29 Oct Managing Staff Absence | Should an employee get paid for staying at home over Covid-19 fears?
Managing staff absence can be a challenge, this has heightened since the Covid-19 pandemic. With fears of returning to work rising because of concerns relating to travel and health and safety in the workplace. We’ve noticed an increase in employers wondering if they are required to pay their employees who refuse to come into work because they are scared of catching coronavirus if they come into work. This is where we come in, as experienced HR professionals we’ve outlined what you should do and what your options are when it comes to managing staff absence.
So, should you pay the employee?
This is a challenging question because we have no case law to determine the answer to this argument and the Supreme Court aren’t likely to do this for several years. We have weighed up the arguments for and against paying your employee and have put the rival arguments below:
An employer is only required to pay an employee who is ready, willing and able to work therefore if an employee isn’t willing to travel to work then the employee isn’t entitled to be paid. The counter argument for paying the employee references a piece of legislation which states that the employee cannot suffer a detriment for exercising a statutory right. This means that not paying your employee is seen as a detriment and not paying an employee for staying away from the workplace’ could be risky.
What steps can employers do to manage staff absence due to Covid-19?
We would first advise you to approach the situation calmly and rationally by inviting the employee to discuss their workplace safety concerns. Once these concerns have been raised, employers should explain the steps that have been put in place to address the employees’ concerns. In addition to this, discuss any alternative duties the employee could potentially do from home.
If the above approach doesn’t work we have 3 other options.
Option 1: Dismiss the employee.
This is a high-risk option and one not one we would advise! Dismissal for refusing to come into work because of a reasonable belief in serious, imminent danger to health is automatically unfair and the compensatory awards aren’t subject to the normal cap of one year’s earnings or £88,519. Also, if the employee can show their refusal to work amounts to a public interest disclosure, they might be able to claim interim relief.
Option 2: Allow them to stay at home on full pay.
An unrealistic option especially in the current financial climate. However, this is the safest option seeing as you cannot get sued. With this in mind you’ll have one happy employee but a string of other employees saying they’re staying at home on full pay because they believe there is a serious, imminent danger to health if they go to work.
Option 3: Allow employees to stay at home unpaid.
Nobody knows what the Supreme Court is going to decide in the future, as to whether employees are entitled to pay when exercising their s44 right to stay at home, but there is a possibility that not paying them (while allowing them to stay at home) could be deemed to a breach of contract.
If the Supreme Court decides they were entitled to pay, then the employee will be able to claim for arrears of all the wages they missed out on. They could also potentially have a constructive dismissal claim, should they choose to resign, and of course the constructive dismissal will be automatically unfair under s100 and so compensation will be unlimited – although the duty to mitigate will engage here.
Many employees will come back to work as soon as they know they won’t be getting paid and other employees will accept they aren’t getting paid and never sue. However, we have to consider the employees that will sue. If an employee goes to sue the business for constructive dismissal or unlawful deductions or s44 detriment, employers need to be prepared that the Supreme Court could rule that employers have to back pay the employee.
On balance, this third option is probably the best of a bad bunch! If this raises questions surrounding managing staff absence, as always please feel free to get in touch with the team on 01386 751740 or email firstname.lastname@example.org.