Employment Implications of the Coronavirus (COVID-19)

Posted in : 'Any Questions' Webinar Recordings on 6 March 2020
Legal Island
Legal Island

In this month's Employment Law at 11 webinar, Commercial Director at O'Reilly Stewart solicitors, Seamus McGranaghan, joins Rolanda Markey, Learning and Development Services Officer at Legal Island, to answer your questions on the impact of Coronavirus (COVID-19) on employers in Northern Ireland and the potential implications.

Questions discussed:

  • If an employee comes back from an area identified as risky by the WHO, must the employee self-isolate?
  • Can we refuse an employee entry to our premises if they insist on coming to work? Do we have to pay them in these circumstances?
  • Will they receive sick pay, SSP or contractual, if they are self-isolated but not sick? 
  • What if an employee decides to self-isolate but they have not been near someone with COVID-19 or a high-risk region?
  • Can we force employees to work from home, if such a clause does not exist in their contracts?
  • If an employee on annual leave abroad contracts the Coronavirus and is sick – are they entitled to take their annual leave at a different time?
  • What happens if an employee’s children are sent home from school?
  • Do lay-off clauses apply with Covid-19 coronavirus?

Webinar Recording

Transcript

Rolanda 

Good morning everyone. Welcome to the employment Law at 11 webinar with Rolanda Markey from Legal Island and Seamus McGranaghan and from O'Reilly Stewart solicitors. This month's theme is about the coronavirus. It's very hard to kind of go by it really so we have a whole series of questions looking at the employment implications of the coronavirus.

We just want to caveat to what we say today on the basis that the advice that's given is based on the advice and the information that's available today, the sixth March. So, the only thing we can say with the coronavirus is that it's a changing situation every day.

So, any of the information we refer to you may need to go on to the websites to look and see what the most recent and up to date situation is.

Now before we kick off, we have a couple of poll questions we just want to take you through. So the first question is...

Do you have any employees who are required to travel abroad for work?

Travel Abroad for Work

 

Do you have an emergency situation policy?

Emergency Situation Policy

Do you have a policy around home working or a home working policy?

Home Working Policy

 

Do you feel employees who are required to self-isolate should receive payment?

Payment and Self-Isolation

Okay we are going to deal with a series of questions that are looking at first of all issues around self-isolation and payment. We'll then move on to look at issues around homeworking, there's quite a few questions on that.

We'll address the situation with temporary layoff and the coronavirus and whether that applies and then we've got a few questions on issues around holidays, and coronavirus. And whether people should be discouraged from going on holidays and that sort of thing.

Feel free to send them questions there's question box on your screen there. We try to get to them with quite a lot to get through and you know if any questions come up, we try our best to get to them.

Rolanda

Okay, so kick-off Seamus, we're going to look at the whole issue around payment because that's probably had the most coverage from an employment perspective this week. So first of all:

If an employee comes back from an area that's identified as risky by the WHO, must the employee self-isolate?

Seamus 

Well, this is a one of the sort of most relevant questions I think that we have. The World Health Organisation, if you look on their website, they have identified areas and regions around the world that are at risk. So obviously China and northern Italy recently as well. And they've highlighted those as are places where there is a significant or a high risk that if you've travelled that you may have common contact with the coronavirus or COVID-19 as it's also known, but for the purpose of this, I think we're just going to stick to Coronavirus and try to keep it simple. 

So look, the basic guidance that I can find is saying that yes, that is the correct position that where you've been and travelled to a country that is at high risk that there is a period of self-isolation that happens whenever you come back. And it doesn't necessarily mean that you've contracted the virus, it just means that you're at risk because you've been in an area where that has been highly possible, and therefore when you return, you should you should self-isolate.

So, in the main though the legal aspect of that, really for me it's about employers having an awareness of the common law and the statutory duties and to take reasonable care of their employees’ health and safety in their welfare. And that is also providing the specific provision of a safe place of work for your employees. The risk would always be that as someone can return to work, and that might put other employees on edge within your workplace because they would be fearful that if that person has contracted the virus, that there will be a spread of it. And from my understanding, I certainly am not a medical officer in any way, it's caveat but again today the it can take 14 days.

