Can an employer make an employee suspected of having coronavirus stay at home?

With the increase of coronavirus cases in the UK, more and more employers are finding themselves in a difficult position with employees. Ultimately, the core question at the moment is whether or not employers exclude an employee from work if they are suspected of having the coronavirus.

From an employment perspective, employers should proceed carefully. Where there is a clear identifiable risk that an employee has been exposed to the coronavirus (i.e. if an employee has travelled abroad to a country that has been listed on the government website as being high risk), then precautions may need to be taken. This is because the employer has a duty to protect the health and safety of other employees too. Ultimately, the employer may regard the risk of allowing the employee to remain at work as outweighing any employment law risk which could exist in excluding them.

What are the potential employment risks?

From a contractual point of view, the employer should consider whether they have an express right for the employee to stay at home. Usually, employment contracts don’t have this clause. If this is the case, then the next question to ask is then whether or not there is an expressed, or implied right for the employee to attend work in these circumstances. It would be unusual for the employer to have provided the employee with an express right to attend work regardless of circumstances, and there is no general implied term requiring an employer to provide work, provided it continues to pay the employee’s wages.

It is very unlikely to be a breach of the implied duties to require an employee to stay at home in these circumstances, assuming there are reasonable and non-discriminatory grounds for concern, and the matter is dealt with appropriately, proportionately and sensitively.

It is worth noting the importance of dealing with exclusion in this context sensitively and proportionately, as mentioned above. A failure to do so could amount to a breach of the implied duty of trust and confidence.

In relation to pay, if the employee is not actually incapable of working at the point they are excluded, then their absence is unlikely to be regarded as sickness absence, and they therefore are not entitled to Statutory Sick Pay. However, if they were diagnosed with coronavirus, or otherwise became too unwell to work, then the position would, of course, be different.

Where they are being excluded on health and safety grounds, because of a possible risk of infection, it is likely that the employee has the right to continue to receive full pay (in the absence of a contractual provision to the contrary).

For more information on the above, please contact Savanita at satwal@woodfines.co.uk

– Savanita Atwal 

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