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Coronavirus: Advice for employers

Daniel Barnett, QC, has produced this summary advice for employers and kindly allowed us to circulate it. We posted a link to the ACAS guidance on the 22 February. How can we reduce the risk to our employees? The risk level is currently identified as moderate. Employers should send round an email/guidance encouraging employees to be extra-vigilant with washing their hands, using and disposing of tissues etc. If you have the capacity to do so, it may be worth designating an ‘isolation room’ where an employee who feels ill can go and sit away from the rest of the company and privately call ‘111’ before taking any further necessary action. If an employee is not sick but is in quarantine or self-isolation, do we have to pay them sick pay? There is no legal right to sick pay in these circumstances, but it would be good practice. Otherwise you run the risk of them coming into work and potentially spreading the virus to the rest of the workforce. There is also a risk of an argument that - by choosing not to pay someone who has self-isolated - you have breached the implied term of trust and confidence and hence constructively dismissed them. But I think such an argument is weak, for all sorts of reasons. What if employees do not want to come to work? Some people may be worried about catching coronavirus and therefore unwilling to come into work. If this is the case you should listen carefully to the concerns of your employees and if possible, offer flexible working arrangements such as homeworking. Employees can also request time off as holiday or unpaid leave but there is no obligation on employers to agree to this. If an employee refuses to attend work, you are entitled to take disciplinary action. However, my view is that dismissal is likely to be outside the range of reasonable responses, at least for now. If someone refuses to come into work and the COVID-19 issues continue into the medium term, my view might change.

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