That's why we have a 14 day period, because it could it could remain or it could be in your system for that period of time before you develop the symptoms of it. And I think it's important to identify the various stages of this and the reasons why someone would look to self-isolate.

There certainly is a scaremongering going on if you look at the at the Internet and the stories are on there, and it certainly doesn't, you know, you can't put the TV on or the radio on without here and the word coronavirus and it's highly topical and people are concerned. 

I think that that's genuine, but the current guidance is certainly the travellers from China. Anyone that's travelled from Wuhan to the UK within the last 14 days should self quarantine  even if they don't have the symptoms, so if you're coming back from that, right, you should you should go into a period of self quarantine and I'm advised that has been extended to Iran with special care zones in South Korea, some areas of northern Italy as well. But you can go on to the World Health Organisation check on the UK government websites all about information there.

Rolanda 

So let's say they say no, they want to come to work - can we refuse entry to our premises if they insist in coming to work and if we do, do we have to pay them in those circumstances?

Seamus 

Well again, it comes back to this point that employers have a duty of care under the health and safety legislation to provide that safe working environment. So, if an employee comes back from an affected area, it may be that they'll have to say to the employee, you can't return to work, you're going have to take a period of self-isolation.

I think the bottom line is that if you're returning that should be imposed. And I think that that probably needs to be made clear to any employee. So if you're, if you're aware that you have employees in a high risk area at present, probably with the with the way that the time frame is going, you wouldn't be sending any of your employees to any of those infected areas at the minute anyway.

But if someone had been on holiday or had had, you know, I mean a lot of people during the midterm break were in Tenerife, and lot of people ski in northern Italy, all sorts of places have all returned back.  A lot of people in a lot of offices that I know went to those destinations have returned and are fine and the top of the clocks can be taken down to the 14 days. And but we can see from those news stories that that's where the risk has been, and where those cases have sort of come from.

So my view would be that if the employee is told not to return to the workplace for a period of 14 days, and they insist that they attempt to come into work, that they should be told no that they can't do.

I don't think that there's any need to look at a suspension of the employee or to, you know, formalise it really in that way? I think that simple, simply a matter of following government advice in relation to this. And I want to point out that and I think employers do you need to keep their ear to the ground, you need to keep looking at the public health agency, have great guidance on there for employers and businesses, that for me is probably the main point of contact for looking at addressing immediate situations and work with maybe anybody that has been in contact with someone that has that has contracted the virus or, or that were someone in work takes ill and the fear of that person having the virus, follow the PHA advice is what I can see and look at the other government websites there that are on.

Specifically, on this question. I think if an employer knowingly allows an individual has been advised to self-isolate, to attend their premises, they may be in a breach in respect of all the other employees that are there and you think of some of your other employees, maybe pregnant employees or those with long term health conditions could be at a higher risk also. And so it's not just about protecting one or two employees, it's about your whole workforce and Imagine if the person did come back and you permitted that and the whole workforce took sick and the impact that will have on your business. So, there's plenty of examples of this. If you look at the stories that are online and the impact that can have but I think certainly the employer is within their rights to them.

Rolanda 

Should they be paid, so we’re self-isolating, we’re sitting at home drinking wine, eating crisps, should we get paid statutory sick pay contractual sick pay, normal pay, what is your feelings around this at the minute? There’s been a lot of chat about this, this week. 

Seamus 

I can certainly tell you what, what my thoughts are on it. I think it's a developing situation and if you see there during the week, we've even had a move now where the government has said that statutory sick pay has to be paid from day one, rather than from day four.

It's developing, so and we, again, we need to keep our ear close to the ground. I want to talk around maybe some of the issues that are arise from self-isolation and what the issues may be so if you have an employee that has to self-isolate, and they're not attending work. Standard position, you don't attend work, you don't get paid unless you are sick there is a entitlement either to such respect pay, or that there's a contractual entitlement to further sick pay within the contract of employment.

