CIPD experts, leaders and practitioners tackle the key issues and questions around the pandemic
Q: What are the new quarantine rules and are any employees exempt?
Between 8 June and 10 July anyone entering the UK (even residents returning home) from any destination had to self-isolate for 14 days. The quarantine rules are reviewed regularly so employers should regularly check for up to date Government advice.
Travel overseas: From 4 July the government issued a list of exemptions for travelling to certain countries and territories although there is still advice against non-essential international travel, except to countries and territories listed.
Incoming travel: From 10 July the new travel corridor exemptions came into force for people arriving in England. People arriving in England from certain countries or territories therefore do not have to quarantine. For example, people arriving in the UK from France, Italy, Belgium and Germany no longer have to spend 14 days in quarantine.
People visiting or returning to Scotland, Wales and Northern Ireland should check the guidelines as the rules differ. For example, Scotland continues to quarantine passengers from countries with a higher prevalence of COVID-19 than its own. This means Scotland still required people travelling from Spain to quarantine when England, Wales and Northern Ireland did not. The whole of the UK reimposed quarantine rules on 26 July for travellers returning from Spain, requiring them to self-isolate for 14 days upon their return.
This applies to all travel, including air, train, ferry and coach from 75 countries and British Overseas Territories. However, the government still advises against cruise ship travel and travel to a number of high-risk countries. If there is a transit stop in a country that is not on the travel corridor list, then travellers will still need to self-isolate upon their return and check the guidance for the length of the isolation period.
If the government advises against travel it is very unlikely that any travel insurance will be and policies should be checked carefully especially emergency treatment and repatriation following illness and injury overseas including coronavirus-related illness. For further information see the travel corridors list for England, and the guidance for Scotland, Wales, and Northern Ireland.
At entry points such as airports or stations everyone will still have to fill in an online form with contact details and their address for the next two weeks.
For those who are not arriving from a travel corridor who have to quarantine it is preferable for friends or family to collect the person on their arrival, but public transport can be used if there is no other option. The individual can only leave their accommodation for 14 days for:
- urgent medical treatment;
- support from social services;
- food and medicine if this can’t be delivered by a friend or family member;
- a funeral of a close relative, or for other compassionate reasons; or
- an emergency, for example, a fire at their accommodation.
In addition to the list of travel corridors which mean that people arriving in England from certain countries or territories do not have to quarantine certain individuals are exempt from the requirement to provide contact details and address data. This exemption includes diplomats and consular officials, defence personnel and certain contractors or officials working on essential border security. Frontier workers who live in the UK but are an employee or self-employed person who go to another country for work at least once a week are also exempt.
There is a long list of other exceptions for certain occupations including seasonal agricultural workers, certain health or care professionals, certain oil and gas workers, road hauliers, nuclear personnel, specialist aerospace engineers, people engaged in urgent or essential work on electronic communications networks. A full list of the exceptions can be accessed on the Government website.
Q: How should we handle any quarantine period for employees who have been travelling to certain destinations? Can we insist they take the 14 days as annual leave?
The Government foreign and commonwealth office continues to advise against non-essential international travel, except to certain exempt countries and territories.
Employees who re-enter the UK from any country not on the exempt list must self-isolate for 14 days even if they have only stopped in that country in transit. This rule will be reviewed regularly so employers should regularly check for up to date Government advice. Ideally employers should encourage employees who must travel to visit countries which do not require the 14-day quarantine period upon return. Employers should remember that decisions to impose a quarantine on travellers may be very sudden. A destination may be on a list of countries that the Government has said is safe to travel to, but then quarantine is imposed. For example, the decision on 25 July to take Spain off the safe-travel list was announced only the day before. Such decisions leave employers and employees with no time to plan ahead.
Employers must have open discussions with employees about holiday plans to countries where quarantine is required upon return and proposals for that quarantine period upon their return. This applies whether the quarantine was known in advance or imposed suddenly. Employers need to plan for the impact of any 14-day quarantine periods on employee’s work and the wider team.
- Discourage business related travel at the present time. Where travel is essential then this should be to countries on the current travel corridor list. Some employers will fall into an exempt category. See our Q above on the quarantine rules and exemptions.
- Discuss the quarantine requirements with the employee before he/she goes away to ensure they understand the rules that apply in the country they are visiting and the rules that apply on their return. Employers should agree how the employee's return will be managed.
- Be aware of any last minute changes to quarantine rules and reassure employees that an agreed plan can be implemented.
There are four main options for employees who visit countries outside the list of travel corridors.
Working from home
Allow the employee to work from home on their return for 14 days from countries where quarantine is required upon return.
If the employee cannot work from home, then the position with respect to pay during the 14-day period is not clear. It is unlikely they can claim SSP (see below).
In the absence of any government assistance employers may decide to simply keep paying the employee for remaining at home. This would effectively amount to granting additional paid time off work in addition to normal holiday leave. This option may be appropriate if home working is not an option and if the employer can afford to do this. This solution may be most appropriate if the quarantine was imposed suddenly so the employee thought the destination was in a safe travel corridor when they booked.
