speak with the employee (one to one) and let them know the situation and the solution that you propose.
Discuss with them how you have come to the conclusion that they will be placed on furlough leave and that this is a temporary measure. They will not be expected to work and will receive 80% of their pay. Some employers may choose to pay the 20% difference; this is a business specific decision. Some employers may choose to 'glide path' the difference over 3 months e.g. month 1 100%, month 2 90% etc. If you are not paying the difference explain the rationale for this (the business may be in distress financially).
Furlough Leave should be effective from a specific date. Currently we understand the government scheme runs from 1st March and is effective initially for 3 months but has now been extended until end of June.
Explain you will continually review the furlough leave and endeavour to get them back to work, and you will maintain communication with them during this period, even though they are not required to work.
Some employers have been encouraging their employees to undertake voluntary work, albeit the employer cannot insist on this, and it would need to be in line with the current government guidance in play. So currently this would mean volunteering remotely, or for an essential job for example. It is not clear currently if you are a not for profit it en employee can 'volunteer' for their employer. This is to be confirmed our view is that this would be unlikely to be allowed, but this has to be confirmed.
You must obtain their consent to the change. If no consent is given, listen and hear their concerns. In some circumstances you may need to explain that this is a means to avoid redundancy or other measures such as lay-off without pay or short-time working. But again this is business specific. To focus here should be to understand their point of view and seek agreement.
Be open about the position the company is in, honest and seek their feedback and suggestions to the situation.
Answer any questions the individual has.
Issue a letter where you obtain written agreement to the furlough leave this should include a date when they need to respond by and their signature agreeing to the arrangements.
In some cases where employees are already at home we have asked them to provide a photo of the signed letter and email/text it to the employer. And then send the hard copy in the post.
Monitor the situation. Do not leave them on furlough indefinitely. Stay in regular communication with the individual to keep them updated.
Only make the change effective if you have their consent. If you need a template letter to use or are unable to obtain consent then please get in touch.
The above is written in line with the information available as at 17th April 2020 and the advice we are providing our clients currently, as we await further government guidance on a wide range of issues relating to this area.
As an alternative to lay-offs or furlough leave the employer could consider requiring employees to use their holiday entitlement.
Contrary to popular opinion employers have the legal right to tell employees and workers when to take holiday if they need to. For example, they can decide to shut for a week and everyone has to use their holiday entitlement.
If the employer does decide to do this, they must legally tell staff at least twice as many days before as the amount of days they need people to take.
For example, if they want to close for 5 days, they should tell everyone at least 10 days before. If they want to close for 10 days they need to give everyone at least 20 days' notice.
This could affect holiday staff have already booked or planned. So employers should:
- keep the workforce updated and explain clearly why they need to close
- try and resolve worries about how it will affect holiday entitlement or plans
Employers should be mindful of the employee relations with its staff, some employees may not be happy with the prescriptive holiday arrangements, however this may be preferable to a lay-off (if the contract allows for this). Employees will however need to balance this with the needs of the business and the context of the pandemic.
Communicating with your employees
Clear communication with your employees during the pandemic is critical and employers should seek to engage with and update their employees on a regular basis.
You may wish to write to your employees and provide guidance relating to their responsibilities in relation to the coronavirus, you could also consider writing to employees to confirm your approach to sick pay.
The World Health Organisation also has a practical video that could be shared with employees in terms of health education here:
Finally you should also consider issuing guidance to visitors to your site(s) and update employees with the guidance issued so they are aware of your protocols.
Pregnant women may be particularly vulnerable if they catch the virus and the employer has additional responsibilities to protect pregnant employees from risk whilst at work. You may need to consider additional measures and consider undertaking a risk assessment (which should be undertaken when the employee advises the employer of their pregnanacy), discussion is critical here, and mutual agreement is key.
There have been a number of reported racist incidents linked to the coronavirus outbreak where Chinese nationals have been specifically targeted. Employers should also be alive to the mistreatment of Chinese or Italian nationals or other nationals from other 'hotspot’ countries and remind staff of your harassment policies, and take action if any alleged mistreatment arises.
Employers will be liable for harassment or discrimination by their employees towards other employees, except where they have taken reasonable steps to prevent the conduct. Employers will be unable to rely simply on a policy that states that discrimination and harassment is not tolerated. Further steps, such as training and evidence of inappropriate behaviour being tackled, must also be taken for an employer to avoid liability.
Practical steps employers can take now
From an employment perspective practical steps employers can consider at this stage of the pandemic are:
- Communicate as much as possible with your team, this is vital so they are aware of the steps the company is taking and you will need employee buy-in to ensure the business can operate effectively during the pandemic
- Obtain up to date contact details for all employees and their emergency contact numbers (more than one contact if possible)
- Identify those employees who fall into the vulnerable adults category who you believe may be at risk and create a risk register to identify what control measures you will put in place to minimise/mitigate these. Speak to each employee to agree a plan
- Remember any health data that you store will be sensitive personal data for the purposes of Data Protection and GDPR, so this must be appropriately password protected and not shared other than on a need to know basis and stored in a secure place
- Consider home working and flexible working arrangements and implement these
- Consider varying shift arrangements to limit the number of employees working at any one time
- Consider minimising contact in the workplace, separating your management team, and separating business critical employees so you have contingency in the event of illness
- Minimise non-essential business activities e.g. networking / meetings / training etc.
- Consider asking employees if they will take annual leave
- Consider requiring employees to take annual leave (subject to the employer notice provisions see the section on Using holidays)
- Consider asking employees if they can reduce hours voluntarily
- Review your contracts and identify if these have a lay-off clause
- Some employees may be anxious consider what arrangements you have in place or can signpost for support with mental health