COVID-19 (Coronavirus) FAQs

Payment where an employer sends employees home

Employers have a duty under the Health and Safety at Work etc Act 1974 (HSWA 1974), and associated legislation, to protect the health, safety and welfare at work of their workforce, as well as others who may be affected by their operations.

Employers also have a common law duty to take reasonable care for the health and safety of their workforce.

If an employee insists on coming in to work and it is reasonably suspected either that they themselves are infected, or that they pose a health risk to other employees in some other way, such as for eg they had recently travelled to an affected area, and their employer asks them to go home and maintain a period of isolation for a specified time, then that employee would be entitled to receive their normal pay, unless there was a clear contractual right to withhold pay in those circumstances.

Similarly, if an employer instructs employees, who would otherwise be capable of work, to stay at home for a specified period as a precautionary measure to prevent the spread of coronavirus, eg after one of their colleagues tested positive for it, the employer would be obliged to keep those employees on full pay as if they had been suspended, or risk claims for breach of contract and constructive unfair dismissal. Obviously where such employees can work from home, they should be requested to do so.

The position would not necessarily be the same for an employee who self-isolates voluntarily, without being required by their employer to do so (see immediately below).

Payment where an employee chooses to self-isolate without being required to do so

Someone who chooses to self-isolate, purely as a precautionary measure without being required to do so in accordance with official guidance would not be entitled to SSP during their period of isolation. In the absence of a contractual right to pay in those circumstances, it would generally be for the employer to agree what payment will be made, or indeed, to decide not to pay the employee at all if they were not ‘available for work’.

In exercising its discretion in this regard, the Acas guidance recommends that an employer should listen to any concerns staff may have. An employer should carefully consider the personal circumstances of the employee in question and take into account their concerns. The guidance also suggests taking a flexible approach if an employee has genuine concerns about coming in to work, such as allowing the employee to work from home, or to take periods of annual or unpaid leave, which might be appropriate in the case of a vulnerable employee who was at risk of developing more severe symptoms from the coronavirus if they were to become infected.

An employer must also take account of its obligation to take reasonable steps to provide a safe working environment, as well as its obligations under the Equality Act 2010 (EqA 2010).

If, for example, the employee had a disability, which caused them to have an underlying health problem that made them particularly susceptible to more severe symptoms from coronavirus, the employer may have a legal duty to make reasonable adjustments to the employee’s working arrangements, such as agreeing to them to working from home on full pay for a time, or accommodating any heightened feelings of stress they may be experiencing by adjusting their workload.

It is also important for an employer to be consistent in the way it treats periods of self-isolation for payment purposes. Any discrepancy in treatment between employees that can be attributed to a protected characteristic that one of them has may well give rise to a claim for unlawful discrimination.

Acas guidance recommends that where there are genuine concerns the employer must try to resolve these to protect the health and safety of their staff, by, for example, offering flexible working.

Protection from detriment in health and safety matters

An employee has the right not to be subjected to a detriment on the ground that they:

1. in circumstances of danger which they reasonably believed to be serious and imminent and which they could not reasonably have been expected to avert, left (or proposed to leave) or (while the danger persisted) refused to return to their place of work or any dangerous part of it;
2. in circumstances of danger which they reasonably believed to be serious and imminent (in relation both to themselves and to others, such as members of the public), took (or proposed to take) appropriate steps to protect themselves or other persons from the danger.

The concept of detriment is broad enough to incorporate most forms of disadvantage suffered by the employee in these circumstances, including any financial or economic disadvantage (such as being paid less, or not at all), or being subjected to disciplinary proceedings.

In order to be protected, the employee's belief must be both genuine and reasonable.

The employee is also protected against dismissal in those circumstances. Dismissal for either of these reasons is automatically unfair.

It is possible that the protection against detriment, and dismissal, in this context may be relevant in cases where:

1. an employee chooses to self-isolate in circumstances where they are not required to do so, and the employer requires them to return to work. Provided that they genuinely and reasonably believed themselves to be in imminent and serious danger which they could not reasonably have been expected to avert (perhaps as a result of the employer’s poor management of an existing infection or contamination, or because colleagues were not following recommended hygiene guidelines and the employee was in a high risk category of contracting the disease), they could potentially be protected against disciplinary action the employer might decide to take against them for being absent from work, including any pay penalty incurred as a result of staying away from work, or
2. a line manager takes steps to prevent the spread of the virus at work by sending home an individual who they reasonably believed posed a risk. Provided that the steps taken were appropriate with reference to all the circumstances including, in particular, the line manager’s knowledge and the facilities and advice available to them at the time, they would likewise potentially be protected against potential disciplinary, or other disadvantageous, action in the event of a dispute relating to the steps they took.

Time off to look after a dependant

An employee may be entitled to time off work if they:

1. have a child they need to look after, or arrange childcare for, because their school has closed due to coronavirus or
2. need to help their child or another dependant if they are sick or need to go into isolation or hospital.

In the context of coronavirus, the statutory right to time off work may be relevant for the purposes of:

1. providing assistance on an occasion when a dependant falls ill
2. to make arrangements for the provision of care for a dependant who is ill
3. in consequence of the death of a dependant
4. because of the unexpected disruption or termination of arrangements for the care of a dependant
5. to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for them.

The right only covers time off which is taken in order to take action which is necessary to deal with one of these listed emergencies, and is only available for a ‘reasonable’ amount of time off during working hours, such as a day or two. Thereafter, it may be necessary for the employee to take annual leave or unpaid leave if the situation has not been resolved.

There is no statutory right to pay for this time off, but some employers might offer pay depending on contractual provisions or workplace policy.

Lay off or short-time working

Where an employer’s business is adversely affected by coronavirus, it may wish to consider laying-off employees or putting them on short-time working, where it has the contractual right to do so.

Qualifying employees will be entitled to claim a statutory redundancy payment or a statutory guarantee payment from their employer.

Data protection considerations

Information regarding an employee’s health, such as whether the employee is suffering symptoms of coronavirus, or has been diagnosed as having the virus, is deemed to be special category data and accordingly additional requirements and obligations apply to the processing of such data.

The collection and processing of this data is likely to be necessary to protect the health, safety and welfare of the individual and other employees, in accordance with the employer’s obligations to provide a safe working environment under HSWA 1974.

Employees are under a general obligation to comply with reasonable instructions or requests from their employer, and so it would typically be reasonable for an employer to take disciplinary action against an employee who failed to comply with such a request.

In contrast, requiring an employee to confirm that they are not infected, or requiring them to obtain a medical certificate to confirm their fitness is unlikely to be reasonable, not least because it conflicts with government guidance requirements in relation to controlling the spread of coronavirus.

Processing of health information for these purposes will in all likelihood be lawful under the specific processing condition ‘obligations and rights under employment law’.

However, employers should ensure that they only process information to the extent that it is ‘necessary’, eg limited to the context of health and safety. A data protection impact assessment and/or risk assessment should be undertaken, in order to document the employer’s decision process and any alternatives considered.