As the number of coronavirus cases in the UK increases (13 reported cases as of the date of writing) and following the government’s recommendation that people returning from infected areas or showing symptoms of the virus should self-isolate, the impact of the virus on businesses is set to escalate.
It is clear that those employees who are showing signs of the virus or who have been told to self-isolate should not be attending the workplace.
Workers who are ill with the virus will be entitled to statutory and any contractual sick pay. However, a strict interpretation of the law would result in those people who are not sick, but who are self-isolating, not being entitled to statutory or contractual sick pay (depending on the terms of the contract in the latter case).
In order to provide some clarity, Health Secretary, Matt Hancock, has sent guidance to UK employers telling them that staff who have been asked to self-isolate are entitled to take the time as sick leave. Whilst this should assist those employees and employers who provide statutory sick pay, whether such guidance would be binding upon employers who operate a contractual sick pay scheme is unclear.
Acas, the independent arbitration service, has also published advice for staff and employers which can be found here.
The guidance states that the employer might need to make allowances if their workplace sickness policy requires evidence of sickness from the employee. For example, the employee might not be able to get a sick note (‘fit note’) if they have been told to self-isolate for 14 days. It should be remembered that a fit note will only be required, for the purposes of eligibility for statutory sick pay, if the employee has been absent for more than 7 days.
For those people who are self-isolating but who are not actually sick, attempts should be made where possible to allow the employee to work from home, in which case the issue of sick pay would not arise.
In addition to employees having to have time off for themselves, they may also have relatives who are suffering from the illness or who have been advised to self-isolate. Many children that went on school trips over the half term are being advised to self-isolate, even if they have no symptoms. In these circumstances, the law allows the employee reasonable time off to deal with the emergency and to put in place arrangements for on-going care. Again, a strict interpretation of these rules would mean that a parent would be allowed a reasonable (usually short) period to make arrangements for someone to care for the child who is having to self-isolate.
Recent guidance has suggested that employers take a lenient view on such cases, again suggesting that procedures be put in place to allow the employee to work from home or to take the time as holiday.
The Chartered Institute of Personnel and Development believes ‘there is also a strong moral responsibility to ensure that employees feel safe and secure in their employment’, and that firms should make homeworking easier and be flexible with time off.
However, all this is simply advice. Paul Reader, Managing Partner at Berry and Lamberts LLP, points out that “although some contracts may be more generous than others, there is no statutory right to sick pay if you are not sick and just choose to self-isolate."
The Department for Work and Pensions has released a statement saying that people who are prevented from working because of a risk to public health are able to claim universal credit. They may also be entitled to contributory employment and support allowance, which helps with living costs for people who cannot work because of a health condition.
Paul continues, “it would be advisable to contact your employer every day to keep them up to date with your condition; remember that not telling your immediate superior could be in breach of your contract.”
In these unusual circumstances, it is hoped that both employers and employees will take a pragmatic view and look to balance the demands of the employer to have work carried out whilst ensuring the health and well-being of any affected employee.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
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