Understanding employment law and employers' obligations during COVID-19 Employment law and employers' obligations during COVID-19

Helping small businesses stay on the right side of employment law during the coronavirus pandemic

If you run a small business, employment law can be tricky at the best of times. Let alone during a pandemic. How many of us had heard the term 'furlough' before 2020?

The 24/7 legal advice line that is offered with our Legal Essentials service has seen a huge increase in business owners calling for support, reassurance and guidance on employment law relating to the pandemic.

We caught up with employment law guru Hayley Marles to answer some of the common questions on the topic. Hayley is a Senior Associate Employment Solicitor at DAS Law, and specialises in supporting and advising businesses that are dealing with difficult workplace issues.

The answers provided by Hayley are intended to be high level guidance only and specific specialist advice should always be sought in respect of any employment law questions.

This article was written on 4 September 2020 and reflects the Government's policies and guidance at the time, which may have since changed. Please refer to the Government website for the most up-to-date information.

What are an employer's obligations regarding statutory sick pay (SSP) for shielding, self-isolation, and post-holiday quarantine?

Up until August those who were told to shield, but were capable of working, were entitled to SSP if their employer chose not to furlough them and if homeworking wasn't possible. But if they were well and able to work remotely, then they should have been paid as normal and not put on SSP. After 1 August, you can no longer claim SSP for your employees just because they're shielding.

If one of your employees has coronavirus symptoms or lives with somebody that does, and therefore has to self-isolate under the NHS Test and Trace system, you can claim SSP for them.

Also as of the 1 September, workers on low incomes in parts of England where there are high rates of coronavirus will be able to claim up to £182 if they have to self-isolate. To be eligible for this, they must be claiming Universal Credit or Working Tax Credit and not be able to work from home.

Post-holiday quarantine is becoming more common as new countries are added to the list. We'd advise you put a policy in place on this ASAP and make it really clear to your employees that if they are required to quarantine after being abroad, they aren't entitled to SSP. That is unless they experience coronavirus symptoms during quarantine that can be evidenced, in which case you can claim SSP for them. If they are able to work safely from home then great, you can continue to pay them their usual salary.

How do I go about making an employee(s) redundant?

Coronavirus has hugely impacted the UK economy and 'redundancy' is certainly a buzz word right now. No employer wants to make layoffs, but if it's something your business has to consider, you need to ensure you carefully follow a step-by-step process. Not doing so could leave you open to a claim for unfair dismissal.

You should ideally use an experienced HR person or employment law specialist to manage the redundancy process for you. If that's not financially possible, you can find out more about it on the ACAS website.

Understandably, being selected for redundancy isn't nice, so it's important you remain sympathetic throughout. Also be open with your employees – people know the economic situation at the moment – it's a cliché, but honesty is the best policy.

What legal recourse do employers have for employees they want to return to the workplace but who don't feel safe to do so?

Your employees can refuse to come into work if they reasonably believe there is a 'serious and imminent danger'. This wording is important and is taken from the newly implemented Coronavirus Act 2020 and is also used in whistle-blowing legislation.

However, if you've made your workplace COVID-secure by following all the guidelines and an individual still refuses to attend the workplace, this may be considered unreasonable.

In this situation, you have two options. One, which isn't ideal, you go down the disciplinary route. Before doing this, we strongly recommend you seek professional advice and follow the ACAS Code of Practice on disciplinary and grievance procedures, otherwise this can lead to difficulties. Especially if your employee claims there was 'serious and imminent danger', and that they were treated detrimentally for blowing the whistle on this.

The second, more favourable option, is to be as accommodating and supportive of any employees that are reluctant to return to the workplace. A good place to start is by having one-to-one discussions, that's because everyone is different and should be treated individually. For example, somebody might have a medical or mental condition they don't want to mention openly.

To encourage them to return, you can also consider being more flexible with their job role. Could they work from home a couple of days a week? Maybe they could do a job share or swap with another employee to start with? Where possible try to adapt to help those with concerns. But if you do make changes to an employee's terms and conditions, ensure you get their consent as this could lead to a breach of contract claim later.

Can employers insist workers that shielded during lockdown return to the workplace?

From 1 August, those who were shielding during lockdown can go back to the workplace, providing it's COVID-secure. Where possible though, those at higher risk should carry on working from home.

There's been some confusion over this in certain industries, especially with how strong you can be with insisting your employees return to the workplace.

We would advise you to offer support to those employees who were shielding and consider if it's absolutely essential they return to the workplace. If it is, it should be mutually agreed and the workplace made sufficiently safe.

What evidence can an employer ask for regarding coronavirus related absences?

If one of your employees says they have to self-isolate because of coronavirus, you have the right to ask for the NHS Test and Trace documentation that they will have been provided with. You will need this information anyway to claim SSP for them.

For employees that had to shield (before this ended on 1 August), they would have received a letter confirming this and the reason why. You can ask to see this letter and use the information in it to put the right steps in place for helping them to return to the workplace safely.

If an employee still refuses to come back to the workplace, and you have done everything you can to make it safe, you could consider contacting their GP to ask their opinion. Taking advice from a GP is good practice as it can help you better understand the employee's condition and what reasonable adjustments need to be made for them. There is usually a charge for this and you would need your employee's consent to have access to their medical records and to discuss any requirements with their GP.

