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Partner - Head of Employment
Employment & Employment & HR
There is a lot of uncertainty at the moment in light of the Covid-19 crisis we are all facing. However, we are getting some questions to which we can provide some certainty as we navigate these uncharted waters. Please have a read of our FAQs below to help guide you, your business and your job through these extraordinary and difficult times.
27 March 2020
If you cannot find the answer you are looking for or would like some more bespoke advice, please call our Coronavirus Employment Advice Helpline for up to 30 minutes of free legal advice to guide you through the new challenges we are facing.
Q: Employers have to pay employees who are on sick leave have been diagnosed with Covid-19. Do they have to pay employees who are off sick with Covid-19 symptoms but have not been diagnosed, and those who have no symptoms but need to self-isolate for other Covid-19 related reasons?
A: Yes. If an employee has symptoms which mean they are too ill to either come into work (if the need for the employee to go to a physical workplace is essential and/or they are a key worker), or too unwell to even work at home, then that employee is entitled to the employer’s usual sick leave and pay provisions including statutory sick pay. The statutory sick pay three-day waiting period will be temporarily removed for Covid-19 related absences, and this legislation will backdate to 13 March 2020. If an employee has not tested positive for the virus, does not have symptoms, and is self-isolating in accordance with public health guidance to prevent the spread of the virus and is unable to work by reason of isolation, the same rules apply as if they themselves were sick so that employee is entitled to the usual sick leave and pay provisions of their employer.
Q: Now that the schools are closed, do we have to allow employees to work from home if a dependent needs care?
A: This should now rarely be an issue. Everyone must now stay at home unless physically attending work is absolutely essential. With that in mind, the vast majority of parents and guardians will already be working from home and able to provide childcare. This is especially true now all shops except those supplying basic necessities such as food and medicine, entertainment venues, restaurants, hotels etc have been forced to close. Those who do still need to go to a workplace because they are key workers can still send their children to school so the childcare requirements should be no greater than usual. In situations where an individual cannot work from home but needs to stay home to look after a child (for example, if the child becomes sick with Covid-19 and cannot go to school), that employee is entitled to the usual sick leave and pay provisions of their employer because they themselves would need to self-isolate (see above).
Q: If an employee is stuck abroad and unable to get home, will the employer have to pay them anyway?
A: Not necessarily. If the employee can work remotely from abroad they should do so, and they will be entitled to all their usual pay and benefits just as if they were physically in the office. If an employee is fit for work but cannot work because they are stuck abroad, there is no legal entitlement to pay unless an employment contract or policy explicitly grants this right to the employee. However, it would be best practice for an employer to discuss other options with the employee (such as discussing whether the employee would take extra paid holiday) to maintain good employee-employer relations. If the employee is stuck abroad because the employer sent them on the trip in the first place, the employee will have a reasonable expectation of payment. In those circumstances, even though there may be no legal requirement for the employer to continue paying the individual, it is likely to be very harmful to the employee-employer relationship and could have a negative reputational impact for the employer if the employer were to refuse payment to the employee.
Q: If an employer has to, or chooses to, close the workplace entirely, do employees still have to be paid?
A: Yes, except in the case of laying off. If an employer decides to close the workplace for a temporary period they will usually need to keep paying their employees. Most of the time this won’t be an issue as employees can continue to work from home. However, if they cannot work from home, employees must still be paid because they are willing and able to work but the employer is not providing them with that option. Having said that, if there is a laying off situation (i.e. employees are provided with no work or pay for a period of time) and the employment contract allows for laying off then the employer will not have to pay the employee. It is unusual for that kind of provision to be drafted into an employment contract though and unilateral imposition of laying off employees could result in claims for unlawful deduction of wages, breach of contract and constructive dismissal.
To avoid this, some employers are making redundancies but that is not always necessary. The are other options which can work for both businesses and their employees while we get through this period of uncertainty. For alternatives to making redundancies, please read our article Coronavirus: Six Alternatives to Making Redundancies.
