WILL I GET PAID IF IN SELF-ISOLATION OR QUARANTINE AS A RESULT OF CORNOVIRUS?
ACAS has issued guidance for employers dealing with absences as a result of Coronavirus. Go to: https://www.acas.org.uk/coronavirus.
The general rule is that an employee is entitled to be paid his or her full wages when he or she is able and willing to attend work.
Must an employer pay an employee full pay or even sick pay when he or she is quarantined or in self-isolation pursuant to medical advice?
Quarantine and/or self-isolation but not “sick”:
When an employee is not sick in the conventional sense, but is in quarantine or in self-isolation pursuant to medical advice, the employee is not entitled to his or her normal pay. Also, there appears to be, on a reading of the current legislation, a legal obligation to pay statutory sick pay (SSP). In light of the change to the SSP rules announced by the Prime Minister during PMQs this week, employers will be required to pay self-isolators from the first day of their sickness. This makes sense as this would be discouraging the employee from attending the workplace and potentially jeopardising the health and safety of the workforce. Other practical options could be to allow the employee to take the time away from work as paid holiday or to allow the employee to work from home, if possible.
Should such an employee be disciplined when he or she decides to self-isolate without medical advice?
Based upon the current threat level, an unwillingness to attend work could warrant disciplinary action but extreme caution should be exercised as an employee could bring a claim for compensation based upon a health and safety detriment. MOREOEVER, it would be very difficult to fairly dismiss an employee who has a genuine fear of contracting this potentially fatal virus, especially where he or she has qualifying service (2 years’ continuous service) to bring a claim for ordinary unfair dismissal. Furthermore, taking disciplinary action in these circumstances against an employee may result in a successful claim for constructive unfair dismissal if the employee resigns in the face of disciplinary action. There is also a health and safety type of unfair dismissal claim, where a short-serving employee (with less than 2 years’ continuous service) could argue that his or her dismissal was unfair as the refusal to attend work was because of a serious and imminent risk of danger to his or her health. Based upon the current level of the threat, this could be a winnable claim but would need to be assessed at the time of the intended dismissal. With the passage of time, this may become a very viable claim so any employer should only proceed with legal advice.
Absent as a result of sickness:
Where an employee has contracted the virus, an employee’s entitlement to normal pay during any period of sickness will depend, in part, on the terms of any sickness policy. In the absence of a contractual entitlement to full pay during a period of sickness, the employee will be entitled to statutory sick pay (SSP) and based upon the PM’s announcement, payment will have to be made from the 1st day of sickness.
Where an employer imposes self-isolation on the employee, is the employee entitled to normal pay?
Unless there is a suitably worded lay-off clause in the contract of employment, such an employee would be entitled to full pay. Employers should consider whether their employees are able to work from home if they have suitable business continuity systems in place that allow for agile working.
This is not legal advice; it is intended to provide information of general interest about current legal issues. If you would like specific legal advice then please contact Sunit Joshi e-mail [email protected] or call 0208 858 6971