Employers could agree with employees that any quarantine period be taken as a period of unpaid leave if home working is not an option.
SSP during quarantine
Treating any quarantine period as sick leave is not really a viable option. Post travel quarantine is not a ground for claiming SSP. Any individual self-isolating because they or someone in their household has Covid-19 symptoms may be able to claim SSP. Additionally those on isolation under the test and trace scheme can claim SSP, but a post-holiday quarantine period is different. If an employee chooses to go on holiday, they have taken the risk and presumably knew of the requirement to quarantine upon return. The existing rules only enable claims for SSP if it is ‘known or reasonably suspected that the individual has been in contact with a case of, a relevant infection or contamination’. Returning from travelling does not necessarily lead to a reasonable suspicion of contact with someone infected with coronavirus.
If the employee begins to show symptoms at any point including any 14-day quarantine period then the usual rules and processes around sick leave and SSP apply (more information on coronavirus statutory sick pay can be found in the FAQs on managing employees who are self-isolating or who have symptoms).
Annual leaveEmployers may wish to consider imposing travel restrictions if the 14-day quarantine period is known and will affect the employees' ability to work on return home but this is not without difficulty. Employers can introduce a temporary policy across the workforce that anyone who travels overseas to a country subject to the 14-day quarantine must take that time as further annual or unpaid leave. This unilateral change in terms and conditions would amount to a breach of contract so employees could leave and claim constructive unfair dismissal. There is also a potential risk of a discrimination claim because those of certain nationalities who wish to visit relatives will be disproportionately affected, although the employer may be able to justify this. Many employees may accept the change rather than resigning in response and bringing a claim. However, there is at least a risk some will threaten proceedings.
If employees insist on travelling and refuse to use more annual leave during the quarantine period, then employers may face tribunal claims if they insist the employee’s extra 14-day absence is classed as holiday. There are rules enabling employers to specify when employees take leave but being quarantined at home is not the purpose of annual leave.
In England and Wales breaching the quarantine may result in a fine of up to £1,000 and possible removal from the UK for overseas nationals.
Q: What do employers do if an employee goes on holiday to a country and a quarantine is imposed suddenly for those returning from that destination?
If an employee is on holiday or is about to depart and a quarantine is suddenly imposed for people returning from that destination, employers will need to be flexible and assist employees with following the quarantine requirements upon their return. Employees also need to be responsible and flexible; disputes may arise if some notice is given that a quarantine is imminent and the employee could perhaps have avoided the sudden quarantine by returning home promptly.
By way of example of a sudden quarantine, people returning from Spain to the UK at the end of July had to unexpectedly quarantine for two weeks when the Government removed Spain from the safe list of countries. Many employers and employees were completely unprepared for this decision. More countries could similarly be removed from the travel safe list at short notice - risking quarantine for travellers on their return. The priority for employers and employees is to co-operate with the requirement to stay at home to stop the spread of the virus. Employers can advise employees to build in some contingency planning so that, for example, they return home a few days before they are due back at work. This at least gives employers time to plan replacement cover if needed but of course employers cannot dictate how employees structure their holiday time.
The basic options for quarantined employees are:
- Working from home if possible
- Paid leave
- Unpaid leave
- Using annual leave
For further details on these options see the Q&A on handling quarantine periods (above).
Employees faced with a sudden quarantine period cannot claim SSP if they need to quarantine because of the trip. SSP may be payable if they have symptoms or are contacted by the track and trace service.
Q: Can employers deny holiday to employees where it is known that they will have to quarantine on their return?
The best way to deal with proposed personal travel is for employees and employers to openly discuss travel plans and follow the latest Government guidance, including the requirement for a 14-day quarantine period upon return to the UK when returning from certain destinations.
Employers can cancel any annual leave that has already been authorised, so long as the minimum notice is provided. The general notice period for taking leave is a period at least twice as long as the amount of leave the employee has requested (unless agreed otherwise). For example, employers need to give four week’s notice cancelling two week’s holiday.
If the employee has already booked a holiday, perhaps based on leave which was approved before the current travel restrictions were known, then the employer is causing financial loss to the employee. The safest course of action is to allow the employee to take their holiday but try and find work they can do at home upon return during the quarantine period, even if this is a special project.
Employers imposing future temporary travel restrictions
Employers could impose a temporary policy advising employees in advance not to travel to countries outside the current travel corridors, and this may assist. However, enforcing this by dictating what an employee can do with their leisure time is unlikely to be a lawful and reasonable instruction from an employer. The employer can argue that they have a duty to take care of other staff which justifies the restriction. However, the employee may be going to a relatively safe destination or the country may not have been outside the travel corridor when it was booked.
