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Q & A: COVID-19 (Coronavirus) and employment law care of Practical law

By 17th March 2020 No Comments
Frequently asked questions about the employment law implications of the 2019 novel coronavirus disease (COVID-19) outbreak. We will keep this resource updated as the outbreak develops. If you have a question relating to the COVID-19 outbreak which is not addressed in this note then please submit a question through Ask.

Government and Acas guidance

The COVID-19 pandemic is continually changing and the government and Acas advice for employers is being updated as the situation develops. Employers should keep track of the guidance for employers from the following sources:
For information on the circumstances in which individuals should self-isolate see the following sources:

Statutory sick pay (SSP) and COVID-19

In what circumstances is SSP payable?

In order to qualify for Statutory sick pay (SSP) an employee must be absent from work due to incapacity (see Practice note, Sick pay: Eligibility). Where an employee has not, at the point they are suspended, either been diagnosed with COVID-19 or exhibited symptoms, then it is unlikely that their absence will meet the definition of day of incapacity in section 151(4), Social Security Contributions and Benefits Act 1992:
“A day on which the employee concerned is, or is deemed in accordance with regulations to be, incapable by reason of some specific disease or bodily or mental disablement of doing work which he can reasonably be expected to do under that contract”.
However, regulation 2, The Statutory Sick Pay (General) Regulations 1982 (SSP Regulations) provides for certain types of absence to be deemed days of incapacity (see Practice note, Sick pay: Deemed incapacity). Regulation 2 was amended by the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 (Coronavirus Amendment Regulations) to introduce a new regulation 2(1)(c), with effect from 13 March 2020. Regulation 2(1)(c) provides that a person is deemed incapable of work where he is:
“isolating himself from other people in such a manner as to prevent infection or contamination with coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland(d) or Public Health Wales(e) and effective on 12th March 2020.”
Regulation 2(1)(c) was introduced to resolve the difficulty in interpreting the rest of regulation 2(1) as including self-isolation following government guidance (see Why did the government introduce new rules on deemed incapacity for SSP purposes?).
For sources of information on the circumstances in which self-isolation is advised see Government and Acas guidance. Employers should regularly check the public health guidance on self-isolation as it has changed as the pandemic has developed, and it directly affects who is entitled to SSP during self-isolation. It is possible that different advice could be given in England, Wales and Scotland. The explanatory notes to the Coronavirus Amendment Regulations provide links to sources of public health information for self-isolation in England, Wales and Scotland, but these links do not currently appear to work.
The government’s position on self-isolation for those returning from high-risk countries appears to have changed, although the available information is contradictory. For more information see Scenario 1: Employer suspends for reason not falling within government self-isolation advice and Where an employee returns from a holiday in a high-risk area, can they be required to stay away from work?.
Regulation 2(1)(b) may still be relevant in the case of mandatory quarantine ordered under the Health Protection (Coronavirus) Regulations 2020 (SI 2020/129) (see Mandatory isolation). Regulation 2(1)(b) provides that a person is deemed incapable of work where they are:
“(i) excluded or abstains from work, or from work of such a kind, pursuant to a request or notice in writing lawfully made under an enactment; or
(ii) otherwise prevented from working pursuant to an enactment,
by reason of it being known or reasonably suspected that he is infected or contaminated by, or has been in contact with a case of, a relevant infection or contamination.”
The introduction of regulation 2(1)(c) means that, in most cases, an employee who is in quarantine or self-isolation will be regarded as being incapable of working for SSP purposes. We discuss the application of this test in various scenarios which may arise in the COVID-19 outbreak in Absence and pay: no symptoms or diagnosis and Mandatory isolation. The government has announced further forthcoming changes to SSP in light of the COVID-19 outbreak which are discussed below.

What changes to the normal rules on SSP and fit notes have been made in light of COVID-19?

Amendments which have taken effect

As we explain in In what circumstances is SSP payable?, following an announcement in the Spring 2020 Budget, the SSP deemed incapacity rules have been extended to cover those who self‑isolate in accordance with government guidelines.
The government indicated an intention to also extend SSP to those caring for those within the same household who were exhibiting symptoms of COVID-19, but this is not explicitly covered in the new regulation 2(1)(c). The carer would only be covered by the new rule on deemed incapacity if the public health guidance also required them to self-isolate.

Forthcoming changes

As a result of the COVID-19 outbreak, the government has announced that it will bring forward emergency legislation temporarily making statutory sick pay payable from the first day of sickness absence (see Legal update, Government announces temporary changes to SSP eligibility as part of coronavirus containment strategy).
The government has also announced that small employers (with fewer than 250 employees) will be reimbursed for any SSP paid to employees in respect of the first 14 days of sickness related to COVID-19.
In the Spring 2020 Budget, the government also announced that a temporary alternative to the fit note will be introduced in the coming weeks which can be used for the duration of the COVID-19 outbreak. This system will enable people who are advised to self-isolate to obtain a notification via NHS 111 which they can use as evidence for absence from work, where necessary. This notification would meet employers’ need for evidence, whilst taking pressure away from General Practices.

Why did the government introduce new rules on deemed incapacity for SSP purposes?

As we explain in In what circumstances is SSP payable?, the deemed incapacity rules in the SSP Regulations were extended to explicitly include employees who are self-isolating following government guidance. This amendment was necessary because the pre-existing deemed incapacity provisions did not clearly cover self-isolation.
It was possible to argue that self-isolation on the basis of a written request from a medical professional to do so fell within regulation 2(1)(b) of the SSP Regulations. However, regulation 2(1)(b) requires that the request to self-isolate is made under an enactment, and it was not clear if the requests being issued by the public health authorities could be said to be made under an enactment.
In addition, those who were self-isolating on the basis of government guidance but without seeking medical advice and obtaining a written request to self-isolate did not meet the definition of deemed incapacity and were not entitled to SSP. The introduction of regulation 2(1)(c) clarifies that anyone who is otherwise eligible for SSP will receive it if they are unable to work because they are following public health guidance to self-isolate.

Absence and pay: no symptoms or diagnosis

Is an employer entitled to send an employee home from work to self-isolate?