The risk is and the problem is that you have someone that's self-isolating and then it might not necessarily be sick, it's precautionary in that sense, so there's a lot of commentary in and around whether or not somebody that, you know, is, is self-isolating, if they're sick, then they get sick pay in accordance with their contract of employment, whether that's SSP or whether it's company sick pay, or if they're not sick, they don't have any entitlement whatsoever.

So, I think legally, I would be saying, if you're not sick, there's no entitlement. Now they have to take a step outside of that. And there's an element of employer certainly having to act reasonably. And I know that that is very subjective because if you have 15 employees that self-isolate in the same week, and you know, that's a lot of money to pay out on set pay for, you know, absences and things like that as well.

But the developing aspect of it is that and there have been a number of sort of statements from government, and the health Secretary, Matt Hancock, had said, and he spoke on BBC Radio Four and he said that we've got a statutory sick pay system in this country and self-isolating for medical reasons is your health and that counts towards sick pay.

So he's saying you know if you're self-isolating for medical reasons, I know that that ACAS and I think the Labour Relations Agency, they said that the best practice would be to follow your contractual sick pay whatever that that that is in the contract. And that that would be the best practice during this period of self-isolation. The big fear, of course is you know, if somebody's self-isolating or whether they're genuine I know that there's another question has come in about that. And but you can imagine that that's where the issues will arise for the employer and it's very interesting in that poll that 60% of listeners saying that they should be. I think that the government's guidance and what ACAS seems to be, yes, best practice is to pay it.

Statutory Sick Pay

Rolanda 

Just before we move on from that Seamus, we've had a couple of questions just asking us to clarify because Boris Johnson did say this week, you know that people will get SSP from day one relating to the coronavirus. It's not a generic change to SSP rules even though TUC have said that laws need to change and all of that.

Seamus 

Yes, it's an emergency situation and my understanding, is that what the sort of implications of it were, is that it's only it's only for those that are impacted by coronavirus. And also, once this situation is resolved, it will revert back to the standard four days again. So just to clarify on that point, it is as an emergency application that has been that has been issued by the government. And so far, as I'm aware, there hasn't been any legislative provisions on that yet. It's just a statement that the government have released. 

And now you if I was advising clients, I would be saying take a cautious approach and follow the government guidance in relation to it. We are in a state of heightens and that appears to be an emergency nature at this point. So, and I would say keep yourself right and follow the government guidance, just to mention a few figures about sick pay. And you know, the entitlement works out at £94 25 a week in relation to SSP. Average weekly earnings in the UK per week or £544 a week. So, bit of a disparity there. And, and you can imagine that if you have two parents and a family that are having to self-isolate, that's, you know, whether it's no pay or it's SSP, it's going to have an impact. And I know that it's only for the 14 days, but I am aware that there have been circumstances where there have been multiple periods of self-isolation that have had to happen. And the other thing is in order to qualify SSP you need to be earning at least £118 a week. And my mind then turns to the likes of our zero our workers, our gig economy workers and on our self-employed workers as well where are they left in relation to in relation to getting any payment during that period. And I think that, I think probably from the government's point of view, you know, they're going to say if we're going to try and contain the virus, and we really need to encourage and have people self-isolate we don't want people that are sick or they're going to put others at risk coming into a workplace and exacerbating the circumstances. So, it's sense and sensibility probably.

Rolanda 

Just a question which is interesting that's come in there to say if somebody is on SSP and been paid from day one, then we find out that it's not coronavirus, that they have to pay it back. Before we came on air we were chatting about, you know, an employer drafting some sort of checklist of questions that they would use to help, by way of a risk assessment nearly, to help them identify whether somebody should self-isolate or not.

Seamus 

I think the big problem with this is the verification side of things all around. But specifically for an employer, and, you know, it's verifying and that an employee who has decided to self-isolate is doing so genuinely, and I'm not saying anything bad about any members of a workforce but there's always one, at least. If I was sitting in a in an HR role, I would be thinking, well, look, there's a risk here that you get a lot of people saying I have to self-isolate, and whether that's genuine or not, or whether it's necessary and called for. So, I think that if they took time off and they got SSP from day one, and it turned out that they didn't have coronavirus. There's an argument that you could that you could seek to have the money refunded. And I suppose my mind would turn to return to, if it was a precautionary basis and that that was being investigated, it would be fair enough to pay from day one.