Employers who ban future private travel, even temporarily, may disproportionately affect certain groups and this could be indirect race discrimination. However, employers may decide that their duty to protect other staff is worth taking the risk of a potential discrimination claim. Employers can defend indirect (but not direct) discrimination claims using the ‘proportionate means of achieving a legitimate aim’ defence. The fairness of a travel ban for employees depends on the length, destination, the level of risk, the employee’s reason for wishing to travel, when the quarantine for that country was imposed and the overall situation at the time. An absolute ban may not be reasonable if the only downside is the employee having to self-isolate after returning.
If employers target certain staff specifically and request them not to travel or come to work this could lead to direct race discrimination claims. Any request to avoid travel and not attend work should apply to all staff regardless of nationality or ethnicity and be linked to potential exposure to the virus not racial origins.
Q: What are the current rules about face coverings and exemptions?
From 24 July it is mandatory for customers to wear a face mask in certain premises in England including shops and supermarkets. It is already mandatory to wear a face mask in shops in Scotland and will be mandatory in Northern Ireland from 1 August. There are currently no plans to enforce their use in shops in Wales.
England: face coverings must be worn when using public transport, shops, supermarkets, hospitals, GP surgeries, care homes and other NHS or care settings. This includes when buying takeaway food and drink, although they can be removed in a seating area. This means visitors must wear a face covering immediately before entering the premises until they leave including:
- indoor transport hubs (airports, rail and tram stations and terminals, maritime ports and terminals, bus and coach stations and terminals)
- indoor shopping centres
- banks, building societies, and post offices.
Face coverings are encouraged in other enclosed public spaces where social distancing is difficult and there are people you do not normally meet.
Full details are contained in the guidance and the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020.
Scotland: Face coverings are compulsory in shops, on public transport and in transport premises such as railway and bus stations and airports. This includes open-air railway platforms, but not bus stops. More information is available on the Government website.
Face coverings are advised in other enclosed public spaces where social distancing is difficult and there are people not from the same household.
Northern Ireland: Face coverings must be worn on public transport and are recommended in enclosed spaces where social distancing is not possible. More information is available on the Government website.
Wales: From 27 July three-layer face coverings are mandatory on all public transport including buses, trains, and taxis. The measure is being kept under review and more information is available on the Government website.
In England face coverings are not required in hospitality and entertainment settings, including restaurants with table service, bars, pubs, cinemas and casinos. They are also not required in visitor attractions and sports venues such as heritage sites or museums or gyms. In some of these places face coverings are not mandatory due to other safety measures in place such as hairdressers which are also exempt.
Face coverings can be removed to eat and drink for example in a food court or supermarket café. Face coverings must be put back once you leave the seating area. For exemptions in different parts of the UK please see specific guidance for Northern Ireland, Scotland and Wales.
In England shop, supermarket or transport staff do not have to wear face coverings although employers may consider this as part of their risk assessments.
Removal of face coverings may be permitted for identification in banks, building societies, or post offices, for health recommendations for example by a pharmacist, or for age identification purposes when buying alcoholic drinks.
There are also exemptions for all visitors for health, age or equality reasons including children under the age of 11 and those who can’t wear or remove a face covering because of:
- a physical or mental illness, impairment, or disability
- the face covering causing severe distress
- needing to communicate with some-one who relies on lip reading
- avoiding harm or injury to yourself or others
- eating or drinking
- taking medication
- requests from a police officer or other official requesting you to remove your face covering.
The guidance is this area is under review and may change so employers are advised to regularly check the latest information on the Government website.
Q: Do employers have to enforce face covering rules?
Employers who operate premises where face coverings are required, for example shops, supermarkets and transport, should take reasonable steps to promote compliance but do not have to actively enforce face covering rules.
Employers can refuse entry to anyone not wearing a face covering but do not have to do this. Any staff dealing with enforcement should be trained in the extensive list of exemptions (see the Q&A on face covering rules and exemptions.) The guidance on face coverings has changed rapidly. Initial government advice was that the evidence was weak to support their use; but this was followed by mandatory introduction on public transport, and then an announcement that they would be compulsory in shops and supermarkets from 24 July.
The current rules apply to visitors wearing face coverings in retail and transport settings; employers can currently choose if their staff have to wear face coverings as well.
Employers should consider use of face coverings by staff as part of their COVID-19 risk assessments. The COVID-19 secure workplace guidelines and the specific sectoral guidance require social distancing until at least until December, including in most workplaces. If employers cannot reduce the distance and contact between employees sufficiently, they may decide to adopt face coverings but employers must assess the benefits and practicalities of requiring face coverings in their own working environment. For example, in workplaces with high telephone use, face coverings may be impractical. As part of the risk assessment employers should consider alternative options to protect employees, such as barriers between workers or between workers and customers.
Risk assessments should cover also safeguarding staff from abusive or violent customers if disputes arise over wearing face coverings.