If the workplace and the nature of the role allow for remote working then this may provide the employer with an alternative to suspension for the purposes of self-isolation (see Homeworking).
There are a range of reasons that an employer may wish to send an employee home to self-isolate. The employer may be acting out of an abundance of caution (in circumstances where government guidance does not suggest that self-isolation is required), the employee may have had contact with someone who has been infected or travelled to a country with a particularly large outbreak (which may fall within the circumstances in which the government recommends self-isolation), or they may be exhibiting symptoms.
If there is an identified risk that an employee may have been exposed to COVID-19, then it is understandable, in light of an employer’s duty to protect the health and safety of other employees, that the employer would wish to keep that employee away from the workplace until the risk has passed. Ultimately, the employer may regard the risk of allowing the employee to remain at work as outweighing any employment law risk which could exist in suspending them.
From an employment law perspective, the employer should consider whether it has an express right to require the employee to stay at home. If not, the question is then whether there is an express or implied right for the employee to attend work in these circumstances. It would be unusual for the employer to have provided the employee with an express right to attend work regardless of circumstances, and there is no general implied term requiring an employer to provide work provided it continues to pay the employee’s wages (although see Practice note, Implied terms in employment contracts: Duty to provide work for our comment on some exceptions to this general principle). It is therefore unlikely to be a breach of implied duties to require an employee to stay at home in these circumstances, assuming there are reasonable and non-discriminatory grounds for concern, and the matter is dealt with appropriately, proportionately and sensitively. For further information on implied terms see Practice note, Implied terms in employment contracts.
Where the employee falls within the category of individuals who are being advised through public health guidance to self-isolate, or where the employee is exhibiting symptoms, then the employer may be entitled to treat the employee as on sick leave rather than suspension. We discuss this point further below.

Where an employer sends an employee home from work to self-isolate, what pay are they entitled to?

An employee’s right to pay where their employer sends them home from work will depend upon the precise circumstances of that decision. As we explain in Is an employer entitled to send an employee home from work to self-isolate?, there are a number of different reasons that an employer may require an employee from attending the workplace.
Where the employee is able to continue to work from home then, subject to any contractual provision to the contrary, they will continue to be entitled to their normal rate of pay.
If they are not able to do so then consideration would need to be given to the terms of the contract of employment, although most employment contracts will not provide for this type of scenario.

Scenario 1: Employer suspends for reason not falling within government self-isolation advice

Where an employee is suspended by their employer on health and safety grounds, because of a possible risk of infection which does not fall within the government’s self-isolation advice, it is likely that they have the right to continue to receive full pay on the basis of the employer’s implied duty to pay wages. This assumes that there is no express contractual provision to the contrary, and that the employee is contractually entitled to be provided with work. Some casual employees may have no entitlement to be provided with work and therefore have no entitlement to pay if the employer does not provide them with work due to a fear of possible infection.
Where an employee is willing and able to perform work in accordance with the contract, there is an implied term that the employer has an obligation to pay wages, unless there is a contractual right not to do so (see Duty to pay wages). An employer could argue that the employee is not able to work because of the risk that they pose to colleagues. However, this does not, in itself, affect their ability to come into work and perform their duties so it would be risky to withhold pay on this basis. Withholding pay may also discourage employees from identifying a risk that they may have been infected and indirectly lead to an increased risk of infection in the workplace. An employee in these circumstances will not be entitled to SSP because they are not unfit to work and do not fall within the deemed incapacity provisions in regulation 2(1), SSP Regulations (see In what circumstances is SSP payable?).
The public health bodies in England, Wales and Scotland are continually monitoring their advice on self-isolation (see Government and Acas guidance). Because of the link between the public health advice and entitlement to SSP, it is important that employers keep updated on this issue. As matters currently stand, there is a contradiction between the advice on self-isolation in England in Public Health England and BEIS: COVID-19: guidance for employees, employers and businesses and Public Health England: COVID-19: stay at home guidance. The former advises self-isolation for those returning from countries with a high incidence of COVID-19 but links to withdrawn guidance (see section 9 of the guidance for employers). The latter advises self-isolation only if the individual suffers from certain symptoms. Given that the withdrawn guidance referred to in the guidance for employers states that it has been superseded by Public Health England: COVID-19: stay at home guidance, it is likely that the latter reflects the government’s current position on self-isolation in England. If this is correct, it means that, arguably, an employer requiring an employee to self-isolate because they have returned from a high-risk country, will need to pay the employee full pay for the reasons set out above. This does not seem to reflect the government’s intention. However, given the link between public health guidance on self-isolation and SSP, it may well represent the legal position.
Employers should consider the health and safety issues that could arise if it allows employees who have returned from countries with a high incidence of COVID-19 to return to the workplace, irrespective of the government guidance and the SSP position (see What health and safety obligations does an employer have in a pandemic?).

Scenario 2: Employer suspends for reason falling within government self-isolation advice

Where an employer is considering suspension because an employee falls within the circumstances in which public health advice is to self-isolate then the position in terms of pay may be different. In those circumstances, an employer may direct the employee to return home and seek medical advice. If the employee falls within the category of people who have been advised in government guidance to self-isolate then they will fall within the new deemed incapacity rules for SSP discussed further in In what circumstances is SSP payable? and Where an employee self-isolates following either a direction by a medical professional or government guidance, what pay are they entitled to?. In those circumstances it is likely that the employer could treat them as being on sick leave and pay them SSP (subject to any contractual sick pay policy). For sources of information on the circumstances in which self-isolation is recommended see Government and Acas guidance.
There is a specific statutory right to be paid when medically suspended, but it is currently limited to very narrow circumstances which are unlikely to apply in a pandemic (see Practice note, Managing sickness absence: Medical suspension (statutory meaning)). The grounds on which this right applies could be extended by the Secretary of State, but it does not currently cover infection or suspected infection with COVID-19.

Where an employee refuses to attend work due to fears about coronavirus, what action can the employer take and what pay are they entitled to?

If the employee can work from home then this may well resolve the issue. If not, the employer would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of the employee’s refusal.
If there is no discrimination angle, and the public health advice is such that the employee could reasonably be asked to continue to attend work then it is possible that the employee could be investigated for misconduct in terms of their refusal to follow a reasonable management instruction, and their unauthorised absence.
If the absence is unauthorised then the employee would likely not be entitled to pay as they are not willing to attend work.

Where an employee self-isolates following either a direction by a medical professional or government guidance, what pay are they entitled to?

It is assumed for the purposes of this analysis that the employee is not exhibiting symptoms and has not been diagnosed with the disease in question, and that they cannot work from home during their self-isolation.
Where an individual self-isolates in response to either direction by a medical professional or government guidance they will be deemed incapable under the new deemed incapacity rules for SSP (see In what circumstances is SSP payable?). They will therefore be entitled to SSP, or any contractual sick pay which may apply in this scenario.

