Employee rights and coronavirus #SolicitorChat with The Law Society.

As many businesses begin to re-open and employees start to return to work, many people may have concerns about how safe their workplace is during the pandemic. What responsibilities employers have with regard to maintaining a safe workplace and what rights employees have if they refuse to return to work if they feel that these needs have not been met. We discussed this and more during #SolicitorChat.

Join The Law Society and other firms discussing a different topic each week on Thursday mornings at 0900-1000.

What are the current restrictions for businesses opening during the pandemic and what guidelines are in place to protect employees?

It depends on the type of business you are and where you are.

Most business can now open providing they can meet the government guidance on how to operate safely. This can change so any business should review the government website for details and updates on their own business from time to time.

Currently pools and indoor water parks will be permitted to open as well as sports facilities and venues, such as indoor gyms, fitness and dance studios, indoor swimming are still closed but from 25 July, but it’s subject to assessment the evidence at the time regarding the rates of transmission. That could change.

There are also local restrictions in place, such as in Leicester.

Employees of businesses can be protected as stet out in response to other questions. In practical terms, there may be specific government guidelines to protect both business users and employees, such as the recent rules on masks in shops. This can change rapidly so businesses should review the government sites (and not just rely on statements from ministers, or the PM which can be contradictory!)

Regardless of government guidelines, any business has obligations to its employees to provide a safe place of work and under the Health & Safety at Work Act or liability for premise, to provide a safe place for customers/visitors which have to be observed. Risk assessment should be carried out to ascertain what the risks are and to take action accordingly.

Is an employee entitled to refuse to return to work during the coronavirus pandemic if they feel their workplace is not safe?

Where an employee falls into the “clinically vulnerable” category, the employer can’t require them to come into work if their role cannot be carried out remotely before until at least 1 August (in England)

Clinically vulnerable people (see Individuals classed as “clinically vulnerable” in England) are advised to stay at home as much as possible and take “particular care” to minimise contact outside of their household.

From 1 August, the clinically extremely vulnerable should keep two metres away from people outside of their household or bubble wherever possible. However, no specific amendments were made to the Work and employment section of the Shielding guidance, which does not refer to physical distancing on return to work.

Potential discrimination issues where an employee refuses to attend work because they have a disability which they believe puts them at high risk of serious illness if they catch COVID-19

If there is no discrimination angle, and the public health advice is such that the employee could reasonably be asked to continue to attend work then it is possible that the employee could be investigated for misconduct in terms of their refusal to follow a reasonable management instruction, and their unauthorised absence.

If the absence is unauthorised then the employee would likely not be entitled to pay as they are not willing to attend work

However, the context of the refusal to attend work would need to be closely considered before disciplinary action were taken. Certain dismissals related to the raising of health and safety concerns amount to automatically unfair dismissals which do not require qualifying service and action short of dismissal on these grounds could amount to a detriment which is unlawful under section 44 of the ERA 1996.

The Working safely guidance provides that those who are in the clinically vulnerable group should be strongly advised to follow the Social distancing guidance.

The government’s subsequent relaxation of some of the restrictions on leaving home has not changed the fact that the public should only travel to work where they cannot work from home

On 24 June 2020, the government published new social distancing after 4 July guidance which has now replaced the previous guidance. The position in relation to requiring an employee to attend their workplace has not really changed in the guidance from before 4 July, although there is a change of emphasis in favour of the needs of the business:

“People who can work from home should continue to do so. Employers should decide, in consultation with their employees, whether it is viable for them to continue working from home.”

The Staying safe outside your home guidance was also updated on 24 June and provides:

“If you can do your job from home you should continue to do so, but you and your employer should discuss and agree working arrangements to best suit the needs of the business.”

However, the relaxation of the legal position on movement during lockdown does not change an employer’s responsibility to consider the risk that attending work poses to those who are defined as clinically vulnerable and those in other vulnerable groups.