The government is not yet making face coverings compulsory in offices although this may be reviewed; it is recommended that employers consider their use where appropriate. At the very least employers should consider if their duty to keep staff safe would be enhanced by staff wearing masks and by proactive enforcement measures. Employers should not try and stop employees using face coverings if they choose to wear them unless the employer has a very good reason. Whilst face coverings may be beneficial, wearing one is not a replacement for other ways of managing risk of COVID-19 infection in workplaces.
Making face coverings compulsory
If employers can insist on face coverings at all for staff who refuse to wear them, depends upon whether the instruction from an employer is seen as a reasonable instruction which will depend upon the nature of the workplace and the employee's reasons for refusing.
Face coverings also need to be changed and washed regularly so providing several face coverings for each employee per day also has costs implications for employers.
Some unions including Unite, the GMB have said that employers should pay for surgical-grade face masks for all workers who need to wear them. Unless the government makes face coverings compulsory in workplaces, whether to fund face coverings or ask workers to supply their own, or to partially contribute to the cost, is currently a choice for employers. Employers must make the decision following their risk assessment taking into account their duties to protect employees’ health and safety.
If face coverings are supplied, they should be of a relevant standard. The government’s current advice is that face coverings could be used as a precautionary measure in some settings but does not specify surgical grade masks. The safest course is for them to be World Health Organisation compliant. The WHO advises at least three-layers and a waterproof outer layer to have any serious effect against the transmission of coronavirus. Cloth masks may be more cost effective but must be the relevant thickness and should not be made of material that sheds fibres that could be inhaled. They must also be washed after each use.
If employees are required to wear face coverings, the employer should provide locations for their safe removal and suitable hand sanitisation. If employers share buildings, they will need to be consistent where entrances, exits lifts and corridors are shared. This would apply to any face coverings adopted for staff too.
Enforcement measures for customers
The responsibility for wearing a face covering rests with the person who should be wearing the covering. The enforcement measures are against the individual, not the employer. People who do not wear a face covering are liable for fines of up to £100 unless they are exempt. The fine is £50 if paid within 14 days.
If a non-exempt individual refuses to wear a face covering, the business operating that premises can refuse entry and call the police but does not have to do this. Similarly transport operators can deny access if a passenger is not wearing a face covering, or direct them to wear one or leave.
It is the police who have the enforcement powers and can issue the fine. Transport for London officers also have enforcement powers including issuing fines. In theory police can forcibly remove shop customers or prevent them from entering if they are not wearing face coverings. Police officers will not be patrolling premises and realistically are only likely to have the resources to intervene if people not wearing a face covering refuse to leave or become aggressive.
Employers therefore do not legally have to enforce the rules and can choose the level of their response, this may in part be dictated by the overall needs or concerns of members of the public visiting the premises. This can range from putting up notices, reminding visitors verbally in an informal conversation, denying entry completely or ignoring those who do not comply.
Q: Now that shielding is coming to an end what considerations or changes do we need to make for employees who have been shielding?
The Government have ended (or paused) the shielding programme from 31 July onwards. With shielding coming to an end, employers will face some difficult staff issues. Employees who have felt safe shielding can now return to the workplace, if they cannot work from home. As a priority, employers will need to undertake individual risk assessments to support these shielding staff to return.
Shielding staff are those in the clinically extremely vulnerable category who are at very high risk of severe illness from Covid-19 and affects those who live with people in that category. Until 31 July people affected should continue to shield and stay at home as much as possible. There is an extensive list of those likely to be shielding on the Government website, including people who have had organ transplants, those with specific cancers and leukaemia, or undergoing treatments that affect the immune system and those with severe respiratory conditions.
(Clinically extremely vulnerable people with a great risk of severe illness who received shielding advice should not be confused with two other categories. Clinically vulnerable people, including those over 70 and pregnant women, were not shielding but were advised to minimise contact with others. Likewise the vulnerable included children at risk of abuse or with SEN and women at risk of domestic violence who were advised to follow general guidance unless they were also clinically or extremely vulnerable.)
From 6 July: people shielding should maintain strict social distancing and minimise contact with others including not attending work. The Government advises that employers should continue to support shielding for those who are clinically extremely vulnerable, including offering home working where possible. If working from home is not feasible, then furlough pay or SSP may be available during shielding. Those who are shielding can meet outdoors in groups of up to 6 people during this time and create a ‘support bubble’ with one other household.
From 1 August: The Government will suspend the shielding programme on 31 July. People who are shielding can return to the workplace if they cannot work from home. Individual risk assessments to support the return of shielding staff should be undertaken well in advance. Government advice emphasises that those shielding can go to work as long as the business is Covid secure. Matters to consider may involve adjusted duties or redeployment, provided staff agree. The Government’s steps to relax shielding guidance are available on the Government website.
After the cessation of shielding those formerly shielding should continue adopt strict social distancing rather than full shielding measures. They may go out to buy food, to places of worship and for exercise but should take particular care to maintain social distancing and minimise contact with others outside their household or support bubble. As they are still at risk of severe illness the advice remains to stay at home where possible. Children who are clinically extremely vulnerable can return to school with frequent hand washing and social distancing. At the end of July, Government food and support packages to those been unable to leave home during lockdown will also cease.