Rolanda 

So if somebody rings up and says I have to self-isolate, I think it's fair enough to ask a series of questions to try and probe further why they fail that they need to self-isolate because if you know from their records that haven't been on your leave, you know how they come into contact with somebody, did their child go to school that was on a ski trip or something coming back. So I think it's fair enough to ask a series of questions to try, from the employers perspective, their duty to reduce the risk.

Seamus 

My view would be that it's very important to have a pro forma list of questions for issues that would arise in and around any of these employees and we talked about that just before, and we both aren't aware of any kind of pro forma that's out there at the minute but I think even from, you know, your risk assessment, looking at the issues in relation to pay, and also your obligations to your other employees and to the wider public in the sense of reporting these matters through to the public health authority if they arise, you know, I know that there's been some queries around people saying, we operate in a public building, or we share a building or an office with other people, you know, what's our liability and where do things start and end? I do think you have to take a cautious approach in relation to it and certainly, from my reading of the PHA guidance, it's certainly not the scaremongering that I that I see online or the way that I've come across on the TV and the radio for that.

Rolanda 

Okay, just one of our great staff members from Legal Island has just put in a message there to say that there's an online NHS 111 website, which has three simple questions that they ask people who ring up to say, "Do I need to self-isolate?". So that might be worth our listeners having a wee look at that. There are loads of questions coming in about the pay we're trying to get through as many as we can. Just touching on the whole issue of statutory sick pay and notification. I think employers need to appreciate it's going to be difficult for people to get sick lines of the absence goes beyond the seven days.

Seamus 

Certainly the guidance seems to be saying that there will be a difficulty in obtaining fit notes from GP surgeries in relation to someone that has to self-isolate or issues in and around that I think there's guidance that people shouldn't attend with their GP, you make a phone call to the GP in the first instance. 

And I know that we were talking about that there's this drive-through testing at Antrim hospital as well. It does sound strange, but I think that there needs to be an acceptance by employers. And it really is difficult right now and I understand that, you know, where you're trying to assess genuineness and whether people do need to self-isolate, the first port of call would always be the medical evidence to look at that.

But the difficulty is that I think that government are being realistic that if there's going to be a surge in this, that the medical practices are not going to be able to provide a sick note for every single employee. I think that we know that it's going to be more difficult to get the sick line and I was looking just at the PHA guidance as well. And one of the points that they highlighted and it was that was that employers didn't necessarily have to have a fit note, that cover certifying options for work and they say, by law medical evidence isn't required for the first seven days.

So, we know that you can self-certify for the first seven days. And after the seven days it's for the employer to determine what evidence they require, if any, from the employee, so there seems to be a scenario where government expect employers to take a sensible view of this, they specifically say this does not need to be a fit note or a sick line issued by a GP or other doctor.

If your employee is advised isolate themselves are not to work in contact with other people, if they are a carrier or have been in contact with an with an infectious or contagious disease, that that should be accepted. And they go on to say that and PHA strongly suggest that employers use their discretion around the need for medical evidence for a period of absence where an employee is advised to self-isolate due to coronavirus and that's in accordance with the Public health advice issued by the government.

So, I thought that that was interesting. And certainly, as an employment lawyer dealing with employers, your medical evidence would always be your verification that you that you would get. There does seem to be a push from government to say you're going to have to use your discretion.

Rolanda 

So, in other words it wouldn't be seen to be necessarily fair to withhold the payment of the SSP or the sick pay if you don't get the sick note after the seven days

Seamus 

And for the next stage of that, if an employee has a complaint about their statutory sick pay, they can lodge that complaint with revenue & customs, and revenue & customs can look at... I've had cases in the past where we've had clients that have refused to pay statutory sick pay because they didn't believe that the illness was genuine. And there is a process where the employee can approach revenue & customs, revenue & customs then in those cases that I had, referred the employee on to occupational health obtained a report and made the decision. I would have thought from my own point of view, if revenue & customs were getting queries from individuals about statutory sick pay, that they will defer to government advice.