In what circumstances could holiday be used by workers to cover periods of absence?

The normal rules on taking annual leave under the Working Time Regulations 1998 will continue to apply (see Practice note, Holidays: Taking statutory holiday). Workers may wish to take annual leave as an alternative to scenarios where they would otherwise be on SSP or nil pay. Workers are entitled to take statutory annual leave during sickness absence but may not be compelled by the employer to do so (see Practice note, Statutory holidays and sickness absence: Taking holiday during sick leave).
Workers who are not on sick leave can be instructed to take statutory annual leave by their employer, provided that they are given the required level of notice (see Practice note, Holidays: Notice by employer that leave must be taken).

Absence and pay: symptoms or diagnosis

What pay is an employee entitled to where they have mild respiratory symptoms but no diagnosis of Covid-19?

An employee in these circumstances may be treated as being on sick leave and be paid SSP or contractual sick pay. Although their mild respiratory symptoms may not have ordinarily resulted in them taking sickness absence, the fact that they have symptoms likely brings them within either the normal definition of incapacity, or the deemed incapacity provisions (if they fall within government guidance to self-isolate: see In what circumstances is SSP payable?).

Mandatory isolation

Where an employee is ordered to self-isolate or quarantined under the Health Protection (Coronavirus) Regulations 2020, what pay are they entitled to?

The law on compulsory detention or isolation during a pandemic differs between the constituent parts of the United Kingdom. In relation to the Covid-19 outbreak, the power to compulsorily detain and take other measures in England is contained in the Health Protection (Coronavirus) Regulations 2020 (SI 2020/129) (Coronavirus Regulations).
Where an employee is subject to mandatory quarantine or detention underpinned by a legal obligation to stay away from the workplace then it is likely that they would not be regarded as “able” to work, and so the implied right to wages would not be engaged (see Scenario 1: Employer suspends for reason not falling within government self-isolation advice). This assumes that they were unable to continue working remotely from the quarantine location.
However, it is likely that an employee who is forced to abstain from work because of compulsory detention or other restrictions made under an enactment such as the Coronavirus Regulations would be entitled to SSP under the deemed incapacity provisions in regulation 2(1)(b)(ii) of the SSP Regulations (see In what circumstances is SSP payable?).

Where an employee is ordered to self-isolate or quarantined under the Coronavirus Regulations, can they continue to work from home/the quarantine location?

This would depend upon the terms of the order under the Coronavirus Regulations. If they have the facility to work from the location to which they are quarantined, and they are well enough to do so, then this should be possible provided that the restriction imposed upon them under the Coronavirus Regulations does not explicitly or implicitly prevent them from working.

Employer’s duty of care

What health and safety obligations does an employer have in a pandemic?

Further useful advice is set out in:

What should an employer do where an employee who is at work starts displaying symptoms?

The government guidance from Public Health England and BEIS and the Acas guidance (see Government and Acas guidance), advise that if the employee has not been to one of the high-risk specified areas in the last 14 days, then normal practice should continue. However, if the employee has travelled to one of the affected countries in the last 14 days, they should be removed to an area which is at least two metres away from other people. If possible, this should be a room or area where they can be isolated behind a closed door, such as a staff office. A window should be opened, if possible, for ventilation.
The guidance advises that the affected employee should call NHS 111 from their mobile, or 999 should be called if it is an emergency (if the employee is seriously ill or injured or their life is at risk) and explain which country they have returned from in the last 14 days and outline their current symptoms.
While the employee waits for advice from NHS 111 or an ambulance to arrive, they should remain at least two metres away from other people. They should avoid touching people, surfaces and objects and be advised to cover their mouth and nose with a disposable tissue when they cough or sneeze and put the tissue in a bag or pocket then throw the tissue in the bin. If they do not have any tissues available, they should cough and sneeze into the crook of their elbow.
If the employee needs to go to the bathroom while waiting for medical assistance, they should use a separate bathroom if available.
Both the government guidance and the Acas guidance are updated frequently and employers would be advised to check the online versions for the latest advice. The Welsh Government and Health Protection Scotland have also issued guidance on this issue (see Government and Acas guidance).

At what point should an employer close the workplace?

The Acas guidance advises that if someone with COVID-19 comes into a workplace, the workplace does not necessarily have to close.
In England, the local Public Health England health protection team (HPT) will get in contact with the employer to:
  • Discuss the case.
  • Identify people who have been in contact with the affected person.
  • Carry out a risk assessment.
  • Advise on any actions or precautions to take.
A risk assessment of each setting will be undertaken by the HPT with the lead responsible person. Advice on the management of staff and members of the public will be based on this assessment.
The HPT will also be in contact with the case directly to advise on isolation and identifying other contacts and will be in touch with any contacts of the case to provide them with appropriate advice.
Advice on cleaning of communal areas such as offices or toilets will also be given by the HPT.
The process may be slightly different in Scotland and Wales (see Government and Acas guidance for links to the relevant guidance).

Can employers lawfully conduct temperature checks on employees, workers or visitors?

Consent

An employer cannot require an employee, worker or visitor to their premises to undergo a medical examination without their consent. This would include taking temperatures. To proceed without consent could potentially be a repudiatory breach of contract in respect of employees, entitling them to claim constructive dismissal, and assault in relation to any individual.
However, on a practical level, if the nature of the employer’s business is such that it considers it would need to temporarily close or send employees and workers home during a pandemic unless it undertook such health checks, consent may not be an issue in the majority of cases. On a personal level, employees and workers may be reassured that the employer is taking steps to protect their health in the workplace, as long as testing is carried out on all staff and visitors without exceptions, and appropriate hygiene safeguards are in place.

Data protection

Obtaining health information about an individual is special category personal data (see Practice note, The GDPR and Data Protection Act 2018: employer obligations: Special categories of personal data (previously sensitive personal data)) and an employer (or data controller) can only process such data on certain grounds under the GDPR (see Processing grounds: special category data).
One of the permitted grounds for processing special category data is for health purposes (see Health purposes and Occupational medicine). As it says in these sections, the health exemption enables occupational health professionals to process data relating to health where processing is necessary for the purposes of preventative or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis or management and treatment. This exception will only apply to occupational health professionals who are subject to confidentiality obligations, such as those issued by the General Medical Council regulating the conduct of medical practitioners.
This may mean that provided an employer uses an occupational health professional to conduct the temperature checks and obtains explicit consent (see Explicit consent), it may be possible to conduct these temperature checks lawfully. However, at present we are not aware of any authority on this point. A generic form of consent in employment contracts relating to health checks is unlikely to be sufficient for data protection purposes (see Practice note, GDPR: lawful processing of employee data and the problem with consent: Consent).

