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With a return to work at the office now on the horizon, businesses and employers are looking at the areas that require consideration for the 'new normal'. 

We have collated responses to quesions about holidays, sickness absence and pay, business travel overseas, health & safety in non-essential offices and whistleblowing.  

If you have further queries about any of the topics covered in our Return to the Office bulletins, please do not hesitate to contact a member of the Employment Team.

Law as at 21 August 2020.

Holidays 

  • A lot of employees still have a lot of annual leave to use this year – can I direct when employees take leave?

 In addition to specifying days when the workplace is closed such as during the festive season, local or bank holidays, employers can designate specific days as annual leave by giving at least double the amount of notice to the employees as the length of annual leave they want the employee to take; e.g. if employers want employees to take a specific week off, they need to give them at least two weeks’ notice. However, this will need to be done consistently and fairly. Employers may in the first instance want to encourage and give employees the opportunity to schedule their own leave where possible before designating periods of leave.

  • What happens if employees cannot take all their leave this year?

The government has passed legislation that means that where it is not “reasonably practicable” to take annual leave in the current leave year “as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society)” then a period of untaken leave of up to 4 weeks can be carried over into the next two holiday years. Government guidance on what should be taken into account when considering whether it is reasonably practicable or not includes the length of time left in the holiday year, the health of the employee, and any increase in demand faced by the business.

  • What if an employee wants to go overseas on holiday this year?

Employers cannot dictate what employees can or cannot do during their annual leave. However, it is clear that travel advice and restrictions are changing regularly and with short notice. It is therefore worth making clear to employees what the position would be if they were unable to return to work due to travel restrictions in their holiday location or due to quarantine restrictions. For example, they may require to take further holidays or unpaid leave to cover time they are not available for work.

  • What do I have to pay employees who are quarantining?

If the individual is able to work from home, they should receive normal pay. If they are not able to work from home, the position in relation to statutory sick pay is presently not clear cut. Although this is unlikely, company sick pay might apply depending on what the contractual or scheme rules say. Again, employers may want to make clear in advance the potential consequences to employees who intend to travel on holiday to countries where quarantining on their return to the UK is still a requirement e.g. further holidays or unpaid leave. Current government guidance refers to dismissal being treated as a last resort. The ongoing difficult here is the constantly changing list of countries subject to quarantine.

Sickness absence and pay

  • What pay are your employees entitled to if they are absent from work with coronavirus symptoms or are self-isolating?

If they meet the other statutory criteria, where someone is absent from work because they have coronavirus symptoms or they are self-isolating, they are entitled to statutory sick pay (SSP). This includes those who have been instructed to self-isolate by the track and trace system (Test and Protect in Scotland) because they have come into contact with someone infected. If an employee lives with someone who is self-isolating due to having symptoms of coronavirus, they will also qualify for SSP.

  • What is the relationship between statutory sick pay and company sick pay?

SSP is a statutory entitlement regulated by legislation. Company sick pay is a contractual entitlement and whether employees will qualify or not will depend on the wording of the relevant contract or scheme. If definition of incapacity for the purposes of company sick pay is the same or similar to the statutory definition, there may be an argument that the employees is entitled to company sick pay during periods of self-isolation. However, this needs to be reviewed on a case by case basis. Employers will need to address such claims carefully and consistently.

  • How will you address the risk of employees coming into the workplace with coronavirus symptoms?

Generally speaking, in pre Covid -19 times, employees with mild or moderate colds would often come into the workplace as they feel able to work and very few colleagues would object. However, given that coronavirus and colds and flus share many symptoms, it is important that those with symptoms, follow public health advice. There are business risks for employers if employees cross infect at the workplace. This will be an important factor for employers to consider in relation to pay, especially if as a result of staying off work, employees suffer any wage loss.

Business travel overseas

  • Can we require employees to go on business trips overseas?

This will depend on the type of role the employee in question carries out, the purpose of the trip and the destination in question. Where the proposed work trip is to a country on the FCO’s list of exempt countries, the direction is likely to be more reasonable than where the trip is to a country where the advice is still to avoid all unessential travel. However, in some instances, it may be reasonable to ask someone to travel to a destination where FCO advice is for essential travel only. In some cases compelling an employee to travel might amount to a breach of trust and confidence, and/or might also breach the employer’s health and safety obligations to the employee. This issue is very fact and circumstance specific. It is also important to consider whether insurance coverage applies fully or partially in respect of the intended destination.

  • What happens if employees who have been working abroad need to quarantine on return?