Rolanda 

Let's face it all the employees are going to say, but Boris Johnson said on TV... We mentioned this just when we were chatting in there about the SSP and you mentioned that of course that there are a lot of people who don't meet the threshold for SSP and we've just had a question there, and I suppose it's more of an employment relations issue.

 

If they don't meet the threshold for SSP, do you have to pay them? Or should the question be should you pay them?

Seamus 

Everything is at the discretion of the employer. "Discretion" always concerns me slightly. Because what do you do for one you really should be doing for the other because you run the risk of someone saying, "Well, I'm be treated less favourably because..." you know... "I'm male" or "I'm female", those sorts of issues.

You need to be careful and I think it's always best where you can have a clear policy. But it's within your discretion and it may be that employers recognise a very genuine circumstance and decide to make full pay or to give statutory sick pay even to someone that might qualify for it, or even to give them the same as what they would earn if it's less than 118 pounds. So, it is within the gift of the employer to do that. I would always just mention that it's better to have a clear policy and do for them what you would do for the other.

Voluntary Self-Isolation

Rolanda 

Okay. And just before we move on from payment, what if we have a situation Seamus where we have somebody who basically refuses to come to work and says they voluntarily want to self-isolate yet they've not been on holiday, or been in contact with anyone who could have been? So how do we deal with those situations because there will always be the one very fearful person who, you know...

Seamus 

Yes, and you could have someone that maybe is very anxious, or even someone that suffers from an anxiety disorder, and maybe has a medical condition, their mental health and this has led to your scenario where they've said I can't come to work I have to self-isolate or where they're very on high alert of this within the workplace, and that that they say someone came back from Tenerife, and I feel I need to self-isolate.

So, but again, really helpful to look back at that PHA guidance. It certainly, you know, calmed me down and in relation to the various things that I'm reading online. And again, it's back to taking that sensible approach. I think where you would look at and risk assess and maybe look at whether it's through the HMRC website or whether you put your own list of questions together as regards your risk assessment. But I think where you're coming back and saying that there is absolutely no need for the employee to self-isolate here, that you need to sort of write to the employee, record that and tell them what your expectation is that they attend work. And if they don't attend work, it could be an unauthorised absence, and they could be subject to disciplinary proceedings. 

I would be careful just about that in relation to specific employees that have disabilities or pregnant employees, where they may feel at a higher risk, and they may be on higher alert for something. But again, reading through the PHA guidance, it's saying that there isn't a need to self-isolate in the majority of the circumstances it's really only been if you have been in one of the infected areas or if you're suffering from the symptoms, or alternatively, if you've been in very close contact with somebody with somebody else.

And it's interesting the guidance does say that close contact is defined as being within two metres of someone with the virus, and it goes through a whole process that the employer should separate that employee. So if an employee becomes a sick in work and they're displaying symptoms of the virus, you put a two metre separation, ideally you put them in a separate room and you ask them to phone their GP and they contact the GP and the GP will give them advice about what the next steps are. The guidance does say that they should be provided as possible with a separate bathroom facility if they if they need to use the bathroom in this sort of self-containment and my understanding is that after that the public health authority team will be in contact with the workplace in order to assess and get further advice. But it does talk about cleaning desks, and with usual detergents and with soft towels that you can dispose of. All of the sort of precautionary steps I think you will be taking anyway.

Rolanda 

I suppose just before we move off payment, if as a company, we decide to say to somebody, "look, please don't come in we feel you need to self-isolate and that there is a risk to the rest of the workforce and we can provide them with any work today at home"... do we need to pay them because we are asking them to stay at home or does it, because it's still seen as self-isolation, the SSP etc. kick-in?

Seamus 

I think there's the risk that the employer can cross the line that looks almost like a suspension or you're not required to attend work today. I mean, there is obviously like contractual provisions an employer is required if you have a contract for 30 hours a week, the employee is entitled to work those 30 hours and if the employer is taking a step to prevent that from happening, but I think in these circumstances my advice would be know that we're reliant upon the provision that they're required to self-isolate. 

