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Coronavirus, self-isolation and employment law: what are the rights of employees?

Introduction

Media coverage in the United Kingdom (UK) always has a tendency to ferocity; however, as the world is in the grip of a pandemic, as the new Coronavirus disease, official name COVID-19, extends its grip across the globe, this has arguably become even more exaggerated than usual. On 22 March, 2020, it was reported that staff at the national bookshop chain “Waterstones” were claiming that the company was essentially holding them “hostage” by enforcing them to take the time they needed to isolate themselves due to suffering from the illness, and to protect themselves, as their holiday. This is just one example of the difficulties that employees are facing in enforcing their existing rights and in fact in attempting to even discover the existing rights that they do possess in this novel and unusual situation, for which, the evidence appears, current employment legislation is entirely unprepared.

The Coronavirus and Employees

Although the primary aim of citizens of all nations is survival, the discussion of the impact of the disease cannot be avoided, nor its effect on employment and thus on the rights of employees. Indeed, as the number of Coronavirus victims across the United Kingdom (UK) steadily increases, the effect on the workplace is a major concern for employers and the Government alike. These concerns comprise an entire range of issues, from the amount that workers should be paid if they are unable to work due to illness or the requirement to self-isolate for their own safety or to avoid infecting others with the disease, to the right to work at home and child care issues. These concerns are pressing; indeed, the Government has estimated that in the most extreme scenario, the amount of the population which could be absent from work might be as high as one fifth. The Govenrment has advised that where possible, people should work from home; however, this is evidently not always possible.

Furthermore, the concerns regarding employment and the rights of employees are closely linked to the worries that so many people have concerning their survival; they are worried not only about their own health and that of their families, but also about the security of their jobs both in the present and once the virus is under control as well as their present financial situation. It is inevitable that all employees will be affected in some way, and the governments of England and Wales, and the devolved governments of Scotland and Northern Ireland, have now moved to the “delay” stage of their plans to contain the virus. Just as the Government is responsible for ensuring that they act in the best interests of citizens, so employers must be certain to act to ensure that, in so far as possible, employees are protected and that their legal rights are respected. It should be noted, however, that although the information provided is as accurate and current as possible, the situation, and thus the guidance, changes quickly, even on a daily basis.

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COVID-19 extends its grip across the population in a similar manner to influenza, whereby it spreads through direct contact between people, although it is also believed to live on surfaces; people also risk contracting the virus through touching objects or surfaces which have been contaminated. People over the age of forty years old are considered to be more vulnerable to the virus as well as to suffering more intensively, and people who have depleted immune systems, such as those suffering from cancer, diabetes or other medical conditions. As will be explained, this vulnerability is highly relevant to employment issues and self-isolation. COVID-19 incubates slowly, and symptoms may not be evident for up to fourteen days. This means that infectious people may be circulating amongst the population and unknowingly spreading it, including to their colleagues. Therefore, isolation issues are pertinent. Therefore, the rights of employees, new Govenrment enacted legislation and regulations, and the attitude and actions of employers are of the greatest importance, as they affect the health of employees and thus the population at large in relation to the spread of the virus. Furthermore, definitive categorisation by the World Health Organisation of COVID-19 as a pandemic signifies that all citizens must take the risks very seriously indeed.

Employment Rights, Coronavirus and Self-Isolation

It is in the context of concerns regarding infection that people who suspect that they may be infected with Coronavirus are required to stay at home, preferably alone. It is not even possible for potentially infected sufferers of the virus to have definitive knowledge of whether they are infectious, as tests are not even currently available in the UK on a wide scale, and only hospital in-patients are tested. It should be noted that the requirements for self-isolation are in fact extremely vague; for example, a person may be ill and suspect that they have been infected with Coronavirus, whilst they may also consider that they need to take the precaution of self-isolation following contact with a recently infected person, even if that contact has been fleeting. The speed with which the virus is spreading through the population means that it has been estimated that up to one fifth of the working population of the UK could need to self-isolate and thus remove themselves from the workforce at any one time.