Health and safety

An employer has health and safety obligations towards its employees (see What health and safety obligations does an employer have in a pandemic?). It may be arguable that carrying out temperature checks may be part of a series of measures which assists employers to protect the health and safety of their employees in a pandemic. However, in relation to the COVID-19 pandemic, taking temperatures is not a measure currently recommended by the government or the World Health Organisation (see Government and Acas guidance). An employer should first focus on ensuring that the advice recommended by those sources is followed. The guidance is however being continually updated so it is necessary to regularly check for the latest developments.

Potential discrimination issues

If an employer decides to carry out any form of medical testing on employees, workers or visitors during a pandemic, it should ensure that it is applied consistently to all. Only testing certain groups who are perceived to be at a higher risk of having contracted a virus could potentially lead to discrimination claims (see High risk employees and discrimination issues).

Policies and procedures

What adjustments to absence management procedures will be required in light of Covid-19 sickness absence?

Employers should be flexible in the evidence of sickness absence they require from employees or workers. For example, an employee in self-isolation is unlikely to be able to obtain a fit note from their GP. In the Spring 2020 Budget, the government announced that a temporary alternative to the fit note will be introduced in the coming weeks which can be used for the duration of the COVID-19 outbreak. This system will enable people who are advised to self-isolate to obtain a notification via NHS 111, instead of a fit note, which they can use as evidence for absence from work.
A further issue that potentially arises is where an employee’s absence (whether because of sickness or because of isolation) triggers action under their employer’s absence management policy. Employers with such policies should consider informing all employees that a period of absence caused by COVID-19, whether because of infection or due to self-isolation in accordance with government guidance, will be disregarded for the purposes of the absence threshold at which formal action is taken under the policy.
Where an employer does not wish to take this action in respect of all employees, it should bear in mind that employees with some disabilities, such as auto-immune conditions, respiratory conditions or diabetes, are likely to suffer more severe symptoms (and therefore take greater time off work) if they catch the virus, or may be more likely to self-isolate due to the potential risks of catching the virus. To avoid any potential disability discrimination issues arising, employers would be advised to consider disregarding COVID-19 absence for such employees.

Can we change our enhanced sick pay scheme to provide that only SSP is payable in the event of absence due to Covid-19?

In many cases, an employee’s sick pay entitlement will be set out in their contract of employment, although the details of the scheme are often set out in a separate policy. It is common for the contracts of more senior employees to specify that they will be entitled to full pay for a specified period of sickness absence.
The employer should therefore first check whether the relevant employees’ contracts set out a contractual entitlement to sick pay, or whether they refer to a separate sickness absence policy for details.

Amending employees’ contractual sick pay entitlement

Where the relevant employees’ sick pay entitlement is set out in their contracts, to amend this will amount to a variation of contract. For detailed information on this area, see Issues to consider when changing terms of employment and Practice note, Changing terms of employment. In summary, employers can only make such changes with:
  • Consent. Employers could seek the written consent of the relevant employees to the contractual change. While employees are unlikely to agree to a change in terms that is not in their favour, they may be willing to do so where their agreement may help the employer stay in business.
  • Dismissal and re-engagement. Where employees are unwilling to consent to a change in their contractual sick pay entitlement, an employer can consider dismissing them and offering them re-engagement on the revised terms. Even if the affected employees accept the new terms, they will be entitled to claim unfair dismissal in respect of the termination (assuming they have the requisite length of service) and wrongful dismissal, if the employer does not give them the required notice to terminate.
  • Unilaterally imposing the change. Employees may respond to a change that is imposed on them unilaterally in a number of ways. They may “work under protest” and bring claims for breach of contract or unlawful deductions from wages (where they are only paid SSP during a period of absence). Alternatively, they may resign and claim constructive dismissal (see Practice note, Constructive dismissal).
If the employer wishes to vary the contracts of 20 or more employees, and it intends to dismiss employees who do not consent to the change in their terms, for the purposes of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), those employees will be classed as dismissed by reason of redundancy. The employer will therefore have a duty to inform and consult appropriate employee representatives (see Practice note, Redundancy (8): collective consultation: Identifying the appropriate representatives) and notify the Secretary of State using form HR1 (see Practice note, Redundancy (8): collective consultation: Obligation to notify the Secretary of State (HR1)).
Employers should also consider whether:

Amending a non-contractual sickness absence policy

Where the relevant employees’ contracts specify that their sick pay entitlement is set out in the employer’s separate sickness absence policy, which may be amended from time to time, it will be much easier for an employer to make the change. The employer should confirm the change in writing to employees and ideally ask them to provide written acknowledgement that they have received the notification.
The Information and Consultation of Employees Regulations 2004 (SI 2004/3426) do not apply to changes in pay or monetary benefits (see Practice note, Information and consultation agreements).

High risk employees and discrimination issues

Where an employee refuses to attend work because they have a disability which they believe puts them at high risk of serious illness if they catch COVID-19, can an employer dismiss them, or if not, what pay are they entitled to?