If they're self-isolating, because of the fact that they have and contracted the virus, they are sick, and they'll be entitled to whatever the sick pay provisions are, it more comes down to that  issue about the sort of precautionary self-isolation. I would imagine that if they manage to go to the GP and got a fit note for the for the 14 days that that you would have to pay SSP, otherwise outside of that, my advice would be to follow the best practice guidance of ACAS and Labour Relations Agency.

Rolanda 

Obviously if you do have an emergency situation policy, which a lot of our listeners did, then if it states that if you refrain from coming to work and you'll be paid whatever amount, then you follow whatever your policy is. Obviously big opportunity for employers in getting some work is to allow people to work from home.

Can we force employees to work from home, if there is no such clause in their contracts and bearing in mind there was quite a significant number of listeners did have a homeworking policy. But if they don't have that the right to ask people to work from home because they don't normally do so then what can they do?

Seamus 

You can't force the employee to work from home and if you look at the basics of the contract it will normally specify where the place of work is, but if there's no contractual requirement to work from home you can't force the employee to work from home, but in these circumstances and given that we are dealing with this emergency situation, I think that what you would want to do is consult with your employees and say look where there are risks here and where the workplace is taken precautions and consult with them about working from home and you'd like to think, and I know that this will apply to the majority, but the majority of staff if they're able to work with from home, will facilitate that for the employer.

Again, you might get the odd one that doesn't. But again, if you're backed into that aspect of... because I know that there's a number of workforces here in Northern Ireland, a number of employers that have started to introduce staggered employment, where they say, by way of managing and reducing the risk we're going to have so many people work from home, rather than come into the office. And that's just a way of reducing the number of people in close proximity. I think you would have to get agreement from the employee if it wasn't in their contract of employment. But you would imagine the vast majority of people would be comfortable enough to work from home, it's a benefit to the employee to be able to do so.

Rolanda 

If they say that they don't have a suitable working environment, and maybe they live in shared accommodation, or, you know, they don't have a dedicated workspace. What can an employer do in that situation?

Seamus 

Well, you know, the employer could attempt to, you know, I could imagine such and certainly in and around GDPR and confidentiality, if you're living in shared accommodation, that would raise some flags, I think for some employers, and, you know, the employer can attempt to facilitate and assist the employee, maybe if, you know, one of those aspects of not having a single work environment could be that they don't have a Wi Fi connection or something along those lines.

And so, the employer could take steps in order to attempt to facilitate that. I think the reality for these situations is that where it can be facilitated, ultimately, it will be, and it should be, if the employee ultimately wants to be paid. There has to be flexibility on both sides. But certainly, I could see circumstances where homeworking isn't a possibility at all.

There are some roles that you do need to be in the actual office or alternatively, if you were a carer for example, you can't do that job from home and be self-isolated at the same time, so certainly I think where there just isn't a suitable working environment that has to be accepted. And alternatively, if the employer can take some steps in order to rectify that, again, big part of it for me is, it works both ways. It's an element of the employees helping out in the scenario and certainly the big part of that would be if they want to get paid, they're going to have to be flexible, and also equally it's for the employer to be flexible also. 

Rolanda 

Is it okay that some people are going to be working as normal and other people are going to be doing probably much reduced duties, but nonetheless, they're available if the employer needs them.

Okay, we have quite a lengthy question here, I'll try and summarise as quickly as I can. Your workforce is going to be made up of different people, some people may, you know, have a laptop and a phone and are used to working from home and you may have some people whose work wouldn't involve working on a laptop, and maybe they're just working at home a phone, and as a result, maybe they're more on call as opposed to actually physically doing work. And the question is... (they will all be paid in this this person's question)... is it okay that some people are going to be working as normal and other people are going to be doing probably much reduced duties, but nonetheless, they're available if the employer needs them.

Seamus 

Yeah, I mean, I think that's the way the cookie crumbles unfortunately. I can understand that some people will say, well, look, I have worked my 35/40 hours this week at home, but I know that a colleague that does different duties hasn't and can't do their work from home has also received full pay. And that's not fair... But I think that there are solutions to that, in the sense that you can maybe look at varying duties for other employees, but you need to look at the contract and the right to do that and hopefully, ultimately get an agreement from it from an employee on it. But I think that that's right that there could potentially be scenarios where you have people that are maybe even going beyond what they would normally do in a working day because they're working from home and they don't have their normal facilities about them. And they're having to go a step further in order to complete tasks and others that will get away with lighter duties.