Some shielding staff will be ready to return to work, others may be very anxious, uncomfortable or uncooperative about returning. Discussions with staff surrounding individual risk assessments will be of critical importance. Line managers need to speak to these people individually and agree specific arrangements resulting from the risk assessments. Arrangements will depend upon individual circumstances. Specialist advice may be helpful, for example from any occupational health service, doctor’s advice on the underlying condition, employment assistance programmes or counselling. Shielding staff may need time to adjust to reassurances that changes have made the workplace as Covid secure as possible.
The Health Secretary has said that it is critical for employers to ensure employees work in a Covid-secure environment. There is specific Government guidance for different sectors which should be followed. When those who have been shielding return to the workplace from 1 August 2020 it will be for employers to show the workplace is a secure environment which is following the current social distancing guidance and physical adjustments to the workplace. If employers have carried out risk assessments and made the workplace as Covid-secure as possible, then anyone who still refuses to return to work may be unreasonable. In this situation, unpaid leave or furlough may be available options.
Even though the shielding programme ends at the end of July employers can furlough previously furloughed staff until the end of October if the eligibility criteria are met. This includes having been furloughed under the first phase of the scheme. So, furloughed but clinically highly vulnerable staff could remain on furlough and be paid under the job retention scheme. This could happen until any mechanisms making the workplace Covid- secure were put in place.
Health and safety
Employers have a high degree of responsibility for employee’s health and safety which will be of central importance when shielding staff return to work from 1 August. From this time, employers may wish to allow employees to work from home where possible as, the health and safety protections at work are harder to meet for those who are clinically extremely vulnerable. Employees may refuse to come into work if they reasonably believe there is a serious and imminent danger or the workplace is not COVID-secure. Those people who were formerly shielding are protected from detriment or dismissal for a health and safety reason. If an employer insists on ending homeworking with no good reason this may be a constructive unfair dismissal which could be automatically unfair with no minimum qualifying period of employment being required to bring the claim.
All employees (not just those who are shielding) who reasonably believe themselves to be in serious and imminent danger are entitled to take appropriate steps to protect themselves. For further details of employers’ health and safety duties see the Q&A on health and safety following return to work.
Entitlement to statutory sick pay (SSP)
Since April those who were in self isolation due to shielding (even if they would otherwise be able to work) have been able to get SSP if employers chose not to furlough them and home working was not an option. Shielding employees have been entitled to SSP for every day they were unable to work as they are deemed incapable of work for the shielding period. From 1 August employers can no longer claim SSP for staff members just because they are shielding.
Employees who were shielding could be furloughed during the operation of the Coronavirus Job Retention Scheme provided that they qualified under the first phase of the scheme, or can be allowed to work from home.
SSP is available for those with symptoms or who live with someone with actual coronavirus symptoms, or who have been notified that they should self-isolate under the NHS test and trace system. This covers people who are not unwell but have been told to self-isolate because they have been in close contact with someone who has tested positive for COVID-19. If people are well and can continue to work remotely they should be paid as normal and they are not entitled to SSP. If a regional lockdown occurs it is not entirely clear what Government help is available towards employee's pay, especially for staff who have not been previously furloughed.
The Equality Act 2010 provides employers must not discriminate against disabled employees by subjecting them to a detriment or dismissing them. Many formerly shielding employees with underlying conditions may meet the definition of disability under the Act. This means employers must discuss, and then make, reasonable adjustments. These could include allowing homeworking or transferring to another role in any lower-risk area. If there are aspects of work that can be done from home, this is likely to be a reasonable adjustment which must be considered for those who qualify under the Equality Act disability provisions. To be protected those who were shielding must have a physical or mental impairment which has a substantial and adverse effect on their ability to carry out day to day activities.
Other complex issues can arise as it is possible some staff members may be more at risk from the consequences of Covid-19, due to their race or age as well as disability.
Requests to continue home working are likely to fall within the requests for flexible working legislation.
Employees who are living with people who may be shielding
The protections referred to above are also likely to protect employees who live with people who were shielding. The Equality Act 2010 protects people from discrimination as a result of their association with a disabled person. Employers who give a blanket refusal to consider continued home working would disproportionately impact people who are associated with disabled people. It is also likely that they have protection from detriment or dismissal as there are genuine health and safety reasons for needing to stay away from the workplace. As ever, each case needs to be looked at on its own facts.
Shielding employees with underlying health conditions employers can seek the support of occupational health or other professionals for risk assessments, and advice on returning to work or on reasonable adjustments.
The risk for shielding employees are not simply those in the workplace, but also the exposure in their commute to work and back. Employers should be flexible and understanding and keep the health and safety of their employees as their priority.
More Government guidance for employers about managing a return to work and supporting staff to return to the workplace following shielding may be issued before the end of July so employers should keep up to date with the latest information available on the Government website.
