Prime Minister Boris Johnson’s announcement (16 March 2020) of an unprecedented set of peacetime measures to curb the Covid-19 pandemic will have an immediate impact on British public life. New steps include:
- Fourteen days of self-isolation need to be taken by a whole household if anyone displays symptoms of the disease.
- Those who can should work from home; those aged over 70, pregnant women and those with underlying health conditions are considered particularly vulnerable.
- People should stop “non-essential” contact – referred to as social distancing – which includes avoiding bars, restaurants, cinemas etc.
Further announcements from the government are expected on what support will be provided to businesses in sectors most affected by these measures. In the meantime, there are a number of actions that can be taken immediately by all businesses.
1. Keep up to date on the latest government advice
The situation remains fast-moving and all businesses must keep on top of the latest government guidance and any official announcements. The government is now issuing daily broadcasts providing updates on medical advice and government measures to combat the spread of the virus.
2. Providing business continuity while staff self-isolate
The government’s guidelines are now for those who live alone with symptoms of COVID-19, however mild, to stay at home for 7 days. However, for those who live with others, where one member displays symptoms, all household members must stay at home and not leave the house for 14 days, starting from when the first person in the house becomes ill and if another member starts displaying symptoms, they will then need to stay at home for a further 7 days.
The impact on business continuity is obvious, with an increasing number of individuals now needing to self-isolate and on little notice. Employers must:
- Consider how operations will be managed. Will a self-isolating employee with no symptoms work at home on full pay? Can temporary staff be brought in? If so, how will they be managed? Is it appropriate to ask employees to opt out of the statutory maximum working week or agree to changes in working hours/duties? Can annual leave be cancelled? Keep in mind the demands on other employees who may rise to the challenge and work increasing hours, but be placing themselves at risk. The focus will inevitably be on those in high-risk categories or who fall ill with COVID-19; but employers must bear in mind the need to protect the health and safety of all employees.
- Ensure care is taken in how absence is communicated to colleagues. Given the duty to protect the health and safety of employees, where an employee has or it is suspected they may have COVID-19, in most cases it will be appropriate to share some information relating to this with colleagues. However, it will not generally be appropriate to share the same level of detail with all employees. For example, it may be appropriate to share the identity of the individual with those who the individual was or was likely to have had recent contact with, as they are themselves at greater risk of being exposed to the virus as a result. However, it is unlikely to be necessary to share the identity of the individual with the wider organisation. Personal data should be retained for no longer than necessary for the purpose for which it was collected, and that is the case whether that personal data relates to coronavirus or otherwise.
3. Working from home
With the government’s advice to limit travel and for employees to work from home where they are able, employers must now rise to the inevitable challenges that this brings. It is unlikely in the circumstances that an employee will object to home-working, particularly where to do so will continue to secure their pay and at least in the shorter-term business operations. However, employers must also address the practical aspects of home-working:
- Home-working brings health and safety obligations for an employer, including conducting risk assessments. While there are no specific exceptions, with temporary arrangements put in place in the current environment, we would expect there to be a little more latitude from regulators around these obligations, provided that sensible steps are being taken. Employers should check their insurance cover on home-working and the equipment employees are using and any specific actions required in this regard. An important step towards helping to satisfy any obligations will be to have a home-working policy in place that addresses data protection.
- Many businesses are already putting in place system testing to ensure that their systems are sufficiently robust to handle a prolonged period of individual work from home. Systems will need to be able to handle not only day to day work, but also support employees and third parties communicating with each other.
- It will also be important to provide clear guidelines on how employers are expected to communicate between themselves and third parties and that the expectations on an employee are clearly set out, particularly with the potential for school closures and the school Easter holidays fast approaching.
It will be critical for employers to support employees who are unable to work from home, particularly where the nature of the business is such that there is a risk of creating what may seem to be a two-tier workforce. Employers should set out clearly what measures they are taking to support those workers who are continuing to attend the workplace and ensure that there is a clear process for these workers to address any concerns. When an employee states that they do not want to attend work, for example, because they care for a vulnerable or elderly person, their concerns should be listened to sensitively. It may be appropriate to ask them to take unpaid leave or annual leave or, in the event that other duties can be found, to continue their work at home on full pay.
Each request will need to be considered individually, but so far as possible a consistent approach needs to be adopted. However, if an absence is unauthorised and the employee refuses to attend work, an employer could refuse – subject to the usual procedural requirements – to pay an employee. Given the exceptional circumstances we are in, employers should think very carefully before taking any action that results in a loss of pay or any disciplinary measures. Some employers are also physically streaming the workforce into separate units or working weeks in an attempt to minimise the risk the spread of COVID-19.
4. Non-essential contact
While many businesses are already drawing up guidelines on limiting face-to-face contact with third parties, the wider impact of social distancing will be felt at every level. At present, schools remain open, but, with preparations for temporary closure and the Easter holidays only weeks away, childcare will become an issue for many; children’s clubs and activities, on which many working parents rely, are already closing to minimise social interactions. The government is set to announce soon that those aged over 70 – who many parents rely on for childcare – should self-isolate for 12 weeks.
In normal circumstances, it would not be appropriate for an employee to work from home while caring for a child. However, as the COVID-19 outbreak escalates, a pragmantic approach may be needed and flexible working options explored. Employees with younger children, who require constant attention, may not be able to work at all while responsible for looking after their children. They may be able to split the childcare with the other parent enabling both to continue working, albeit perhaps part-time.
Employees in these circumstances may assert their right to time off to care for a dependant to avoid using all of their annual leave entitlement (and which may not in any event be sufficient to cover this period of time). 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 (for example, by working in the evening, once their children are asleep).
Keeping staff working will be critical to many businesses needing to meet ongoing client and customer demands. Immediate steps must be to:
- Put in place clear guidelines on business travel – any “essential” business travel should be approved.
- Remind employees of the importance of hygeine and continue to ensure that high standards are maintained in the workplace.
- Put in place a home-working policy and stress test equiment.
- Put in place guidelines for managers to deal with mass homeworking, but also for those employees who need to carry out their duties at work and who may feel vulnerable.
- Explain the position regarding childcare, dependant leave and annual leave and any temporary changes to the usual policies.
- Remind employees that if they feel ill, including where they suspect they have COVID-19 or are self-isolating, they should inform their line manger or HR immediately.
- Identify the minimum safe level of workers needed to keep operating; what contingency plans are in place.
It will be critical in these uncertain times for employers to support their workforce and plan for longer-term impacts on the business. Managers should role-model expected behaviours and measures to combat the spread of Covid-19 and new work routines will need to be bedded-in to provide for business continuity. Workforces are themselves communities, and employers and employees alike must now consider how to make the best contribution they can to help us all meet the current challenges we are facing.