Rolanda 

Obviously, it's okay to communicate with employees when they're working at home?

Seamus 

Yes, I mean, provided that you're communicating with them through the normal working hours and that you're not calling them late at night or anything like that, but communication during the day and their normal working hours is fine. You know, nowadays, we all communicate outside of our normal working hours via email, and there's not necessarily an obligation to respond to emails late at night, and some people do, some people won't. But certainly look where the person is unable to come into work and they are a home the contact will need to be kept and certainly in relation to things like welfare meetings will be important during the period to make sure that the person, if they're off site, that the contact is kept as to how they're feeling, if they are second they've contracted the virus, usual sickness absence policy advised.

Rolanda 

I mean as you say, welfare's important, because if you know an employee maybe doesn't have any family around, maybe they live alone, you want to make sure that they're okay and they've got enough food and that sort of thing.

Seamus 

Absolutely.

Rolanda 

Okay, moving on with couple more areas to cover on we’re slowly running out of time, but very quickly, Seamus, lay-off 

Layoff clause

Obviously, we were chatting earlier, and an employer maybe gets paper from Northern Italy and hasn't got any paper so can you enact a layoff clause as the result of the coronavirus, work being diminished because of that?

Seamus 

It's usually subject to having the right to lay off within the contract. If it's not in the contract, strictly speaking, it's not possible. But where it is in the contract, you obviously have a guaranteed payment that can be made and lay-off work out at £29 a day, for a period of five days in a three month period. So, it's a maximum of £145.

So, you know, substantial saving could be made over those days for the employer, but, the other aspect is that where there are circumstances arising where the business isn't able to function if there's a supply issue, for instance, because they're unable to obtain their product or their requirements from some infected region. You may be looking at alternatives like redundancy, maybe short time working. 

I suppose that for me is really all about consultation presentation with your workforce. The risk is that if this is short lived, and matters resume back to normality again, you don't want to lose your workforce, you don't want to lose the experience and the and also the goodwill is very important as well. I think the benefit is there's lots of information out there, everybody knows the difficulties that could potentially arise here. But yet lay-off I think, you know, ultimately, if it isn't within the contract, it's still a possibility to try and agree it outside of that. 

Rolanda 

As a temporary measure. 

Seamus 

Absolutely.

Rolanda 

If an employee on annual leave abroad contracts the coronavirus and they're sick are they entitled to take their annual leave at a different time?

Seamus 

You can imagine anyone that was on that, you know, any of those sort of cruise ships that have contracted the virus and become sick, you know, we're back down to our good old Pereda case in relation to holidays, so just in like with that case you can affect effectively convert your annual leave to sick leave if you're off and unable to use the annual leave, but it is limited now to the four weeks under the European directive.

Can we insist employees must first notify us if they go to any infected areas or come into contact with someone who has been to an infected area?

Rolanda 

So effectively Can we say to the employ we need to know where you're going, and how long you're going to be there, that kind of thing...

Seamus 

Yeah. My view in relation to that is that the employer is entitled to make reasonable investigations with an employee. We have to balance that off with the right to private life. it may be that someone employees are very wary of giving too much information to employers and things like that, but as I say, we are in exceptional circumstances at the minute. 

Given the risk factor I think that employers are entitled to make reasonable requests. And if the employee refuses that information, I think that I would be following, say if it was an oral conversation, I would be following that through in writing  and setting out the basis as to why the information is required, and why it's necessary to have that information. Because if there is a fear that the employee is going to travel to an infected area, we know that the employee is going to have to self-isolate, the business has to be prepared for those circumstances that arise. So, I think it's fair and reasonable to make those inquiries. 

Rolanda  

Okay.

Can we stop staff going and holding on to those areas?

