The government recommends that employees work at home if at all possible: this is now the first option for all employees where businesses are able to remain partly or fully open.
If because of the nature of your business your employees cannot work from home, and there is work for them to do either in your workplace or elsewhere, you will need to undertake a risk assessment and provide your employees with comprehensive and relevant information on:
(a) the risks to their health and safety identified by the risk assessment, and
(b) the preventative and protective measures
(regulation 10 Management of Health & Safety at Work Regulations 1991)
If your employees are customer facing:
- review your work practices in order to provide a safe system of work for your employees, to protect not only their physical but their mental health
- follow your industry’s recommended safety practices during the pandemic
- provide personal protective equipment if appropriate
Keep an eye on the gov.uk website for updated guidance and ensure you and your employees observe social distancing in accordance with this guidance. Also recommended are regular safety announcements, electronic rather than paper communications, additional handwashing stations, 2 metre floor markings, small teams, regulated entry to premises, plexiglass between workers and customers.
Perform a risk assessment for new/expectant mothers under regulation 16 Management of Health & Safety at Work Regulations 1999 to decide whether or not their working conditions should be altered or if they should be suspended. If your employee is absent from work as a result of her pregnancy in the last six weeks of pregnancy, her maternity leave automatically starts under regulation 6(b) Maternity and Parental Leave Regulations 1999.
What if an employee says they can’t attend the workplace? If they fall within a vulnerable category, for example if they are aged seventy or over, or have an underlying health condition (but have not received, and are not entitled to, an NHS shielding letter) you should look to make reasonable adjustments. Can they work in isolation in the workplace? Is it possible for them to travel to work in isolation? If it’s not appropriate for them to work at home, offer them furlough leave. If they are not coming to work because they are ‘shielded’ or a member of their household is shielded, or they have caring responsibilities arising from coronavirus, and they can’t work at home, offer them furlough leave. As of 16 April, those advised to shield are entitled to SSP.
Can you dismiss an employee in a vulnerable category who doesn’t come to work? s.100 Employment Rights Act 1996 says certain dismissals are automatically unfair, including in circumstances of serious and imminent danger where the employee takes appropriate steps to protect themselves or others.
What if a non-vulnerable employee says they can’t come to work? Is it possible to make reasonable adjustments for them in the workplace? If you formulate a plan to provide them with safety, and they turn it down, and it’s not appropriate for them to work at home, consider offering them furlough leave. Here again, a dismissal might be considered automatically unfair under s.100 Employment Rights Act.
What happens if an employee develops COVID-19/coronavirus? They are entitled to statutory sick pay if they are self-isolating because they, or a member of their household, have coronavirus. They need to produce an isolation note available through 111.nhs.uk. The benefit is payable from the first day, and a maximum of fourteen days are refunded by the government to businesses with fewer than 250 employees. Furlough leave is not designed to cover short term sick leave as it is for a minimum of three weeks.
Unpaid leave. Employees who are suitably skilled or experienced in health or social care are entitled to unpaid emergency volunteering leave, in blocks of two, three or four weeks in any sixteen-week period. They must give at least three working days’ notice and produce a certificate from an appropriate authority.
Here are some examples of steps employers can take to facilitate working at home:
- A laptop for each employee to use - this might be viewed as an investment as some commentators say disruption to our working patterns may continue for many months
- Basic guidance on how to hold or attend Skype or Zoom meetings
- Regular check-ins with you to provide information and answer questions.
For help or guidance on this or other employment law related matter please speak to Emma-Louise Hewitt e.hewitt@sydneymitchell.co.uk or call 0808 166 8860.
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