People who suffer from certain health conditions are at higher risk of serious illness or death if they contract COVID-19. A requirement imposed by an employer to continue travelling to and attending work, or to not pay or to dismiss them due to their absence in this scenario, could amount to discrimination. In addition, if the reason the employee self-isolates is because of a disability that puts them into a high risk category such as an auto-immune disease or a respiratory condition, disability discrimination issues may arise.
Indirect discrimination. There may be a case that the employer’s provision, criterion or practice (PCP) of requiring all employees to continue to attend work in a pandemic could be indirectly discriminatory against the employee and those who share the employee’s disability. In such a case, the employer should consider whether the PCP can be justified as a proportionate means of achieving a legitimate aim (see Practice note, Disability discrimination: Indirect discrimination).
Discrimination arising from disability. Discrimination arising from disability occurs where both:
  • A treats B unfavourably because of something arising in consequence of B’s disability.
  • A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(Section 15, Equality Act 2020 (EqA 2010.)
Where an employee self-isolates because of their disability and their employer treats them unfavourably because of this by not paying them or dismissing them for unauthorised absence, the employee could have a potential claim under section 15. The employer’s actions would be because of “something arising in consequence” of the employee’s disability (the employee’s decision to self-isolate). As no comparator is required in respect of a section 15 claim, it will not necessarily be a defence for the employer to argue that it would treat all employees who decide to self-isolate without medical instruction in the same way.
The employer may, however, escape liability if it can show that:
  • It did not know, and it was not reasonable for it to know, that the employee was disabled; or
  • Its treatment of the employee was a proportionate means of achieving a legitimate aim of, for example, maintaining staffing levels in its workplace to meet customer demand.
Reasonable adjustments. An employer may be liable for a failure to make reasonable adjustments if it does not facilitate a disabled employee’s request to work from home in a pandemic. However, where the employee’s role is not suitable for remote working, it will not necessarily be a failure to make a reasonable adjustment for the employer to not continue to pay a disabled employee who self-isolates before seeking medical advice. The EAT has held that the purpose of reasonable adjustments is to facilitate a disabled employee to remain in work, or to return to work. The emphasis is therefore on assisting the employee to work, not to not work (see Practice note, Disability discrimination: reasonable adjustments: Aim to help employee remain in or return to work). Where an employer decides not to pay a disabled employee who self-isolates, it could potentially be argued that this is hindering the employee from “remaining in work” as few employees can afford to remain employed without pay for the duration of a pandemic. The EAT has, however, commented that the purpose of the legislation is not to treat disabled persons as objects of charity, and these comments were upheld by the Court of Appeal in O’Hanlon v Commissioners for HM Revenue & Customs [2007] IRLR 404.
Where a disabled employee refuses to attend work because of the perceived increased risk because of their disability, medical advice should be sought as soon as possible, from the employee’s GP or occupational health, to confirm or clarify the potential risks and to see what adjustments, if any, should be made to assist the employee in continuing to work. Where the matter is urgent and there is insufficient time to obtain medical advice, employers may wish to err on the side of caution.
Employers should also take note of the government guidance issued on 16 March 2020, Guidance, COVID-19: guidance on social distancing for everyone in the UK and protecting older people and vulnerable people, which strongly advises that employees with specified underlying health conditions should work from home (see Are there any special categories of employees we should allow to work from home?).

How should an employer deal with an employee who has severe anxiety and is afraid to attend work?

An employer should be sympathetic to any concerns staff may have and try to resolve them to protect the health and safety of the employee. For example, if possible, the employer could offer flexible working, or allow the employee to take holiday or unpaid leave.
An employee with severe anxiety may find their condition is exacerbated by travelling or being in public places due to the increased risk of contracting COVID-19. If their anxiety prevents them from attending work in these circumstances, it is possible that they may be regarded as on sick leave and therefore entitled to SSP or contractual sick pay.
Where an employee suffers from severe anxiety, this could amount to a disability under the EqA 2010. Medical advice should be sought as soon as possible from a specialist treating the employee, or occupational health, to determine whether the employee is disabled (if there is no recent diagnosis) and, if so, to see what adjustments, if any, should be made to assist the employee in continuing to work, such as home working or flexible hours.

What about other high risk employees who choose to self-isolate?

Some employees may fall into a high risk category in relation to COVID-19 but are not disabled. The World Health Organisation (WHO) has identified that those aged over 60, or who suffer from cardiovascular disease, a respiratory condition, diabetes, an auto immune condition or who are pregnant, are at a higher risk of developing more severe symptoms.
Such employees may wish to self-isolate, even before seeking medical advice. The Acas guidance (see Government and Acas guidance) states that an employer should listen to any concerns staff may have and if they are genuine, the employer must try to resolve them to protect the health and safety of their staff. For example, if possible, the employer could offer flexible working, or allow the employee to take holiday or unpaid leave. Employers should consider whether there are any potential indirect age discrimination issues if they require all employees to be in receipt of either a fit note or written request under regulation 2(1)(b)(i) to be eligible for contractual sick pay (see above).
Employers should also take note of the government guidance issued on 16 March 2020, Guidance, COVID-19: guidance on social distancing for everyone in the UK and protecting older people and vulnerable people, which strongly advises that employees who are over 70, pregnant, or with specified underlying health conditions should work from home (see Are there any special categories of employees we should allow to work from home?). The list of specified health conditions is much larger than that issued by WHO and some will not necessarily amount to a disability under the EqA 2010, such as obesity.

Is an employer liable where an employee is harassed by other employees or customers because they are from a country with a high incidence of COVID-19?

There have been reported incidents of racial harassment of Asians in relation to COVID-19. Unfortunately, there is the potential that employees may be harassed by colleagues or customers in the workplace because they are perceived to be at a greater risk of having the virus.
For the purposes of the EqA 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer (section 109(1)). The employer can be liable for harassment in these circumstances, whether or not the harassment is done with the employer’s knowledge or approval (section 109(3)).
There is a defence available to an employer if it can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act or from doing anything of that description (section 109(4)). Employers would be advised to establish a zero-tolerance approach to harassment in the workplace, which is communicated both internally and externally, ensure all workers are aware of their anti-harassment policy and provide training to all staff on how to recognise harassment and what is inappropriate behaviour.
The position is more complicated when an employee is harassed in the workplace by a third party, such as a customer or visitor. The third-party harassment provisions in the EqA 2010 were repealed in 2013 and the scope of the protection offered by the general harassment provisions of the EqA 2010 have been considerably narrowed by case law since then. To establish liability, the employee would need to show that it was their employer who “created” the intimidating, hostile, degrading, humiliating or offensive environment which is likely to be difficult to prove. (See Practice note, Harassment: Harassment by colleagues or third parties.)
For further information on harassment generally, see Practice notes, Harassment and Race discrimination.

Homeworking

Are we entitled to require an employee to work from home?

If there is already an established requirement to work from home where appropriate or where instructed to do so (or in the case of a business continuity issue such as a pandemic), then there is unlikely to be an issue in applying that obligation in an effort to contain the spread of COVID-19.
If not, imposing home working would arguably constitute a variation of the contract requiring employee consent. However, where an employee is faced with either being on SSP or nil pay as an alternative, they may well be willing to consent to working from home as a way of preserving pay. There are alternative methods of changing terms and conditions of employment (see Practice note, Changing terms of employment: Changes not authorised by the contract: the options), but in the circumstances and given the time sensitive nature of the COVID-19 outbreak, employee consent is likely to be the most realistic means of validly imposing a home working requirement where none previously existed.
Where home working is being newly introduced, or expanded, the employer should ensure that the health and safety implications have been considered and that the necessary infrastructure is in place. For more information see Practice note, Homeworking.