However, the problem for workers who need to self-isolate is that the current employment law framework does not contain provisions for this situation, regardless of whether people are self-isolating due to concerns about contaminating others or for their own health. As the trade union Unison has pointed out, no statutory right to pay exists if an individual is not ill but has been advised not to work by a medical expert - or, indeed, by generalised Government guidance. Unison states that it is unlikely that many people would be able to afford to take two unpaid weeks of leave from work. This is in spite of the Government guidance, issued on 16 March 2020 for people suffering symptoms, which requires people to self-isolate at home for a week for a minimum of seven days from the data of the onset of the symptoms. Furthermore, if any person in a household displays the symptoms of the virus, all household members are required to remain at home and not leave the house for a minimum of fourteen days. The most unusual point about this situation, in contrast to the standard requirements for taking sick leave from work, is that sufferers not only do not require a note from a medical professional, but they are also not required to call the National Health Service (NHS) telephone number to report their symptoms. The Government initially provided detailed guidance on self-isolation ; however, this guidance was actually withdrawn on 13 March 2002. Therefore, the information is constantly changing in response to the authorities learning about this new virus. This obviously makes the situation more difficult for both businesses and their employees, as they struggle to keep themselves up-to-date with the situation and new regulations.

One problem is that many employers have attendance management rules in place which are intended to reduce employee absences, and where absences exceed a specific amount, management action will be triggered. Such rules will inevitably act to deter employees who are genuinely at risk of the virus and may be required to self-isolate from doing so, thus spreading the virus further amongst the population. Legal experts have therefore advised that employers should provide a specification that absences due to Coronavirus infection are not subject to management action, in compliance with guidance from Public Health England (PHE).

On 20 March, the Government announced a new service for “online isolation notes”, whereby employees can use the online governmental service to obtain an isolation note where they are unable to work for more than seven days due to issues relating to the Coronavirus. The aim of this was to reduce the pressure on General Practitioners, as well as stopping infectious people from leaving home. However, although one benefit of this new service is that it can be used to generate a note on the behalf of another person, which would be useful in the instance in which someone is being cared for by another person, and is too unwell to apply themselves, after seven days, employers are entitled to request further evidence of reasons for absence. Given what is known about the potential severity of the virus and the large amount of hospitalisations, as well as the overwhelm of hospitals, attention to such bureaucracy may not always be possible for sufferers.

There are also issues pertaining to pay during self-isolation; this is legally complicated. However, some businesses have eased the situation for their workers by announcing that they will willingly pay all staff required to self-isolate. This is evidently in contrast to businesses such as Waterstones, which are requiring workers to take their required self-isolation as holiday, and for which they will therefore not be paid. In general, Statutory Sick Pay (SSP) is under normal circumstances paid by an ill person's employer for up to twenty-four weeks, or by the Govenrment depending on the situation. However, workers on zero-hours contracts are unlikely to be eligible for any pay or holiday at all; indeed, workers on such casual contracts, where they are essentially on-call from employers who request them to work when required, may not in fact be eligible for any payment. It is evident, therefore, that many workers have fallen through the cracks, and will need to approach the Government regarding their potential entitlement to benefits.

Furthermore, a large number of citizens who suffer from various conditions such as heart defects, diabetes, immune system problems or various disabilities, for example, may wish to voluntarily self-isolate. In fact, people suffering from such conditions have been advised to self-isolate by the Govenrment, even if they do not suspect that they have contracted the Coronavirus at all. Previously employment legislation did not provide for such situations; however, the Government have now implemented measures under which people who have been ordered to self-isolate, by the Government or medical professionals on the basis of their vulnerability, will be entitled to SSP from the first day of their absence. The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 make provision for this. The Chartered Institute of Personnel and Development have also advised that employers provide contractual sick pay where an employee has been advised to self-isolate on medical, or indeed now on governmental guidance. However, this is not imperative and there is no way of enforcing this. In acknowledgement of this, therefore, the Government will now pay the wages of employees who would have lost their jobs due to their employers' inability to continue paying their sickness payments. The announcement by the Chancellor on 20 March 2020 that the Government would be introducing a “radical” scheme whereby the state will pay up to eighty per cent of workers' wages is “unprecedented”, and offers huge financial relief for hospitality workers who will suffer loss due to the closure of all the UK's bars, cafés, restaurants, theatres and cinemas, as well as leisure centres, for the foreseeable future.