Seamus 

Well, I think that is difficult. If I was giving advice in relation to that specific scenario, I think that I would be putting my concerns in writing to an employee. If an employee was openly going to travel to an infected area, like you would have some concerns about anybody going to an affected area, but there may be circumstances where an employee has to travel, maybe that's where they're from and they need to return to see he family or some, you know, arrangements in relation to that.

So it may be that, you know that there does need to be to have those discussions and they have to be realistic in the sense that when you return, you're going to have to have a period of self-isolation. This is what the situation is going to be in respect of pay whenever that happens, and just been clear about it. And I think I would record it in writing where you think that an employee has been frivolous in relation to their holiday and where they were, maybe, without concern to others, I think that you would need to record in writing the concerns that you're having. I think that you could make a request that the employee doesn't attend or go to an infected area. But an employer needs to be reasonable about that. I'm not quite sure whether or not if the employee went ahead whether or not you could say that it's a disciplinary matter, I think you'd have to have something within the contract to cover off or not.

Rolanda 

And I suppose the difficulty is people to pay a lot of money to go on holidays and that's their holiday for the year, so you know it's a real tension isn't it.

Seamus 

Taking holidays of lifetimes and things like that.

Rolanda 

Okay, we've got one minute to go and I feel like this is the quickfire round.

Somebody comes into work with the cold. Can we ask them to go home?

Seamus  

No, and no's the answer to that. Common colds and flus are still in existence, the guidance does say that you have to self-isolate if you're displaying symptoms of the virus, but a common cold and flu is not a virus. I think that the employers entitled to make reasonable investigations and inquiries with the employee of their health and how they're feeling. And where that escalates and needs to be taken further, that's fine. But for someone that has just got a regular cold or flu.

Okay, and our last question and I've started so I’ll finish.

An employee’s tested positive, how do we handle those who have worked closely with them on the wider building? Do we have to get the deep cleaners in particularly if it's a public building?

The short answer is to refer to the PHA guidance, they do seem to update the guidance on a daily basis. It's specific guidance, they have about 10 different pieces of guidance that they have, but there's one specifically for employers and businesses. It depends on the circumstances that have been in place, it doesn't seem to me that there needs to be a deep clean, but there's great advice on there about what to do in those circumstances if it's a public building, and they talk about things like if it's a corridor that someone has walked down that has the infection, the likelihood is you're not going to catch anything off that. I was surprised when I read it because it wasn't what I imagined that the guide was going to be given much on TV.

Rolanda 

Okay. Thanks very much for listening to SeamusMcGranaghan from O'Reilly Stewart Solicitors and RolandaMarkey from Legal Island as we discussed some of the implications of the coronavirus for employers. You can listen again it will be up on the website to listen again and the transcript will be up within the next couple of weeks. And just to sort of finish off a couple of administrative issues. As I said before, we have a free e-learning course that's available to all, which just helps raise awareness of the coronavirus and what employees need to do to help employers essentially manage the situation.

Our next webinar is on the 3rd April. And that is in association with Texthelp. And we're going to be looking at what sorts of simple adjustments employers can do to help facilitate the employment of neuro diverse individuals within the workforce.

So, thanks very much for your time, and we'll see you next time. Bye

Training Resources

[Updated] Coronavirus Awareness in the Northern Ireland Workplace (this is a free course)

This course will help raise awareness of the coronavirus and provide information for all employees on how to help prevent the spread of COVID-19. This course will also provide you with guidelines on how to protect yourself and your colleagues in the workplace.

Click here to unlock free access to this course now

 

[New] Protecting Data when Home Working in Northern Ireland (limited time offer available)

Data breaches are often accidental and the result of staff carelessness. The fear and panic surrounding the coronavirus (Covid-19) have produced a perfect ‘high stress’ environment for cyber criminals.

It is vital that all of your employees – from customer service to marketing and sales, many of which will be home working now - know how to protect your organisation’s confidential data from cyber attacks and fully understand their obligation under data protection legislation to protect the data they handle.

Click here to find out more about this course

Click here to get a free demo of this course

More on Coronavirus

Homeworking and the Coronavirus - How Do I Handle It?

School Closures and Learning from Home - Are iPads the Obvious Solution?

 

This article is correct at 06/03/2020
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

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