Are there any special categories of employees we should allow to work from home?

Yes, on 16 March 2020, the government stated that anyone in the following categories were “strongly advised” to work from home:
  • Individuals aged over 70.
  • Women who are pregnant.
  • Individuals aged under 70 with an underlying health condition (being any adult instructed to get a flu jab each year on medical grounds) would be strongly advised to work from home for the time-being. These are listed as:
    • chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis.
    • chronic heart disease, such as heart failure.
    • chronic kidney disease.
    • chronic liver disease, such as hepatitis.
    • chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), a learning disability or cerebral palsy.
    • diabetes.
    • spleen issues, for example, sickle cell disease or where an individual has had their spleen removed.
    • a weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets or chemotherapy.
    • being seriously overweight (a BMI of 40 or above).
The guidance also states that all other workers are “advised” to work from home, or vary their daily commute and use less public transport, where possible.

Can we refuse to allow an employee to work from home if they will also be looking after children who have been sent home from school or nursery?

In normal circumstances, it would not be appropriate for an employee to work from home while also providing childcare. However, as the COVID-19 outbreak escalates, employers may need to take a pragmatic approach. If all schools and nurseries close, the majority of parents in the workplace will face this issue and putting a blanket ban on working from home while also looking after children may preclude a large proportion of the workforce from performing any duties. In these unprecedented circumstances, employers may be prepared to take a more relaxed and flexible approach to homeworking and allow employees to work around their childcare responsibilities.
Employees with younger children who require constant attention may not be able to work at all while responsible for looking after those children. However, they may be able to split the childcare with the other parent, so that both parents are able to, at least, continue working part-time.
Employees in these circumstances may assert their right to time off to care for a dependant (see Practice note, Time off for dependants). Time off in these circumstances is unpaid, unless there is a contractual right to pay. Given that school closures could last a relatively long time, it is likely that many employees who consider that they can undertake some work while providing childcare would prefer to do so (rather than assert their statutory right to time off) if the employer is willing to allow them to work flexibly.

Are there any home-working health and safety issues we should consider?

Yes. An employer is responsible for an employee’s welfare, health and safety, “so far as is reasonably practicable” (section 2(1), Health and Safety at Work etc Act 1974). Employers must conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees, including homeworkers, to identify hazards and assess the degree of risk (regulation 3, Management of Health and Safety at Work Regulations 1999 (SI 1999/3242)). For more information see Practice note, Homeworking: Health and safety. The government has also “strongly advised” certain vulnerable categories to work from home and avoid travelling on public transport (see Are there any special categories of employees we should allow to work from home?).

Travel

Can an employer require an employee to undertake work-related travel overseas?

This depends upon the nature of the FCO advice on travel to the areas of the country in question. It would not, ordinarily, be appropriate to continue to require work travel to areas which the FCO has advised against travelling to. In most cases it would not be a reasonable request to require travel to such areas, and it may breach the employer’s health and safety obligations, and the obligation of trust and confidence, to impose such a requirement on employees. It could even result in a personal injury claim should the employee contract the illness while undertaking work-related travel in these circumstances.
However, there will be some roles (for example, certain journalists) where the nature of the job is such that the employee can be reasonably expected to travel to areas which are dangerous in some way. In those, relatively unusual, cases where travelling to the area where COVID-19 is particularly prevalent is part of the role, the employer would still need to consider its health and safety obligations and what measures should be put in place to minimise the risk (see Practice note, Business Continuity: pandemics, civil emergencies and civil unrest: Travel to high-risk areas). The employer should also consider whether the employee in question is pregnant, has a pre-existing health condition, is over 70, or has another characteristic, which puts them at higher risk of contracting COVID-19 and developing a serious illness (see High risk employees and discrimination issues and Are there any special categories of employees we should allow to work from home?).

What is the position where an employee is stranded overseas on a work trip?

If an employee is unable to travel home because they have contracted COVID-19 and are either not permitted to travel or too unwell to do so, the employer could treat them as being on sick leave in terms of pay, although most employers would likely continue to pay full pay in these circumstances. The employer would also need to consider the additional expenses incurred by the employee in terms of accommodation and subsistence and ensure that assistance is provided to make arrangements, and that the employee is reimbursed for such expenses. If medical assistance is required, the employer should ensure that the employee is able to access its business travel insurance policy, and that such other assistance as may be appropriate is provided.
If the employee is unable to travel home because they are subject to lockdown or precautionary isolation and unable to access transport home, similar considerations will apply. However, the employee should continue to receive full pay on the basis that they are only in that situation because their employer sent them overseas.
If there is a breakdown in the pre-arranged transport home (for example, due to flight cancellations), the employer should explore other options to repatriate the employee. The employer remains bound by its implied duties towards the employee, and it is likely that its ongoing responsibilities towards the employee would require the employer to make reasonable efforts to find a way for the employee to return home, at the employer’s expense. The contractual position and any policy on overseas travel should also be considered.

What is the position where an employee is stranded overseas following a holiday?

Where the employee is unable to travel home because they have contracted COVID-19 and are either not permitted to travel or too unwell to do so, the employer should treat them as being on sick leave in terms of pay. The employee is entitled to take annual leave if they prefer to do so, but they cannot be compelled to do so (see Practice note, Statutory holidays and sickness absence: Can employers compel workers to take holiday during sick leave?).
Where the employee is unable to travel home because they are subject to lockdown or precautionary isolation and unable to access transport, their entitlement to pay will depend upon the precise circumstances. The rules on SSP as they relate to self-isolation are discussed in Absence and pay: no symptoms or diagnosis.

Can an employee still be required to travel to a work event within the UK?

This will depend upon the current government and public health advice on travelling and attending events within the UK, and the nature of any objections from the particular employee (see Government and Acas guidance). The government has “strongly advised” certain vulnerable categories to work from home and avoid travelling on public transport (see Are there any special categories of employees we should allow to work from home?).
If there is no public health advice against taking this action then, in principle, employers are entitled to continue to impose such a requirement (assuming the employer is otherwise entitled to require the employee to do so).
However, the employer would need to consider whether the employee falls into one of the high-risk categories. If so, the employer should consider whether it would be putting the employee’s health and safety at risk by asking them to travel to and attend the event. It should also consider whether the employee has any rights under the EqA 2010 if the reason that they are at high-risk is linked to a protected characteristic. For example, an employee who suffers from a disability which suppresses their immune system or affects their respiratory system may claim that it is indirect discrimination or discrimination arising from disability to ask them to travel in these circumstances (see High risk employees and discrimination issues for more information).
The employer should consider whether attendance at the event is really necessary, even if the employee does not fall into a high-risk category, given that many employees will have understandable anxiety about long journeys on public transport and attending large events.