If the employer is one which is permitted to continue operating, it should consider its position very carefully before requiring an employee to come into work if they fall into one of the vulnerable categories identified, irrespective of the position in the Working safely guidance

To do so could amount to a breach of the employer’s duty of care to the employee and a breach of the implied term of mutual trust and confidence and/or discrimination.  Grievance

This could amount to a repudiatory breach of contract resulting in a claim for constructive dismissal to attend work because they have a disability which they believe puts them at high risk of serious illness if they catch COVID-19,

The right to refrain from attending work due to a serious and imminent danger could also be invoked by the employee

Further, where an employee from one of the vulnerable groups subsequently contracts COVID-19 due to their employer’s actions, they will potentially have a claim for personal injury against the employer.

Question of fact.

If an employee is isolating due to them or a member of their household showing coronavirus symptoms, what sick pay are they entitled to?

In order to qualify for statutory sick pay (SSP) an employee must be absent from work due to incapacity. Where an employee has not, at the point they cease to work, either been diagnosed with COVID-19 or exhibited symptoms, it is unlikely that their absence will meet the definition of a day of incapacity set out in section 151(4), Social Security Contributions and Benefits Act 1992 to be:

“A day on which the employee concerned is, or is deemed in accordance with regulations to be, incapable by reason of some specific disease or bodily or mental disablement of doing work which he can reasonably be expected to do under that contract”.

However, regulation 2 of the Statutory Sick Pay (General) Regulations 1982 was amended (by the inclusion of a new regulation so that certain absences related to COVID-19 could be deemed to be days of incapacity. Since it came into force on 13 March 2020, regulation 2(1) (c) has been amended six times. The changes to regulation 2(1) (c) are considered below.

Regulation 2(1) (c): COVID-19 and deemed incapacity

On 13 March 2020, :”A person who is not incapable of work of which he can reasonably be expected to do under a particular contract of service may be deemed to be incapable of work of such a kind by reason of some specific disease or bodily or mental disablement for any day on which he is:

(i) isolating himself from other people in such a manner as to prevent infection or contamination with coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales and effective on 12th March 2020; and

(ii) by reason of that isolation is unable to work.”

On 17 March 2020, two small changes the reference to “coronavirus disease” was reduced to “coronavirus” and a definition that this meant “severe acute respiratory syndrome coronavirus

The date of the guidance was changed from 12 to 16 March 2020. That followed publication on 16 March 2020 of the updated Stay at home guidance, stating that if an individual lived with others and they or someone in their household had symptoms of COVID-19, all household members had to stay at home and not leave the house for 14 days.

Self-isolation: symptoms or living with someone with symptoms

On 28 March 2020, Regulation 2(1) (c) was amended to provide that a person was deemed incapable of work where he is:

“(i) isolating himself from other people in such a manner as to prevent infection or contamination with coronavirus, in accordance with the schedule; and

(ii) By reason of that isolation is unable to work.”

The Schedule stated that a person was deemed to be incapable of work because they were self-isolating to prevent infection or contamination from coronavirus where:

They have symptoms of coronavirus, however mild, and are staying at home for seven days, beginning with the day on which the symptoms started (day 1).

They live with someone who is self-isolating (as above) and are staying at home for 14 days, beginning with day 1. (On 6 July 2020 this was extended to include someone in their extended household or linked household, as defined: see Amendments to shielding and extension to those in “bubbles”.)

They are already self-isolating in accordance with the second bullet (above), develop the symptoms of coronavirus, however mild, and are staying at home for seven days, beginning with the day the symptoms started.

Symptoms of coronavirus are defined by the Schedule to be the recent onset of a continuous cough and/or a high temperature or any other symptoms of coronavirus as may be specified by the Chief Medical Officer or one of the Deputy Chief Medical Officers in guidance as amended from time to time.