What action can employees take against their employer if they believe the workplace isn't COVID-secure?

If one of your employees says they feel really unsafe in the workplace, and following that claim they've been treated unfairly, for example missing out on a promotion or being excluded from management meetings, they could pursue a claim in the Employment Tribunal for a detriment as a result of blowing the whistle.

To make such a claim, they'd have to disclose certain information to you. This includes facts as to why they feel in 'serious and imminent danger', and how they've been subjected to a detriment as a result of them reporting their concern. Importantly, they need to be able to show that the detriment was due to them disclosing their concerns.

Another claim your employees could make, which is also linked to whistle-blowing, is called an 'automatic unfair dismissal'. Unlike an 'unfair dismissal' claim, which requires the employee to have at least two consecutive years' employment, no minimum service duration is required. If an employee is dismissed as a result of raising a protected disclosure, they can make a claim against you.

There's also the possibility an employee with a high-risk medical condition or a disability could bring a claim against you under the Equality Act. Such as failing to make the recommended reasonable adjustments to accommodate their condition.

It's not easy to put a figure on the cost to your business if one of these claims is successful. With claims for discrimination and whistleblowing, the Employment Tribunal can compensate an individual at their discretion depending on the severity of the treatment and the impact on the individual, subject to evidence. This could range from an award in the low hundreds to in the most severe cases, in excess of a million pounds. An unfair dismissal claim is based on the employee's losses arising from the loss of the employment contract and is largely valued on the basis of a loss of income.

What should an employer do if a team member starts displaying coronavirus symptoms?

It's good to have a policy in place to tell your employees what to do and how to behave if they think they have coronavirus symptoms.

We'd recommend, setting up a dedicated phoneline employees can call if they start getting symptoms. This prevents them from walking around the workplace in search of a manager or first aider. Ideally first aiders should now be trained to understand how to deal with coronavirus, be aware of the advice to be given to employees and how to report it. Of course, they must also be provided with all the necessary personal protective equipment (PPE).

Those displaying symptoms need to go home immediately, avoid public transport and book themselves in for a test as soon as possible. You then need to follow the NHS Test and Trace Guidance to understand where that employee has been, and whom they might've spoken to or been in close proximity to. This guidance also covers things like what happens if they test positive, self-isolation and SSP.

Following that, consider if you need to shut that particular workspace or close the building entirely.

Ultimately you have a duty of care to all your employees. If one of them has displayed coronavirus symptoms, you should only keep that workspace open if you are confident and comfortable that the rest of your team is safe.

Are there any health and safety requirements for homeworkers?

If you have employees working from home, you should have a health and safety remote-working policy in place, including a document that's been signed by each employee confirming they have all the equipment they need to work safely. Such as the correct lighting and back support if they work at a computer.

The document should also cover other things you'd expect to see in a traditional workplace health and safety policy. For example, obstructions to the environment and trip hazards.

Rest breaks deserve a particular mention as homeworkers tend to do longer hours and take fewer breaks, which can impact their health. Ensure you cover this in your policy and keep reminding your employees about the importance of taking breaks.

You also need to carry out a risk assessment for each homeworker. Understandably sending a member of your HR or IT team around to somebody's home during the pandemic to do this isn't ideal – ironically for safety reasons. Fortunately, risk assessments can be done digitally.

You can find out more on the Health and Safety Executive website. And remember to regularly communicate with your homeworkers with regards to any health and safety concerns they might have.

Can an employer insist workers take a coronavirus test before returning to work?

That's a tricky one and very much industry specific. If your business is in the care home or medical sector for example, where people around you are at a higher risk of catching coronavirus and becoming seriously ill from it, asking your employees to take a test is a reasonable request.

Do employers have to cover the cost of homeworkers' utility bills?

That's not a straightforward yes or no answer. For things like electricity, the employee would have to prove what percentage of their bill is used for work, which isn't easy.

When it comes to the phone bill, the employer should contribute. Not necessarily for the line rental, but certainly for any work-related calls that are itemised on the bill.

Employees can claim tax relief for some of their bills if they 'have to' work from home on a regular basis, but not if they volunteer or agree to do so with their employer. More details can be found on the GOV.UK website.

We're here to support small businesses with their legal concerns during the pandemic – and beyond.

Hayley's final piece of advice for employers at the moment is to be as adaptable and proactive as possible. And to forward plan as best you can – especially for when the furlough scheme ends in October.

Hopefully, this article has answered some of the employment law questions that might be troubling you. For further advice, Direct Line Business customers can call a 24/7 legal advice line and speak to a legal expert. You'll find the number on your policy document.

This is part of our Legal Essentials service, which is included as standard with our Business Insurance. As part of this, you also have access to a legal documents service. You can explore a library of legal templates, which you can download and tailor to your needs.

You can learn more about our Legal Essentials service here.

Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created.

Document services and legal advice helpline are provided by DAS Legal Expenses Insurance Ltd. 24/7 helpline England and Wales only; advice in other jurisdictions is available 9am-5pm Monday-Friday, excluding bank holidays.

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Added: 30 Sep 2020