Jonathan Moreland

Ask the Expert: Employment Law COVID-19

16
Mar

Partner and Head of our Employment team, Jonathan Moreland, answers some of your frequently asked Employment Law questions relating to Covid-19. 

 

What evidence can an employer require in relation to COVID-19 related absences?
Employers are entitled to ask for “reasonable evidence” of incapacity (usually a doctor’s fit note) after the first seven days of any sickness absence.

In cases where the absence relates to COVID-19, the government has confirmed that any of the following would constitute sufficient evidence of sickness for Statutory Sick Pay purposes:

  • An isolation note from NHS 111 if they are self-isolating and cannot work because of COVID-19.
  • The notification from the NHS or public health authorities if they are self-isolating because they have come into contact with someone with COVID-19.
  • A fit note as normal.


The NHS or GP letter telling them to stay at home (shield) for at least 12 weeks because they are at high risk of severe illness from COVID-19.

 

Where an employee refuses to attend work due to fears about COVID-19, what can an employer do?

This should be a straightforward one to resolve it if is possible for the employee to work from home (see next page). If not, it will be necessary for the employer to consider:

  • the current public health advice;
  • the specific reason that the employee is concerned about attending work; and
  • whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of the employee’s refusal.


If the employer is satisfied that there is no discrimination angle, and there is no reasonable justification – backed up by the public health advice – for the employee to refuse to attend work, then there may be a case for initiating a misconduct investigation.

 

Should an employer allow an employee to work from home?

Following the announcement of the national lockdown on 4th January 2021, the current position in England is that individuals should only attend their workplace when they cannot reasonably work from home. Employers should take “every possible step” to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working.

Where it is not possible for employees to work from home e.g. construction workers and public-sector employees working in essential services, they should continue to travel to their workplace where necessary.

Clinically extremely vulnerable employees who cannot work from home should not attend work.

 

Can an employer require an employee to take holidays during lockdown?

The current government guidance states that employers who require workers to take holiday during furlough or a period of lockdown must consider any restrictions that the employee is under, including the need to self-isolate or socially distance.
These considerations must be viewed alongside the fundamental purpose of holiday, which is to rest, relax and enjoy annual leave.

Of course, a person’s opinion of what constitutes a restful break is completely subjective and it is difficult for an employer to assess what would or would not amount to preventing an employee from relaxing and enjoying their annual leave in accordance with the requirements of the Working Time Directive.

That said, it may be arguable that a restrictive form of lockdown which puts workers in effectively the same position as people who are subject to self-isolation, is an example of a period during which it is not possible to enjoy rest and relaxation and that employers should, therefore, allow workers to reschedule holiday during this period.

 

Can an employer require an employee to be vaccinated?

It is not currently mandatory, at a legislative level, for any individual to be vaccinated so it would be risky for employers to insist on vaccination, even in workplaces where there is close contact with vulnerable people. The ACAS guidance advises that employers should support staff in getting the vaccine, but cannot force them to be vaccinated, although it acknowledges that it may be necessary to make vaccination mandatory where it is required for someone to do their job e.g. where they travel overseas.

This is clearly a very delicate issue, requiring careful communication with employees and full consideration of the possible consequences if you choose to proceed down this route.
There could, for instance, be a myriad of potential discrimination issues to navigate, bearing in mind that the available vaccines will not be suitable for everyone, due to individual circumstances such as health conditions, dietary issues, religious objections to name but a few.

There is also the possibility that employers could find themselves on the receiving end of a personal injury claim if an employee, who they had compelled to obtain the vaccine, suffers an adverse reaction.

In view of the risks of a mandatory vaccination programme, it is advisable for employers to consider how best to achieve voluntary vaccination within their workforces. Collective consultation with employee or trade union representatives in addition to a sensitive internal communications plan may contribute towards voluntary take-up of the vaccine.

 

This article was taken from our February 2021 Prism Magazine. If you would like to read this publication please click here

 

If you require guidance on any of the above issues, or have any other queries in relation to employment or HR law, please contact Jonathan Moreland by email on jmm@swinburnemaddison.co.uk or call him on 0191 384 2441.

 

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