Under the rebate scheme, an employer can recover up to two weeks’ SSP per eligible employee where the first day of incapacity due to COVID-19 fell on or after 13 March 2020 (see Practice note, Sick pay: COVID-19: Coronavirus SSP Rebate Scheme).

However, although an employee may be eligible for SSP on more than one occasion due to COVID-19, it does not appear that an employer can make multiple claims for one employee from HMRC.

You can get £95.85 per week Statutory Sick Pay (SSP) if you’re too ill to work. It’s paid by your employer for up to 28 weeks. You must be eligible for SSP.

What rights to leave does an employee have if they must take time off work to look after a dependant?

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 right is set out in sections 57A and 57B of the Employment Rights Act 1996 BERR (now BEIS) published guidance (BEIS Guidance) to assist employers and employees (see Time off for Dependants: A guide for employers and employees).

The statutory right to take unpaid time off for dependants:

Applies to employees only.

Applies to all employees, irrespective of their length of service, or whether they work full-time or part-time or are employed on a permanent, temporary or fixed-term basis.

Applies to both male and female employees. There may be occasions where both parents wish to take time off to care for a dependant. The BEIS Guidance anticipates this and advises employers to take a “common-sense” approach when determining whether this is necessary and reasonable.

Does not apply to the armed forces, members of the police force and certain fishermen.

This legislation provides that an employee is entitled to take reasonable time off where it is necessary:

To provide assistance if a dependant falls ill, gives birth, is injured or assaulted

To make care arrangements for the provision of care for a dependant who is ill or injured

In consequence of the death of a dependant

To deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant

To deal with an unexpected incident which involves the employee’s child during school (or another educational establishment’s) hours.

An employee only has a statutory right to take time off for dependants if the situation falls within one of those categories listed above. Other events, such as a house fire or the central heating system breaking down, remain a matter to be dealt with via policy, contractual or ad hoc arrangements between the employee and their employer.

Further, the statutory regime does not apply to planned time off to care for dependants; for example, to take them to a planned medical appointment. If the time off relates to a child under 18 the employee may take unpaid parental leave, but this is usually only available following the requisite notice and in weekly “blocks”

Alternatively, it may be possible for the employee to agree unpaid or annual leave with the employer or temporary or permanent flexible working arrangements

 Where a dependant is ill or injured the ERA 1996 provides employees with a right to take time off to make arrangements for the provision of care for that dependant. The BEIS Guidance states that this could include arranging to employ a temporary carer or taking a sick child to stay with relatives.

Again, this right does not enable the employee to take additional or ongoing time off to care for the dependant themselves.

What can an employee do if they feel they are being put at risk or treated unfairly by their employer during the coronavirus pandemic?

Discuss; Explain concerns; In writing; Grievance?; Stress/Sick leave if medical reason –

Where an employee falls into the “clinically vulnerable” category, and some of the potential discrimination issues

If there is no discrimination angle,

Certain dismissals related to the raising of health and safety concerns amount to automatically unfair dismissals which do not require qualifying service and action short of dismissal on these grounds could amount to a detriment which is unlawful under section 44 of the ERA 1996.

Constructive dismissal

“Clinically vulnerable people” are advised to stay at home as much as possible and take “particular care” to minimise contact outside of their household.

.If the employer is one which is permitted to continue operating, it should consider its position very carefully before requiring an employee to come into work if they fall into one of the vulnerable categories identified, irrespective of the position in the Working safely guidance

To do so could amount to a breach of the employer’s duty of care to the employee and a breach of the implied term of mutual trust and confidence and/or discrimination. This could amount to a repudiatory breach of contract resulting in a claim for constructive dismissal to attend work because they have a disability which they believe puts them at high risk of serious illness if they catch COVID-19,

The right to refrain from attending work due to a serious and imminent danger could also be invoked by the employee

Further, where an employee from one of the vulnerable groups subsequently contracts COVID-19 due to their employer’s actions, they will potentially have a claim for personal injury against the employer.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP

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