Q: Do we have a legal right to take employees' temperatures at work?
The legal issues involved in testing temperatures at work are complex and involve data protection laws (see below).
Staff and residents in care homes for the over 65s and those with dementia now receive regular coronavirus test as part of the new social care testing strategy. The Government's current advice encompasses the five steps for working safely, along with sector-specific guidance. The official advice is still that people should continue to stay at home as much as possible. People who can work from home should continue to do so. People who can’t work from home (for instance, those working in construction or manufacturing), are being 'actively encouraged to go to work' but to avoid travelling there by public transport if at all possible. The detailed guidance does not address general workplace temperature testing, so the decision is left to employers in many cases. Certain workers are eligible for NHS drive-through testing.
Eligibility for NHS testing
The following people should be tested even if they do not have symptoms:
- social care workers and residents in care homes (with or without symptoms)
- NHS workers and patients without symptoms, in line with NHS England guidance.
The following people should be tested, if they have symptoms:
- all essential workers including NHS and social care workers;
- anyone over 65;
- anyone whose work cannot be done from home (for example, construction workers, shop workers, emergency plumbers and delivery drivers);
- anyone who has symptoms of COVID-19 and lives with those listed above.
So employees who have symptoms, whose work cannot be done from home should be tested by making an application through an online portal and going to a drive-through venue to obtain testing.
The government has detailed guidance on getting tested. Although this extends the amount of drive-through testing employers still need to decide whether to adopt general temperature testing in the workplace, and may consider this as part of their COVID-19 risk assessments.
The physical, emotional and mental wellbeing of the workforce remains the key principle of managing any return to the workplace. Employers must continue to communicate openly with employees and workers, to understand their concerns and perspectives. If it is not essential for work to happen in the workplace, then the default should be to work from home. Employers should keep checking the government website for the latest information.
Deciding to test
In the absence of a Government requirement for temperature testing requirement, employers can decide not to undertake testing. Displaying a high temperature is one of the main symptoms (along with a new continuous cough and loss of smell or taste) of a COVID-19 infection but equally someone who is infected may show no symptoms at all. On the other hand, employers may decide to follow the lead of other countries and try temperature testing to discharge their health and safety duties. Employers may decide employees need reassurance that the workplace is safe, and staff representatives may suggest temperature testing during Coronavirus risk assessments.
Voluntary temperature testing
For businesses that remain open or reopen and decide to test, the legal position concerning taking employees’ temperatures for Coronavirus is similar to the medical testing of employees for other reasons. The easiest way for employers to conduct such medical tests would be on a voluntary basis. The contractual terms agreed in the employment contract or accompanying policies may also be of assistance to employers who want to check employees' temperatures at work.
Employers who wish to monitor employees’ temperatures should openly explain the current Coronavirus advice, their concerns and risk management strategy. Employees may then choose to have their temperatures taken based on this advice.
If employees do not agree and there is no contractual provision or agreed policy covering the situation then taking an employee’s temperature is unlawful. Certainly, an employer should not try to force employees into having their temperature taken, or issue threats of suspensions, disciplinary or dismissal processes.
Express terms: Some employment contracts have clauses in them which impose an obligation on employees to undergo drugs testing, providing a sample, of urine, hair, saliva or blood etc. Depending on the wording of the clause, taking a temperature might be covered by these clauses.
If an employee refuses to comply with a pre-existing clause which encompasses taking temperatures, then the employee may be in breach of contract by refusing to co-operate. If there is a clear clause which covers taking temperatures then refusal might provide grounds for a disciplinary or dismissal procedure although this is generally inadvisable.
Implied terms: Many contracts of employment do not contain a contractual term entitling the employer to require employees to be tested. This means employers can request voluntary testing but can't compel this. A possible course of action for employers who wish to insist on testing (without an express clause) would be reliance on a possible implied contractual term that employees should comply with a reasonable request from their employer. On the one hand, employers do have a duty to protect the safety of their workplace under the Health and Safety at Work Act which includes ensuring that employees are not infecting others with the Coronavirus. On the other hand, from a practical point of view, an employee may be infected with Coronavirus without yet having a raised temperature. Some businesses, such as public transport and healthcare, pose different safety risks where testing may be more justified.
Whether insisting on taking temperatures is reasonable (without an express clause) depends on a number of factors including the employee’s role, official health advice on precautionary measures at the time, the employee’s symptoms and the alternative causes of action, such as self-isolation, that are available. Employers could breach their own implied duty of mutual trust and confidence to other employees if they do not request an employee to take a test if necessary. In the context of the unprecedented circumstances, the implied duties of trust and confidence and employers’ obligations to ensure the health and safety of employees it is arguably reasonable to request testing. However, it is preferable for employers to suggest working from home or self-isolation rather than trying to force a reluctant employee into temperature or other testing. If employees agree to have their temperature checked and have a high temperature, an employer may reasonably require them to go home as the temperature suggests an illness even if not Coronavirus. In the case of employees who are off sick they will be required to test by the test and trace system anyway.