In addition to payment issues, employers owe a duty of care to their employees, and they are advised to take steps to ensure that people who are a risk from complications should they contract the virus, feel enabled to self-isolate. Legal advice has also indicated that employers should elucidate this in their Sickness Absence Policy. However, there is an issue which is likely to be common, in the context of the fearful climate, and that is people who are not considered especially vulnerable by the Government, who are acting on the basis of NHS records, but who wish to self-isolate to protect themselves. In such cases, legal advice states that employers may consider disciplinary action. However, it must be noted that all situations are different, and a person may, for example, be undergoing a process of the diagnosis of a condition which has not yet been completed, and is actually genuinely vulnerable. In such a situation, a person may be forced to choose between their health and their necessary income. However, PHE notes that employers must listen to the concerns of an employee and consider their needs. Yet in the absence of concrete legislation, such guidance is arguably meaningless.

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Conclusion

The nation is in the grip of a pandemic and the employment legislative changes which are currently being implemented are extraordinary, as the existing law is insufficient to cater for this situation. In summary, therefore, the Government has only very recently enacted legislation and issued specific guidance to employers and employees providing clear guidance on employee rights. Nonetheless, despite the fact that the virus is a serious threat to public health and the acknowledgement that at least a fifth of the workforce is likely to be affected by it, gaps still remain, meaning that some workers lack protection, such as zero hour workers. Furthermore, SSP is very low, and it is for this reason that the Chancellor has announced that the Government will, in an unprecedented move, pay up to eighty per cent of wages. As this has only just been announced, however, it remains uncertain how this will be fully implemented and how employees will benefit.

Bibliography

Statute

The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020

References

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BDBF “Coronavirus and the workplace - twelve key questions” Available at: https://www.bdbf.co.uk/coronavirus-and-the-workplace-twelve-key-questions/ Accessed 20/03/2020

Boycott-Owen, M.; Roberts, L.; Gartner, A. and the Global Health Security Team. "Government outlines isolation plans for vulnerable, as 18-year-old dies from virus” The Telegraph, 23 March 2020. Available at:  https://www.telegraph.co.uk/global-health/science-and-disease/coronavirus-latest-news-italy-uk-nhs-boris-johnson/Accessed 23/03/20202

CIPD “Coronavirus (COVID-19) advice for UK employers” 17 March 2020. Available at: https://www.cipd.co.uk/knowledge/fundamentals/emp-law/health-safety/coronavirus-factsheet Accessed 20/03/2020

Chapman, B. “Coronavirus: What rights do you have if you can't work or self-isolate because of Covid-19?” The Independent 3rd March 2020 Available at: https://www.independent.co.uk/news/business/analysis-and-features/coronavirus-workers-rights-sick-pay-self-isolation-a9373196.html Accessed 20/03/2020

Cookson, C. “How dangerous is the coronavirus and how does it spread?” Financial Times. 18 March 2020. Available at: https://www.ft.com/content/ed3fb63e-41ce-11ea-bdb5-169ba7be433d Available 19/03/2020

Ferguson, D. “Coronavirus: Employment rights and sick pay (update)” UK Government, House of Commons Library. 17 March, 2020. Available at  https://commonslibrary.parliament.uk/social-policy/health/coronavirus-employment-rights-and-sick-pay/ Accessed 20/03/2020

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Parker, G.; Giles, C.; and Payne, S. “Sunak turns on financial firepower to help workers” Financial Times. 20 March 2020. Available at: https://www.ft.com/content/826d465a-6ac3-11ea-a3c9-1fe6fedcca75 Accessed 24/03/20

Sammon, A. and Gilchrist, S. “Coronavirus: advice for UK HR professionals” Pinsent Mansons. Available at: https://www.pinsentmasons.com/out-law/guides/coronavirus-advice-uk-hr Accessed 22/03/20

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