Where an employee is required to quarantine as a result of having been abroad on a work trip, unless the contract or work arrangements provide otherwise, they would expect to receive normal pay. Where employees are going abroad to carry out directly chargeable work, it may be prudent to factor in the costs of having an employee quarantine (and perhaps not be able to carry out any work or work elsewhere for a 14 day period on their return) into any cost proposals to clients.

  • What happens if someone is stranded overseas on a work trip?

 As with quarantine, unless the contract or work arrangements provide otherwise, they would expect to receive normal pay.  Employers may be able to make an insurance claim, although this will depend on the specific insurance policy which may be affected by the destination and/or FCO advice at that time. Accordingly, it would be prudent to undertake a pre-trip insurance coverage check. 

  • Are there any exemptions to the quarantine rules?

 There is currently a list of exempt countries, and individuals returning to the UK from these countries do not require to quarantine on return to the UK. It is worth noting that this list is changing frequently and with little notice. It may be that individuals leave the UK when a country is on the exempt list but that that country is then subjected to restrictions while they are in it, so it is important to stay up to date.

Some occupations have some exemption from quarantine rules, such as certain delivery drivers and haulage workers, seamen arriving in the UK by ship, and offshore workers where they are required to carry out work on an offshore installation or to support an offshore installation. However, the exemptions are prescribed and they do not mean the individuals concerned are free from all restrictions. Given the sanctions for breaching quarantine rules, it would be prudent to review the application of the exemption on a case by case basis.

Health and Safety  Non-essential offices 

  • What steps do we need to take in terms of health and safety before bringing employees back to the office?

Employers should carry out appropriate risk assessments to identify what steps need to be taken before employees return to workplace. This assessment will need to take into account government guidance, and will depend on the location and layout of particular workplace. Employers will need to consider whether changes to workplace set up are necessary, whether changes to working hours such as staggered start and finish time and/or restricted numbers in the office might be required, whether further hygiene precautions are necessary, and what, if any, PPE might be required. It will also be necessary to consider employers’ additional responsibilities in relation to health and safety for pregnant employees.

  • What rights do employees have in relation to health and safety at work?

Employees have a right to work in safe conditions. If they feel that there are health and safety concerns, they have a right to raise such concerns with the health and safety representative, trade union, or with the employer directly. If there is an immediate threat to their own or another person’s health or wellbeing, they can also take steps to address that threat. There are legal protections in place which mean that anyone raising health and safety concerns in an appropriate way, or taking reasonable steps to address a threat, is protected from suffering any detriment or dismissal as a consequence of having done such protected acts. They may also have protection under whistleblowing legislation, which is dealt with below.

Whistleblowing

  • What is whistleblowing and how do we deal with it properly?

Whistleblowing, or making a “protected disclosure”, is the disclosing by a worker or employee of wrongdoing, for example about the breach of a legal obligation, or health and safety failings. It can even cover information that the employer already knows about. The legal framework is designed to try to encourage such disclosure to be made internally to the employer, allowing them to address the wrongdoing. Employers should take disclosures made to them seriously, and should ensure that workers do not suffer a detriment as a result of raising such concerns. Many employers find it helpful to have a whistleblowing policy to explain to both the person blowing the whistle, and the person who receives the complaint, what should be done. It’s important to understand that a disclosure does not have to be about a large scale legal failing. For instances, telling their line manager that one individual is deliberately or recklessly flouting social distancing or hygiene rules is potentially covered.

  • What protection do whistleblowers have?

The law wants to encourage workers to speak up about wrongdoing they witness, and for that reason whistleblowers have strong protections under the law. They must not suffer a detriment or be dismissed as a consequence of having made a protected disclosure. Detriment can be anything from demotion to being badly treated by other employees. The protection against suffering detriment goes beyond employees and includes a wide range of workers, including the likes of interns and agency workers. It’s worth noting that these protections only apply if the disclosure relates to one of the failings prescribed in the legislation, and where it is made to the proper person. Disclosures to the press or other third parties are usually not protected except in very specific circumstances.

  • What are the risks of getting it wrong?

Getting the treatment of whistleblowers wrong can be expensive. There is no cap on the amount of compensation they can be awarded in an employment tribunal. In some cases, if the individual can argue that they have lost their career prospects because of the way they have been treated, the pay-outs can be very large. It is also worth noting that employees do not need to have worked for an employer for two years to make a claim for unfair dismissal due to having made a whistleblowing disclosure. Instead, this is a day one right. For this reason, it is important that managers understand how to deal with disclosures properly.

If you have any queries about our Return to the Office bulletins, please do not hesitate to contact a member of the Employment Team.

Law as at 21 August 2020.

 

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