In this special feature, Mini Setty, a partner in employment law at Langleys Solicitors, offers legal guidance following Government advice to work from home.
Millions more Britons are preparing to work from home, as social distancing measures develop. Following the news that universities are to implement online lessons and learning plans, there could be as many as 2.4 million more people working from home.
This coupled with the almost 12 million UK families with dependent children could mean that a considerable proportion of the workforce is forced to stay at home, if schools close in the coming weeks.
Many more UK workers may also have to work flexibly as they care for their family members over the age of 70.
It is already estimated that as many as 20 million UK workers can work from home, according to an IWG Global Workplace survey. All this considered, as many as 30 million Britons are preparing to, or already work from home.
Can your employer refuse to let you work from home?
If an individual needs to self-isolate on the advice of NHS 111 or a doctor, then their employer has an obligation to enable this. Whether it is treated as sick leave or the individual is required to work from home will depend on whether the self-isolation is precautionary or because of symptoms of infection.
If self-isolation is an individual choice rather than a policy mandated by the NHS or the employer, then employer and employee should have a discussion about the best way forward. Organisations are being actively encouraged by government and the CIPD to facilitate flexible working wherever possible, for all their staff. Ultimately, if the refusal is deemed unreasonable then the employer can decide it is unauthorised absence which can dealt with under its disciplinary procedure or as unpaid leave.
Does an employer have to pay the employee their full salary if for example they are a front line worker and cannot fully do the role from home?
This depends on the exact situation but generally an employer is obliged to pay its employees for the work that they do.
Lay-offs (where an employee is asked to stay at home unpaid for a temporary period) and short-time working (where an employee is asked to work less than their regularly contracted hours) may both be used. However, there must be express, correctly-drafted clauses in the original employment contracts for this to happen.
I live with an elderly, vulnerable person and don’t want to risk them catching coronavirus. What are my work from home rights?
If you are able to carry out some or all of your responsibilities working from home, then it is likely to be considered reasonable for your employer to facilitate this in order to protect the person you live with.
If, however, you are unable to work from home, then an agreement for taking time off as holiday or unpaid leave might be considered more reasonable. Regardless, you should begin by having an open discussion with your employer. All organisations are having to respond dynamically to these exceptional circumstances, and are being encouraged by government and industry bodies alike to exercise caution and act morally and ethically.
What health and safety duties do employers have?
Employers have a duty to take reasonable care of its employees’ health and safety in the workplace. This obligation means that employers must ensure that the workplace is safe for employees to work in.
In the current coronavirus pandemic, we recommend employers:
• Send guidance to staff on the best ways to stop the spread of the virus
• Provide tissues and hand sanitisers for staff to use
• Monitor whether work-trips to areas hit by the virus should proceed
• Ensure that anyone who comes back from an infected area does not come in to work if they are symptomatic
• Consider the safety issues of ‘high risk’ individuals such as the older people, those with underlying medical conditions and pregnant women
Self-isolation – is this always necessary?
It is a matter for each employer whether they ask employees to self-isolate or not in this situation. If the employer chooses to ask employees to stay at home for the 14-day incubation period, then the employer will need to consider what pay may be owed during this period. If the employee is able to work from home, then the employer will be able to pay as normal. If working from home is not an option, then, the employer will need to be aware that it could be liable to pay normal salary if the employee is well enough to work but the employer does not wish them to attend work.
Can employers ask their employees to work from home and what if they refuse?
If Government guidance changes and mass movement of people is prohibited/ not recommended then employers can ask employees to work from home. Employers should make clear that it is on a temporary basis and only whilst the employer thinks it is in the best interests of the employees during the coronavirus outbreak. If employees refuse to work from home then an employer should proceed with caution and it is advisable to discuss their concerns, reassure them on the measures being taken but ultimately to remind them that they could face disciplinary action if their continued refusal to work from home is unreasonable.
In an employment contract, there is an implied term that employees should follow lawful and reasonable instructions. An employment contract sets out that an employee will carry out the required tasks and, in return they will receive payment from the employer. However, failing to carry out reasonable instructions, including a request to work from home, could result in disciplinary action.
What happens if employee’s productivity falls below the required standard
Homeworkers will need an element of self-discipline as they get used to their new home working setup, and employers should exercise some flexibility in these exceptional circumstances. However, if an employer feels that their employee’s performance is particularly poor while working from home action can be taken. The employee may be subject to a performance management review and will be asked to provide examples of the expected and completed work.
Poor performance does fall under the ‘fair’ categories for dismissing an employee, however, employers must be able to demonstrate an honest and reasonable belief in an employee’s incapability to do the job to the level required, which can be a long process.
What to do if an employee has coronavirus
If an employee has coronavirus then the business’ usual sickness absence policy will come into effect. All employers should have an effective sickness absence policy, which will help them manage workplace absences consistently and effectively.
Ahead of any further spread of coronavirus, it is recommended that employers should remind their employees of the required standards of attendance and what is expected from them. This is also a good opportunity to remind workers of hygiene standards and other policies of the business.
Businesses should also consider implementing an infectious diseases strategy which details the Company’s response to the spread of infectious diseases. This will safeguard a business from any similar future outbreaks.
How should a business communicate a coronavirus case to its workforce?
If a business does have a confirmed case of coronavirus, it should inform the rest of the workforce, however it must withhold the employees’ identity under UK data protection law.
A worker’s personal health data is ‘special category data’, and therefore must be omitted from any communication with the rest of the workforce. A business is able to let employees know the geographical location of the confirmed coronavirus case, it cannot provide any details that would allow the individual to be identified.
Legal implications of getting it wrong
Where an employer overacts or goes against the current guideline outlined by the PHE, it could face claims of constructive dismissal or even race discrimination (harassment and/or indirect discrimination and/or direct race discrimination).
Coronavirus does not have a cure and there is a lot of fear amongst the population as a whole. Employers should keep a close eye on government guidance and be prepared for staff having to work from home and look after young children, or care for sick loved ones, in addition to themselves.