UK retail recovery is being hampered by staff shortages. At a time when the sector is crying out for shop floor workers, the last thing retailers need is more employee absences. Unfortunately, there are a number of COVID-related obstacles that may see staff forced to self-isolate and leave employers scrambling around for cover.
Alexandra Farmer, Employment Law solicitor at Ellis Whittam, the experts behind Bira Legal, answers retailers’ burning questions regarding the ‘pingdemic’, pay and post-travel quarantine to help you navigate these tricky issues confidently and compliantly.
Can you ask staff to turn off the NHS COVID-19 app while they are working?
In general, this isn’t a good idea, particularly as the government has recently reiterated the importance of self-isolating when notified by the app or contacted by Test and Trace. However, the NHS says there are some situations where it may be appropriate to pause contact tracing.
Aside from going against current government advice, requiring the app to be turned off could result in reputational issues. It could lead to employee relations issues, i.e. employees feeling that the risk to their health and safety isn’t being appropriately managed.
If a member of staff tells you they’ve been in contact with someone with COVID, can you ask for proof that they have been “pinged” by the app, etc.?
Employers will be understandably concerned that some staff may take advantage of the pingdemic to take time off work.
Workers are required to inform their employer if they are contacted by NHS Test and Trace and told to self-isolate. A failure to do so can result in a £50 fine. Therefore, if they’ve been contacted this way, you should know about it.
There is no such legal requirement for an employee to inform their employer if they are pinged by the app. You can, however, ask for evidence of the requirement to self-isolate. Employees are able to request an isolation note online from the NHS.
If employees have been notified by Test and Trace to isolate, what’s the position in respect to pay? What about paying employees who aren’t sick but want to self-isolate as they believe they have been in contact with someone with COVID-19?
If an employee has been contacted by Test and Trace and informed that they must self-isolate, they will be entitled to statutory sick pay (SSP) subject to the normal eligibility criteria. SSP would be payable from day one of absence under the amended SSP Regulations.
An employee won’t be entitled to SSP if they choose to self-isolate without having been told to do so. The NHS guidance states: “If you think you’ve been in contact with someone who has COVID-19, but you do not have symptoms and have not been told to self-isolate, follow advice on how to avoid catching and spreading in COVID-19.”
If an employee insists that they should remain off work, you could authorise a period of unpaid leave or agree with them that they will take it as a holiday.
If an employee has been asked to isolate but wants to come to work, should we let them?
This depends on whether the requirement has come from Test and Trace or the app.
If an employee is required to self-isolate having been contacted by Test and Trace, it’s an offence for an employer to knowingly allow a person who is required to self-isolate to work anywhere other than where they are self-isolating (normally their home). Any breach could result in a Fixed Penalty notice and fine of between £1,000 to £10,000.
Allowing an employee to work knowing they’ve been pinged isn’t an offence but is arguably unwise. After all, if they are infectious, you will be putting people at risk and could also end up dealing with more than just the one absence if there’s an outbreak in your workplace.
This will become less problematic from 16 August, when it’s proposed to remove the requirement for self-isolation for fully-vaccinated individuals and those under 18 if they have been identified as a close contact.
We may need to hire temporary staff to help cover those who are self-isolating. What are the implications?
Ensure that contracts are fixed-term. They can be extended by agreement, and any extension should be confirmed in writing.
Alternatively, you could consider engaging casual workers who are truly ad-hoc. That way, you could offer work as and when needed without any continuous employment between the assignments.
We may also need to ask staff to cover shifts or work additional hours. What do we need to be aware of?
Consider the contract of employment. Do you have any flexibility to require an employee to work additional hours as needed? Wording will tend to say either “you may be offered overtime” or “you shall be required to work overtime in addition to your normal hours if instructed to do so on reasonable notice”.
My top tips in this scenario are:
- Be reasonable.
- Give advance notice – as much as possible.
- Seek volunteers where appropriate.
Be aware of the maximum 48-hour working week; if overtime would result in this being exceeded, check they have signed an opt-out agreement.
In addition to those self-isolating, we also have staff planning to go on holidays abroad, which we’re worried may result in further absences. Do employees need to isolate if the status of the destination changes while they are there?
Where the list changes during an employee’s holiday, I’d recommend a cooperative approach to arrangements. The employee may be unable to immediately return to work and could be required to self-isolate for a period.
This period will not trigger any entitlement to SSP. If the employee is unable to work from home, the period of leave would be unpaid. Alternatively, the employee may request to use holiday entitlement to cover the period for the financial benefit.
As always, if you’re unsure about the best course of action, it’s safest to seek specialist advice to avoid further disruption and legal risk.
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