Issues facing employers and businesses: Coronavirus

With UK concern regarding Coronavirus being heightened further over the weekend, Anthony Best, Managing Partner of Prince Evans Solicitors LLP returns to address some further issues facing employers and businesses in his second of two commentaries

What if an Employee does not follow Coronavirus hygiene rules? 

Employees are obviously required to follow reasonable instructions. An Employer who requires Employees to follow written requirements, such as Public Health England’s guidance related to the washing of hands and coughing into the crook of an arm, will be entitled to take disciplinary action if Employees do not comply

What if an Employer fails to introduce Coronavirus hygiene rules, or allows an Employee to continue to work who should have be self-isolated? 

Employers should introduce new health and safety and wellbeing policies consistent with Public Health England’s guidance to protect Employees against Coronavirus.  After putting an Employer on notice, it is potentially open to an Employee to resign and claim constructive dismissal, if an Employer has failed taken reasonable steps to  ensure their health and safety –  by failing to introduce hygiene standards in the workplace, or by allowing (or worst still, requiring) an Employee to continue to work who should have been self-isolated

Attendance policies

A large number of Employers operate attendance policies and incentives, to reduce Employee absences, such as a review meeting with management if a particular number of days absence is exceeded, or reward vouchers for good attendance.  These schemes will need to be reviewed as in practice, they may discourage Employees who are at risk of developing Coronavirus from doing the right things and self-isolating.  In short, Employers should consider excluding periods of absence caused by Coronavirus, particularly for those over 70 years old, or the disabled

Work-related travel – how is this effected by Coronavirus?

The World Health Organisation recommends that all Employers consider risks relating to work-related travel plans, in the light of the latest information on areas where Coronavirus has spread and is spreading. It advises that:

·         Employers should avoid sending Employees who may be at higher risk of serious illness to areas where the virus is spreading; and

·         all Employees travelling to locations reporting Coronavirus should be briefed by a qualified health professional. 

Beyond this, Employers should consider in the context of their duty to protect the health and safety of their workforce, whether work-related travel is advisable

Can an Employer restrict a staff member’s travel plans?

It is extremely unlikely that a contract of employment will include an express provision to allow this, which would not be enforceable in any event.  This aside and again having regard to the duty to protect the health and safety and wellbeing of Employees, such restrictions are likely to be deemed as reasonable if those travel plans includes countries where there is a high risk of Coronavirus

Care is needed by Employers not to directly discriminate on grounds of race or nationality and that any indirect discrimination on those grounds, caused by staff travel restrictions

The ability to travel abroad has now been largely taken out of the hands of individuals, as Countries close their borders and restrict inward flights

Employees over 70

By reason of the Health Minister’s comments at the weekend that all people over 70 years of age are likely to be asked to self-isolate in the next 2-3 weeks, for potentially a 4 month period of time, people of this age need to be treated as vulnerable, (no matter the individual case) when considering questions, such as pay during self-isolation and adherence to attendance policies

Issues of age discrimination should not arise, if an Employer follows Government guidance

Commercial contract considerations

Businesses need to review their contractual requirements, particularly where they are under an obligation to perform a service, or deliver goods or a project by a fixed date.  In contracts yet to be finalised and signed off, it is likely to be ideal to have included extension of time clauses to take account of Coronavirus

Is Coronavirus a force majeure that can be relied upon to avoid strict performance?  This will depend on the industry concerned but not where competitors are able to continue to operate by say, working from home