Coronavirus (Covid-19): Practical Points For UK Employers

The World Health Organisation ("WHO") has declared the new coronavirus as a global emergency and reported cases have continued to rise. It is only the sixth such declaration made by the WHO.

Employers are now having to respond rapidly and plan for a potential pandemic. Even if the spread is more localised, there are a number of steps which employees should be taking and a number of questions that employers are likely to want to consider when formulating plans for dealing with the situation.

Key points covered in this summary include:

The legal framework: UK employer obligations. Sources of specific advice for employers. Next steps for employers: Review; Communicate; Update and pay particular attention to employee travel arrangements. Common questions. Disciplinary action and dismissal guidance. The legal framework

In the UK, employers are subject to a framework of obligations, partly contained in common law and partly through statute and regulation. This is further complicated by obligations deriving from Europe.

In short however the key obligations are:

The Health and Safety at Work Act 1974 (the "Act"). The common law (which implies a duty to take reasonable care of employees). European Council Directive 89/391/EEC (the Framework Directive) which includes the basic duty to ensure safety and health of workers (articles 5 and 6). The Act and The Management of Health and Safety at Work Regulations 1999 (the "Regulations") set out statutory obligations that employers owe to employees. The Act sets out general duties and the Regulations are more explicit in respect of what employers are required to do to manage health and safety under the Act. Under the Regulations employers are required to:

carry out an assessment of risk to employees' health; have in place a clear emergency procedures policy should there be an event that results in 'serious and imminent danger to persons at work'; communicate relevant information about the emergency procedures to all employees; and provide appropriate training to all employees to ensure that the emergency procedures have been understood. Most employers will already have business continuity plans in place but it is sensible to review these to consider whether they deal with a situation such as an infectious disease pandemic. If not, then they should be amended quickly and re-communicated to employees.

These obligations are very important to employers looking to formulate their response to the threat of customers, staff, visitors to premises etc, being infected with the coronavirus and so spreading the virus into the employer's workforce. An employer is required to undertake risk assessments against identified risks and it is clear that protection against the risk of infection spreading at work requires a risk assessment. Additionally an employer is obliged to stay abreast of health and safety developments, which is key given the rapidly developing situation and consequently the advice being given by public authorities.

There are a number of more specific legal obligations which employers must not overlook.

For example, a global pandemic is likely to result in the need for employers to collect, hold and disclose medical information about employees. As a result, the requirements of the General Data Protection Regulation will be particularly relevant. Information about employees' health will constitute 'sensitive personal data' and therefore such information will have to be processed in accordance with GDPR. However employers can process medical data relating to a data subject where it is necessary for the employer to comply with its legal obligations in relation to health and safety.

There are enhanced health and safety duties on employers of pregnant women and disabled employees. This is relevant since pregnant women are thought to be more at risk from the coronavirus as are some disabled staff e.g. asthmatics and diabetics. In particular pregnant workers are entitled to a work assessment under Regulation 16 of the Regulations 1999 if there is a potential risk to health and safety of mother or baby. Clearly this would apply to the risk of infection from the coronavirus.

It is important that any review of arrangements and new policies, initiatives etc, are properly recorded, since policies, training and communications need to be recorded for health and safety records (Regulation 3 Health and Safety (Consultation with Employees) Regulations 1996).

It should not be forgotten that under the Act, all employees have a general duty to take reasonable care to ensure that they do not endanger themselves or anyone who may be affected by their actions at work. Employers should remind their employees of this and warn them that their failure to adhere to an emergency procedure, which results in other employees suffering, could result in disciplinary action or even prosecution under the Act.

Sources of specific advice for the employer

There are a number of highly important sources of advice for employers. In our view the duty of health and safety requires employers to stay on top of the latest information about the spread of coronavirus in areas of the world relevant to the employer and its business. This could include advice relating to foreign travellers from associated companies and customers visiting the UK, foreign travel by UK employees to other parts of the world or something as simple as considering areas of high risk of...