Can an employer restrict employees’ travel during non-working time?

Employers could consider instructing employees not to travel to areas where the government advice is to avoid travel in light of the coronavirus outbreak (see GOV.UK: Travel advice: coronavirus (COVID-19). However it is questionable whether this could be regarded as a reasonable management instruction given that it dictates what an employee can do with their leisure time, rather than how to do their job (see Practice note, Implied terms in employment contracts: Duty to obey lawful and reasonable orders).
The employer could also consider advising the workforce that anyone who does travel to such an area will be required to remain at home on their return, and that contractual pay (including contractual sick pay) will not be payable in respect of such self-isolation. The employer would need to consider whether taking that approach amounts to a breach of contract or unilateral change in terms and conditions. For information on entitlement to pay on return from a high risk area see Where an employee returns from a holiday in a high-risk area, can they be required to stay away from work?.
If the employer does issue any directions in terms of non-work-related travel, it should consider whether any requirements or conditions on sick pay are indirectly discriminatory. For example, if the employer attempts to restrict travel to certain countries, employees who are nationals of those countries could, potentially, claim indirect discrimination on the basis that the employer’s new policy disproportionately affects them. It is likely that any such claim would come down to the proportionality of the employer’s response. Also, if the employer attempted to revoke the employee’s annual leave to prevent them from travelling, similar questions would arise. Revoking annual leave may not be a realistic response in any event given the notice requirements in the Working Time Regulations 1998 (SI 1998/1833) (see Practice note, Holidays: Notice by employer that leave must be taken).
Even where the employer attempts to impose a new travel restriction of this sort, it is questionable whether the employee commits a disciplinary offence in contravening it, given that it is unlikely to be regarded as reasonable to restrict employees’ leisure activities.

Where an employee returns from a holiday in a high-risk area, can they be required to stay away from work?

It is likely that an employer could require employees who return from a high-risk area to remain at home (see Is an employer entitled to send an employee home from work to self-isolate?). There could be a strong health and safety argument for taking that approach.
Whether they are entitled to SSP or full pay will depend upon whether they fall within the guidance from the relevant public health authority on self-isolation. SSP is only payable under the deemed incapacity provisions for self-isolation where the employee is following public health advice from Public Health England, NHS National Service Scotland or Public Health Wales (see In what circumstances is SSP payable?).
It is currently unclear whether those returning from high-risk areas are being advised to self-isolate (see Scenario 1: Employer suspends for reason not falling within government self-isolation advice).
If the current advice is to self-isolate upon return from the country in question then the employee could be treated as sick and paid SSP (subject to contractual sick pay). If the current advice on self-isolation does not cover return from the country in question then it is likely that the employer could require the employee to remain at home, but they would remain entitled to full pay (see Scenario 1: Employer suspends for reason not falling within government self-isolation advice).

Dealing with the economic impact: changing terms and lay-off

What action should employers be taking now?

The action an employer should be taking will depend, to some extent, upon the nature of the workplace, the roles carried out and the demographic of the workforce, but some of the issues that employers should consider from an employment law perspective include:
  • The employer’s approach to sick pay in the various scenarios identified in Absence and pay: no symptoms or diagnosis. The employer should consider its contractual sick pay policy, and the practical implications on withholding pay or reducing pay to SSP. The employer will wish to balance the costs of paying full pay where they are not legal obliged to do so with the indirect costs (in terms of spreading the virus and increasing sickness absence) where employees attend work following potential exposure to the virus, or even when exhibiting symptoms of it, in order to continue receiving pay. Some employers are introducing a new right to full pay for a finite period, in circumstances where the employees would otherwise be in receipt of nil pay or SSP.
  • Similarly, consideration should be given to how absence management processes and trigger points may be adjusted to reflect self-isolation and high numbers of diagnosed cases.
  • Whether the infrastructure is in place to allow large numbers of employees to work from home. Is the IT system prepared for a high number of employees to work remotely? Do employees have the hardware necessary to work from home? Will additional guidance need to be issued to reduce demand on the IT systems if many people will be working remotely simultaneously?
  • Compliance with government, PHE and WHO guidance on hygiene in the workplace, and other preventative measures (see Government and Acas guidanceGOV.UK: COVID-19: infection prevention and control and Public Health England: Coronavirus (COVID-19) – what you need to know).
  • Some employers are physically separating the workforce into separate units in an attempt to minimise the risk of COVID-19 spreading throughout the whole workforce.
  • Consider appointing a coronavirus taskforce who are responsible for keeping track of developments, updating internal guidance and communicating with workers. Consider whether a dedicated intranet page is required.
  • Clear communication with workers on the employer’s policy on homeworking, work travel and precautionary isolation. Provide regular updates. Ensure that employees are asked to speak to their manager upon return from any overseas travel prior to attending the workplace, and that they are notified of the government’s position on self-isolation as it develops, as well as the employer’s position if more stringent.
  • Ensure that employees have provided up to date personal details.
  • Plan for mass closures of schools and nurseries. Identify business critical roles and how they can be maintained. Consider what pay employees will receive if they work part-time to fit around childcare, and the benefits of acting flexibly to allow as many employees as possible to continue working. Consider whether the business would be best served by encouraging employees to work flexibly and making that facility available, or by encouraging the use of statutory rights to time off to care for dependants, annual leave or parental leave.
  • Provide clear information to managers on how to deal with an employee who attends work displaying symptoms, or who has potentially been exposed to the virus.
  • Identify any high-risk employees and consider whether there are any potential discrimination implications which mean a more cautious approach is required.
  • Critically consider whether any domestic and international work travel and events are necessary. Consider whether internal meetings can be carried out through virtual meetings.
  • Where travel is necessary to high risk areas, consider what protective measures should be put in place and ensure that protective equipment is sourced and ordered.
  • Identify the minimum safe level of workers required to continue operating, and how that can be maintained in the worst-case scenario. Identify the point at which the business may need to cease operating temporarily and consider the employment law consequences.

If the workplace temporarily closes due to insufficient numbers of employees being able to attend work or the impact of government restrictions, what pay are employees entitled to?

