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Natalie Ward, senior associate of law firm Thrings, advises how best to handle staff who refuse to take coronavirus guidelines seriously.
Q What are an employer’s rights on staff observance of self-isolation and other measures?
We have a key worker who is not observing the unnecessary travel rule, I do not know who they see or what they do when they go off farm, and I am concerned it will lead to coronavirus infection on farm.
There is a big issue with younger staff not taking this seriously, some of them live on site.
Can employers force them to self-isolate for 14 days, put them on statutory sick pay (SSP) – unless their contract entitles them to more – and can we dock wages or take other measures?
In these unprecedented times, employers face a difficult balancing act between continuing normal business activities and safeguarding employees.
Current government guidance states that where an individual does not present Covid-19 symptoms, people need to practise social distancing and, where possible, stay at home.
There are no “employer’s rights” in relation to ensuring staff observe the Government guidelines.
However, if police believe an individual has broken self-isolation rules – such as meeting with others outside their household, or if an individual refuses to follow instructions – they may issue them with a fixed penalty notice of £60.
Furthermore, a business operating in contravention of the social distancing measures – such as ensuring a 2m distance for working – may also be committing an offence.
An employer cannot force an employee to self-isolate or to take sick leave and claim SSP, unless they are genuinely showing signs of illness or someone they share accommodation with is showing symptoms of Covid-19.
To do otherwise may breach the trust and confidence of that employee (an implied term of their employment), as well as rendering you unable to reclaim SSP because some or all of the eligibility criteria have not been met.
We note your concern that some or all of your staff live on site and the risk of bringing the virus onto the farm is heightened as a result.
Our recommendation is to write to all staff reminding them of their obligations regarding self-isolating and social distancing and the associated penalties; and setting out your expectations that they will adhere to this strictly.
Duty of care
You should highlight their personal duty under the Health and Safety at Work Act – to take care of their own health and safety, as well as that of others who may be affected by their actions at work; and of the specific risks to the business and their colleagues as a result of their failure to adhere to government guidelines.
You could also state that you take breaches of these obligations extremely seriously, and that those who fail to comply will be at risk of disciplinary action.
This will put you in the best possible position to commence a disciplinary investigation if you believe an employee is refusing to self-isolate or follow the government’s guidance on social distancing, and is, thereby putting themselves and/or others at risk.
Suspension may be an option while a disciplinary investigation is underway, where an individual who has been advised to self-isolate refuses to do so, but it should not be a knee-jerk reaction, and is not generally unpaid.
While suspending an individual would prevent them from attending work, it may not achieve your objective in relation to them bringing the virus onto the farm.
You would not be able to prevent them from leaving the farm for permissible reasons, such as to obtain medical or food supplies and for daily exercise.
Specific legal advice should be sought beforehand in order to prevent any possible unfair dismissal or breach of contract claims arising as a result of suspension.
In the meantime, it might be a good idea to have a quiet word with the individual who you suspect has been flouting the guidelines, and calmly express your genuine concern.
You will want to have some evidence of your suspicions that they are travelling unnecessarily, but bear in mind that even during these difficult times, general employment law principles apply, and covert monitoring of employees remains a controversial and often unlawful practice.
This is a rapidly changing area, and while correct at the time of writing, circumstances surrounding the coronavirus lockdown may have changed.
We recommended you continue to monitor updates to government guidance.
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