There appears to be a real possibility of a Covid-19 epidemic in the UK. It is said infection rates could rise to 60 per cent of the population, with around a quarter of those suffering severe symptoms, and perhaps 2 per cent of those who become infected requiring treatment.
If the disease spreads in anything like this way, transport infrastructure may be disrupted, and it is likely more schools will close (several already have). Material dislocation of normal working patterns is therefore a distinct possibility.
It would be unwise to assume these fears are exaggerated merely because other high-profile diseases over the years have not taken hold in the way they might have done. Failure by employers to take sensible and timely precautions to prepare for the worst could expose their organisation to claims and avoidable financial losses.
Employment contracts contain implied obligations to take reasonable care of the health and safety of employees and of trust and confidence. Breaches of these terms could lead to resignations and constructive dismissal claims. Contracts will often also contain express contractual terms requiring staff to ensure their own health and safety and that of colleagues. Employees are required to comply with reasonable management instructions, including those relating to proportionate hygiene measures that the organisation is proposing to introduce.
Employers also owe a common law duty to take reasonable care of the safety of their employees, which includes providing them with a safe place of work. Otherwise, if the loss or damage was reasonably foreseeable, the employee can bring a personal injury claim relying on the employer’s negligence. Similar duties are owed to contractors and others with whom the organisation conducts business.
Finally, businesses are subject to similar statutory obligations under the Health and Safety at Work Act 1974 and associated legislation, breaches of which can lead to criminal prosecution.
There are some practical questions that may arise here. These are:
Can I discipline or dismiss someone who is not ill but is unreasonably refusing to come to work?
Yes, potentially, although whether this is the best approach will depend on the circumstances. You will also need to take into account any condition that might be contributing to increased – or even apparently irrational – anxiety.
Can I stop paying the employee in this situation?
This may well be the better option. Even if the employee has an entitlement to contractual sick pay, this will not apply if the employee is not unwell. However, the position will be more complicated if the person is suffering from anxiety caused by the coronavirus situation and is entitled to contractual sick pay.
What should I do if an employee comes into work after being in contact with an infected person?
Initially, clear instructions should be given to staff members not to do this and to notify management by telephone if they have come into contact with someone who is infected. Anyone who ignores this instruction can be asked to work from home or go home. You may well have to pay the employee in this situation, but this will probably be better than risking infecting other staff.
Can I impose new safety rules on staff and do I need to consult with them about these?
There is arguably a responsibility to impose new safety rules on staff even at this stage. There almost certainly will be a duty to do so if the number of confirmed cases in the UK increases dramatically.
This type of planning is best done in consultation with all managers within the organisation, as each team is likely to work differently and have different needs.
What can I do if an employee ignores those rules?
You may be entitled to take disciplinary action in such a situation. Whether you warn the employee informally first will depend on the circumstances.
Can I change people’s working hours to reduce the number of employees who are at work at the same time?
This may be a sensible precaution to take if it reduces the risk of staff being infected. It would probably need to be done in consultation with staff and by agreement, except to the extent that the changes to proposed working hours were marginal.
If the revenue of the business is affected, can I lay people off until things get better?
This will probably depend on what your contracts say. However, a suitably worded disaster recovery plan can give an employer this right, as it can include provisions about the circumstances in which the organisation proposes to stop paying employees or reduce their salaries in an emergency to avoid having to make redundancies and/or closing down.
Anthony Sakrouge is a partner and head of the employment team at Russell-Cooke