Although the Government guidance does not address widespread temperature testing, the Information Commissioner's Office has issued guidance which addresses the issue. The critical issue remains whether the tests and keeping any resulting records are necessary and proportionate. Employers can ask employees to notify any COVID-19 diagnosis as this processing of health data is justified under the GDPR as being necessary to comply with employment and social protection law or for reasons of public interest in health.
If employers process information that relates to an employee, they need to comply with the GDPR and the Data Protection Act 2018 (similarly to drug testing). Any data that an employer has about an employee’s temperature, symptoms, where the employee has been and whether he or she has tested positive for Coronavirus is health data, and is referred to as ‘special category data’ under data protection law. For example, if an employee is tested through the test and trace system and forwards emails confirming their status may be special category data because it is medical information. Additional requirements apply to ensure the data is processed fairly and lawfully. Under these circumstances, it is likely that an employer will be required to have a policy document covering the processing to ensure compliance with key data protection principles including transparency, data minimisation and security requirements.
Employers may be entitled to process such employee information on the basis of the employer’s health and safety duties. This is provided that it can be shown that temperature information is necessary to protect the health, safety and welfare of employees. Only necessary data should be kept - don’t collect personal data that you don’t need. Employers should consider and document the risk to employees and any alternatives to obtaining and processing the data that have been considered. The health and safety context, such as decisions relating to office closures or disinfecting the workplace will also be relevant to justify the processing. (See paragraph 1, Schedule 1 Part 1 of the UK Data Protection Act 2018 and Article 9(2)(b) GDPR).
Q: How should we support pregnant employees?
Risks to pregnant women
Pregnant women have extra statutory protection to ensure they are protected from risks at work. Employers have a duty to protect all employees and an even higher duty towards any staff who are pregnant. Employers of pregnant women should be extra cautious and to avoid non-essential contact as much as possible. Whilst social distancing remains in place or in the event of a local outbreak it is safer for employers to continue to offer working from home if this is feasible.
Where it is not possible to offer home working, if necessary pregnant employees can be offered suitable alternative employment on a temporary basis (that could be done from home) or suspended from work on medical grounds (on full pay). Other potential adjustments include temporarily altering the employee's working conditions or hours of work. If the pregnant employee remains suspended until the fourth week before the expected week of childbirth or are absent from work for a pregnancy-related reason, this triggers the commencement of her maternity leave.
Easing of lockdown
As lockdown eases the Government has given employers more discretion and asked them to decide how their staff can work safely, which can mean making workplaces safe or that employees should work from home if they can. Pregnant employees should still socially distance and take particular care to minimise contact with others outside their household. So home working for pregnant women who wish to do this is one way of working safely which has worked for many employers and employees.
Employers have ongoing duties under health and safety legislation and should undertake risk assessments, including the extent to which it is possible to follow social distancing, minimising the use of public transport and staying 2m away from others wherever possible (and 1m if 2m is not possible).
As restrictions lift, pregnant women and anyone with underlying health conditions must still minimise contact with others, for example, by providing pregnant women with their own office or providing personal protective equipment. If employers cannot offer safe work then working from home or agreed suitable alternative work may be the best options.
Health and safety
If a pregnant employee’s colleague or someone else in the workplace has coronavirus symptoms or has been in contact with others with COVID-19 that person may consider themselves in serious and imminent risk of danger to health and safety. In such situations there is special protection against dismissal and detrimental treatment if the pregnant women wants to leave work to protect themself.
This protection is under Section 44 of the Employment Rights Act 1996 and requires a reasonable belief that there was a serious and imminent risk based on the situations at the time and the steps taken and advice given about the risks.
Clinically vulnerable and extremely vulnerable
The shielding programme is paused from 1 August onwards; generally pregnant women did not need to practise shielding anyway. However, they should still follow advice on social distancing which remains in place until December. Most pregnant women fall into the ‘clinically vulnerable people’ who were advised to take particular care but did not need to be shielded.
Only some pregnant employees were classed as clinically extremely vulnerable to coronavirus, including women with significant heart disease who are pregnant. These women would fall in the shielding category until 1 August. During the operation of the furlough scheme until the end of October these employees could still be furloughed if they cannot work from home. However, in almost all cases to be eligible for furlough, employees would have to have been furloughed for the first time before 10 June. Although there are exceptions to the qualifying dates for returners from maternity leave these exceptions do not apply to pregnant women who are yet to take their leave.
Being on furlough does not impact eligibility for or the amount of statutory maternity, adoption, paternity, or shared parental pay. Pregnant women who are not furloughed and were shielding could get Statutory Sick Pay (SSP) until shielding is paused.
Employees who are pregnant during the crisis can start maternity leave as usual. If the workers planning to take some form of statutory parental leave were furloughed their statutory payments are based on their usual earnings not the furlough pay.