The answer will depend upon a number of factors including the circumstances of the employees’ absence. We have assumed for the purposes of this answer that the employer envisages that the closure will be temporary and that it intends to reopen once sufficient employees are able to attend, and any government restrictions allow it to do so. We have also assumed that alternative to closure (such as finding temporary cover to fill the gaps in the workforce or introducing homeworking) have not prevented the closure.
Those who are already being treated as unable to work due to either self-isolation or diagnosis with COVID-19 will remain on sick leave until they are fit to return to work. At that point, they will be treated the same as the employees who were sent home at the point of closure (discussed below). Appropriate communication should take place to ensure that they are aware of their position, and any transition from sick leave to another form of leave or lay-off.
Any temporary closure of the business will be treated as the employer’s decision and so, in principle, the employees will remain entitled to full pay, unless there is no contractual requirement to offer work (which may be the case for casual employees). This is on the basis that those who are not on sick leave are willing and able to work, and it is their employer’s decision to temporarily close the workplace which is preventing them from performing duties (see Scenario 1: Employer suspends for reason not falling within government self-isolation advice).
For most employers, this will present significant economic hardship: if the business if forced to close and cut off revenue, but also required to continue paying employees then it is easy to see how this could potentially lead to permanent closures, insolvency and redundancies. The government has announced a number of measures to help businesses survive the economic hardship caused by the pandemic (see What help for struggling employers is offered by the government?). However, it is likely that many will need to take action to reduce the payroll on a temporary basis. Some of the options include:
For more information on alternatives to redundancy see Practice note, Alternatives to redundancy.
If the closure leads to insolvency then see Practice note: overview, Overview of the employment aspects of insolvency for an overview of insolvency proceedings and further information from an employment law perspective.

In what circumstances should the employer consider lay-off and short-time working?

Laying off employees means that the employer provides employees with no work (and no pay) for a period while retaining them as employees; short-time working means providing employees with less work (and less pay) for a period while retaining them as employees. These are temporary solution to the problem of no or less work. However, if employees are laid-off or put on short-time working in circumstances where the employer does not have the contractual right to do so then the employer will be in fundamental breach of contract entitling the employee to resign and claim constructive dismissal (see Practice note, Redundancy (6): lay-off and short-time working: Contract does not permit lay-off or short-time working.
Lay-off may need to be considered in the following scenarios:
  • A downturn in work due to the effect of COVID-19 on suppliers and customers means that fewer employees are required on a temporary basis.
  • Temporary closure of the workplace due to insufficient employees being able to work.
Short-time working may need to be considered where there is:
  • A downturn in work due to the effect of COVID-19 on suppliers and customers meaning that the business does not need all employees to work their contracted hours.
Employees who are already unable to work, for example due to sickness or (arguably) medically advised self-isolation, cannot be laid-off (see Practice note, Redundancy (6): lay-off and short-time working: Deciding whether an employee has been laid off).
For more information on lay-off and short-time working see Practice note, Redundancy (6): lay-off and short-time working.

What help for struggling employers is offered by the government?

In the Spring 2020 Budget, the government announced several measures to help employers who are struggling with the economic consequences of COVID-19. These include business rates reliefs, a Coronavirus Business Interruption Loan Scheme, a grant scheme for small businesses, and a dedicated helpline for those who need a deferral period on their tax liabilities. See Legal updates, Spring 2020 Budget: key business tax announcements: Time to pay arrangements for tax liabilities affected by COVID-19 and Spring 2020 Budget: key finance law announcements: Coronavirus Working Capital Loan Scheme.

Data protection issues

Do employees have the right to be notified if colleague/customer develops the virus?

The Data Protection Act 2018 defines information about an employee’s health as a “special category of personal data”. This means that it can only be processed by the employer in defined and restricted circumstances (see Practice note, The GDPR and Data Protection Act 2018: employer obligations).
Employees must be notified of the infection risk as soon as possible. However, the identity of the individual should not be disclosed. An employer should simply advise that an employee who has been in the workplace has been infected and that appropriate precautions should be taken.
The ICO has confirmed that it will take a pragmatic approach to enforcement in light of the pandemic (see ICO Statement: Data protection and coronavirus (12 March 2020)). It has issued ICO: Data protection and coronavirus: what you need to know which confirms that employers can disclose to colleagues that an employee has contracted COVID-19 provided that they do not provide more information than is necessary and, in most cases, it will not be necessary to name the individual.

Rights of other types of workers

Where an employer decides to shut down an office and send all employees home on full pay, are its agency workers entitled to receive equivalent pay?

Where an employer decides to exercise its discretion to pay employees in full, this will not be covered by the statutory guarantee payments regime in connection with lay-off (see Practice note, Redundancy (6): lay-off and short-time working: Employee’s rights in connection with lay-off or short-time working).
Agency workers are entitled to “the same basic working and employment conditions” as employees recruited to do the same job (regulation 5(1), Agency Workers Regulations 2010).
Pay is included as a “relevant terms and condition” and is defined as “any sums payable to a worker of the hirer in connection with the worker’s employment, including any fee, bonus, commission, holiday pay or other emolument referable to the employment, whether payable under contract or otherwise but excluding any payments or rewards [listed in regulation 6(3)].”
The Agency Workers Regulations guidance provides the following non-exhaustive list of pay for these purposes:
  • Basic pay.
  • Overtime pay.
  • Shift or unsocial hours allowance or risk payments
  • Payment for annual leave.
  • Certain bonuses or commission payments.
  • Certain vouchers or stamps with a monetary value.
There are a number of exclusions which are listed in Practice note, The Agency Workers Regulations 2010: Pay. For example, occupational sick pay, benefits in kind and guarantee payments on lay-off are specifically excluded from the definition of “pay”.
It could potentially be argued that discretionary pay in the event of a business closure amounts to “basic pay”. However, this term is clearly meant to apply to the normal situation where an employee is paid in exchange for work done, which is not the situation here. Conversely, discretionary pay does not fit squarely within any of the list of exclusions to “pay” under the AWR either. The payment would not qualify as a guarantee payment because the employees are being in full.
As the legal position is unclear, it may well end up being a practical issue for the employer to consider with the temporary work agency bearing in mind any internal relations issues if the agency workers are treated differently to the permanent staff.
END OF DOCUMENT

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Tim Kelly

Tim Kelly

Tim is a highly qualified Independent Engineer with over 20 years experience as an Engineering Assessor of damaged vehicles.