As workplaces, schools and other establishments increasingly feel the impact, Boris Johnson has announced a ‘battle plan‘ to tackle the virus with a ‘war room’ being convened in the Cabinet Office today (2 March). While we must wait and see what effect this will have on stemming the spread of the virus, employers must have a clear strategy in place for dealing with the impact of the virus over the coming months; ensuring the protection of their business, their customers and suppliers and, of course, their workers and employees.
ACAS publishes guidance for employers
Our previous insight focused on initial concerns for employers, particularly around business travel, as the virus spread across China. Employers must now broaden their focus to managing the impact and consequences of the virus within their UK workplace, particularly given the latest government guidance calling on individuals in certain situations to ‘self-isolate’ for 14 days in an effort to contain the virus. Indeed, last week saw ACAS publish guidance for employers, ranging from practical steps to managing hygiene in the workplace and what to do when an employee is taken ill, through to the more tricky issues around attendance at work, pay, time off work to care for dependants and the potential for remote working.
This weekend the government ramped up its position indicating that locking down cities will not necessarily be off the cards – although it must be stressed that, at this stage, there are no immediate indications that this will happen in the immediate future.
Five key actions for employers
Employers must now have a clear action plan in place:
1. Keep on top of the latest guidance – the situation is fast-evolving
There is a wealth of guidance available from the World Health Organisation, government, NHS and other organisations such as ACAS. The Department of Health and Social Care has indicated that it will now be publishing updated data every day at 2pm until further notice. Employers must ensure that this guidance is reflected in workplace policies and procedures and a communication strategy across the workforce is implemented. Particular care must be taken with any announcements to ensure that an individual’s personal data is respected, particularly health data which constitutes a ‘special category’ of data, to avoid breach of data protection requirements.
2. Introduce clear and transparent policies to ensure consistency in managing certain scenarios; build in sufficient flexibility to reflect the real time circumstances
Employers must have clear and transparent policies on how different scenarios will be managed: what guidelines will be put in place regarding business and personal travel to affected countries? Can self-isolating employees, or employees who may be unable to travel to work if public transport is impacted, be required to work remotely? Where an employee is unable to perform their duties as normal what should they be paid? The Health Minister has indicated that employees who self-isolate and are unable to perform their duties should be paid sick pay; this is reflected in the ACAS guidance. However, consider if an alternative approach, such as a requirement to work flexibly on normal pay or to take annual leave, is more appropriate? How should dependant leave be handled?
Any policies introduced must be applied consistently and fairly. Employers must be particularly alert to the risk of discrimination around any travel bans impacting certain nationalities. Employers will also need to ensure that in each individual situation they are taking account of their obligations under the employment contract, and conducting themselves in a way which does not breach the duty of trust and confidence between employee and employer.
3. Remind staff of the behaviour expected of them; treating employees of certain nationalities differently or making jokes related to coronavirus could expose the company to discrimination claims. Consider if adjustments should be made for any employees with an underlying health condition?
Employers must take steps to ensure that no members of staff or any customers or suppliers are treated differently because of their race or ethnicity. It may be appropriate to remind staff that jokes and banter, even if ostensibly light-hearted, may easily slip over the line to become unlawful harassment, for which an employer may be liable.
Employers should also consider carefully any business requirements placed on an employee who has any underlying health condition in light of their particular vulnerability should they contract the coronavirus.
4. Employers with international operations should ensure the domestic laws of a particular jurisdiction are reflected in their management of the situation. Be alert to any immigration issues arising due to an individual’s movement between countries being restricted.
While the guidance from the World Health Organisation will be particularly helpful for employers managing the virus across jurisdictions, employers must remember that different jurisdictions will be issuing their own government guidance and will have their own local laws which may impact issues such as pay or time off work, amongst other things. Any local differences should be identified and factored into any cross-border strategy accordingly.
Employers should remain alert to the possibility that employees may find themselves essentially marooned in a particular country as a result of measures to contain the virus and this may put them in breach of immigration requirements. Our immigration team will be happy to advise where these issues arise.
5. Prepare for the potential impact of coronavirus on the ability of your staff to meet client demands. What will you do if staff are unwell, unable to work at home? Will coronavirus impact your contracts with suppliers?
We all hope that the virus will be contained and any impact mitigated sooner rather than later. However, employers should consider how they would deal with any longer term impact on their business. Will they need to meet business demands with reduced staff; if so, will individual employment contracts or commercial contracts with clients need to be mutually changed? Will an employer find itself in the unfortunate position where reduced business demands due to, for example, cancellation of client contracts means there will need to be a reduction in the number of employees. Legal advice should be sought where an employer finds itself proposing a temporary closure or short-term working. Any proposals to permanently reduce staff in the wake of the coronavirus will necessitate specific collective consultation rules and individual employment rights being addressed if legal claims and potential employee relations issues are to be averted.
‘This country will get through it – and beat it’
On a more upbeat note, the Prime Minister has asserted that ‘this country will get through it – and beat it‘. We are currently in the containment phase of tackling coronavirus, where isolated cases are transferred to hospital and detailed contact tracing is carried out. However, as the Prime Minister gets set to convene his war room, the next phase could see broader measures introduced to keep the public safe and relieve the pressure on the NHS. Josh Hardie, CBI deputy director-general has acknowledged that it is a ‘fast-evolving situation‘ and employers should continue to follow the regularly updated official government guidance ensuring that ‘the health of employees must be their first consideration, as well as the potential impact on their operations‘. NHS updates are also available.
Please speak to your usual Osborne Clarke employment contact to receive our guide on Managing the risk of Coronavirus at work and to discuss the practical steps your organisation should now be taking to manage the legal risks and practical issues as they evolve for your workplace.