Leave and pay
For staff already on maternity, paternity or adoption leave or shared parental pay normal rules for statutory pay apply. For example, eligible mothers will be entitled to claim up to 39 weeks of statutory maternity pay or maternity allowance. The rate is 90% of average weekly earnings for the first six weeks, followed by 33 weeks of pay at 90% of average weekly earnings or the statutory flat rate (whichever is lower). The statutory flat rate rose to £151.20 a week from April this year.
Enhanced contractual maternity, paternity, adoption and shared parental pay are included within the wage costs that employers can claim back through the Coronavirus Job Retention Scheme until this scheme ends at the end of October. Any further claims during this final phase of the flexible furlough scheme depend upon when the employee was furloughed, when their leave occurs and whether they are on statutory or contractual maternity etc schemes. See our FAQs on the extended furlough scheme for more detail on aspects of maternity leave and furlough.
Q: If we are asked to shut as a business, how can we manage this for our casual staff?
The Government has stated that people who can work from home should continue to do so but people who can’t work from home (for instance those working in construction or manufacturing), are being 'actively encouraged to go to work'. However, people should avoid public transport if at all possible.
It's crucial that employers remember that the physical, emotional and mental wellbeing of the workforce remains the key principle of managing any return to the workplace. Where the safety of employees cannot be guaranteed, employees should remain at home as much as possible. Employers must continue to communicate openly with employees and workers, to understand their concerns and perspectives. If it is not essential for work to happen in the workplace, then the default should remain for now to continue to work from home.
The term 'casual' covers a wide range of legal status; workers labelled as casual could potentially be employees, workers or self-employed. Their status may not have been called into question until considering their rights following the Coronavirus outbreak. The government has introduced a range of support measures for businesses during this time, including the Coronavirus Self-Employment Support Coronavirus Job Retention Schemes. More information can be found in the FAQs on these schemes on the government website.
The precise legal rights of casual workers will depend upon their status which is governed by how the arrangement operates in practice and upon the terms of the contractual documentation. Some staff deemed to be casual may in fact be protected as employees.
Statutory Self-Employment Scheme
If the casual staff are not employees on the PAYE system, then, as self-employed persons, they should be contacted by HMRC under the Coronavirus Scheme for the self-employed. The business that provided them with work will not be involved in the process, and the worker should obtain a payment provided that their average profits in the past three tax years were under £50,000. The individuals must be predominantly self-employed rather than employees i.e. their self-employed profits must be more than half of their average taxable income. See our FAQs on Self-Employed workers for more on this scheme.
Coronavirus Job Retention Scheme
If the casual staff are employees on the PAYE system the employer may be able to include those staff in its claim for an 80% contribution towards their pay under the scheme.
If casual staff have already been assigned to shifts, the legal position will depend upon the contractual arrangement. Some contracts state there is legally binding commitment once a shift is offered. If so then the organisation may be contractually bound to pay the worker. In other cases, previous custom and practice may mean that a worker is paid for a last-minute cancellation of a shift.
Breach of contract claims can arise if an organisation has agreed work and then attempts to renege on this. Ideally the contract will contain a clear policy on cancellation of work. If no shifts have yet been offered or accepted, then there may be no contractual obligation to pay the individual if there is a Coronavirus related business closure or lock down.
As well as basic contractual rights another legal concept that may come into play is that of frustration. Some contracts can be set aside where an unforeseen event makes it impossible for one or both parties to fulfil the contract. The concept doesn’t arise very often in an employment context. Examples where frustration has been successfully argued by the employer include situations where the employee dies, is sent to prison or is excluded from their place of work by a third party, or where the employee is ill. The law takes a pragmatic approach to how long the employer and employee cannot perform for, how long the contract was for, the terms of the contract and whether the events genuinely makes the contract impossible to perform.
In the context of Coronavirus a three-week closure of a workplace would not frustrate a longer-term ongoing contact because the remainder of the contract can still be fulfilled. However, if a casual worker had a specific arrangement of short term work at the employer’s premises, for example for one month, and the workplace was then closed down during that same time period then the contract may be frustrated, absolving the employer from the obligation to pay.
Casual workers who are self-employed should be able to claim 80% of their average income under the self-employed support scheme. If they cannot, for employers who can afford to do so, paying them something for a last-minute cancellation due to coronavirus closures may be a practical and ethical compromise. Some casual workers may have contractual protection and may threaten to make a claim so a goodwill payment of some expenses, an inconvenience payment, or a commitment to future work if a rota or shift is cancelled at short notice may resolve the situation.
(Previous recommendations of the Low Pay Commission in 2019 to compensate casual workers for last-minute cancellations of shifts have not been implemented as yet.)
DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.
If you have other queries about COVID-19 not covered above, please contact the CIPD member employment law helpline on 03330 431 217 or visit the Community pages
We know that our members and customers are facing challenging times and we are here to help you. Due to a high number of calls we apologise that your wait time may be longer than usual. We appreciate your patience and will connect you to an expert adviser as soon as we can.