Hayley Trovato, Senior Associate in our Employment team, has answered a number of questions employers may have around coronavirus (COVID-19):
Can an employer refuse to allow an employee to work from home if they will also looking after children whose schools/nursery have closed?
Normal circumstances would dictate that it is not appropriate for an employee to work from home while they are providing childcare. However, with the escalation of the COVID-19 virus, a more pragmatic approach should be adopted by employers. It seems likely that in the next few weeks this is likely to become a reality. In these circumstances imposing a ban on employees working from home while looking after their children is likely to exclude a large proportion of the workforce from carrying out their job. In these unprecedented times, a more relaxed and flexible approach needs to be adopted.
Do employees have the right to be told if a colleague develops the virus?
Information about an employee’s health is defined as a ‘special category of personal data’ by the Data Protection Act 2018. This means it can only be processed by an employer in restricted circumstances. You must notify your employees of the risk of infection as soon as possible however it is important to ensure that the identity of the individual is not disclosed. Best practice is to say an employee who has been in the workplace has been infected and so all of the usual precautionary measures should be taken. On 12 March 2020, the Information Commissioners Office (ICO ) confirmed it would take a pragmatic approach to enforcement in the light of the pandemic. It has issued ICO: Data Protection and Coronavirus: what you need to know, where it confirms that you can disclose to colleagues if an employee has contracted COVD-19, on the basis that they do not provide more information than is necessary.
In an effort to keep their businesses afloat can employers reduce their employees hours of work?
We are entering a period of economic uncertainty and most businesses regardless of their size will suffer. Immediate consideration will be given to where costs can be cut and businesses might have to consider laying off staff as it comes down to a question of survival and being to stay afloat.
Laying off employees means that the employer provides the employees with no work ( and no pay) for a period while keeping them as employees. Short time working means giving your employees less work and so less pay for a period while keeping them as employees. These are temporary solutions to the problem where there is no or less work. However, if there is no contractual right and employers are laid off or put on short-time working then the this may entitle the employee to resign and claim constructive dismissal.
However, in the current climate, the above options are likely to be a more attractive alternative to employees than redundancy meaning it is likely employees will consent to a period of unpaid leave, particularly if this option is presented as an alternative to the risk of redundancy.
At the time of writing, we are awaiting news of what financial assistance the government is going to be offering UK businesses in addition to those measures announced by the Chancellor in the recent Spring 2020 budget.
For further information, please contact us and/or refer to the following sources of advice:
- Acas: Guidance for employers and employees from Acas, the Advisory, Conciliation and Arbitration Service, an independent body funded by the Government, is available here: https://www.acas.org.uk/coronavirus
- NHS: Health-related guidance from the National Health Service is available here: https://www.nhs.uk/conditions/coronavirus-covid-19/
- Public Health England: including, eg, specific guidance for employers, educational and health-related organisations, and an option to receive updates directly is available here: https://www.gov.uk/government/organisations/public-health-england
- HMCTS: Information for users of Courts and Tribunals is available here: https://www.gov.uk/guidance/coronavirus-covid-19-courts-and-tribunals-planning-and-preparation