Q: Can an employer force an employee to take their holiday allowance?
A: Potentially. Firstly, both parties should check the employment contract which may well have provisions for this. Whatever has been agreed in the contract stands. If the contract is silent on enforced holiday allowance or if it is unclear, the employer is able to require the employee to take their holiday allowance as long as they give the employee notice which is twice as long as the forced holiday period.
Q: Can employees cancel their pre-approved holiday request?
A: Generally, yes. Usually pre-approved holiday can only be cancelled if the employer agrees. Most employees are likely to want to keep their employees working to help lessen the impact of Covid-19 on their business, so in reality it is likely that employers will agree. If, however, the employer does not consent to cancelling the employee’s holiday then the holiday will stand. The exception is if the employee is sick in which case the employee has the right to postpone their holiday. Unless the employment contract states otherwise, the employee can only carry forward their four-week holiday entitlement from one holiday year into the next if it is unused due to sickness.
Q: Can an employer delay the start date of a new joiner or withdraw the offer?
A: Yes. The current situation is unprecedented, and due to pressure on both the employer and new joiner it may well be possible to negotiate a new start date with the new joiner which should be the first avenue pursued. Where this is the case the employer should confirm the new date to the new joiner in writing. If it is not possible to agree a new start date, for example because the new joiner will not agree to this, an employer can withdraw the job offer if the new joiner has not already accepted the offer or terminate the contract. If it is necessary to terminate the contract, the contract and offer letter should be checked for any agreed notice period. There may be an option for an employer to terminate the contract before the new joiner is due to start by making a payment in lieu of notice. As the employer is only bound to pay notice for the period when the employee was due to be working and receiving pay, it is possible that the new joiner may be given notice which expires before the new joiner was due to start so no actual payment is paid. Failure to terminate the contract properly and in accordance with the law could lead to a breach of contract claim.
Q: Some employers carried out temperature and other health checks on employees in the work place before the national work from home policy was implemented. Can an employer legally collect health data from its employees and ask employees to tell them if they may have Covid-19?
A: Yes. An employer can collect health data on its employees and ask individuals to self-report. However, this does not mean the employer can collect unnecessary and large quantities of this data. For example, it would probably be disproportionate to ask an employee about symptoms and record this information because that is something which really should be limited to the public health authorities- it is beyond what the employer needs to know. The employer must also be extremely cautious about how it uses and stores the data it can proportionately collect and with whom it elects to share that data. It would be advisable for an employer to record its rationale for collecting data so that it can demonstrate need, and also record how the data is adequately safeguarded in case it is later challenged regarding the health data it has collected and stored.
Q: Can a company share health information of one of its employees with authorities for public health purposes?
A: Yes. Data protection laws allow this. However, now that we have all been told, rather than advised, by the government to stay at home unless it is absolutely essential that we physically go to work it is unlikely that the vast majority of employers would be in a position where they would have to share this information because most people are effectively self-isolating anyway.
Q: There is a lot of additional pressure on businesses in light of the current pandemic. Will the ICO relax its usual standards and deadlines for compliance with data subject access requests to help businesses cope with Covid-19?
A: Yes. The ICO has stated that it will not take regulatory action whilst the pandemic continues. The reason for this is that the ICO understands that this is a very difficult time for many businesses and it appreciates that resources may need to be diverted from compliance of information governance work to other areas of the business’ practice which should be prioritised.
If you have any further questions which are not covered by the above, or if you would like an answer tailored to your needs as an employee or your needs as an employer, please get in touch with the Collyer Bristow Employment Team. We would be happy to help and are providing an Coronavirus Employment Advice Helpline service where you can receive up to 30 minutes of free legal advice.
Please note that this is a rapidly changing situation and whilst we have taken every precaution to ensure that the information we are providing you with is up to date this may not always be possible. This page is intended to be informative, not to provide legal advice. If you want to discuss anything the best thing to do is give us a call and we can help you in real time for your specific needs.
27 March 2020
You are contacting
Partner - Head of Employment