Coronavirus

Coronavirus Q and A: Can my employer make me come to work?

Many businesses have closed to halt the spread of coronavirus

Many readers have contacted The Irish News asking if their employer can make them come to work during the coronavirus outbreak. 

We asked a leading lawyer about one such query.

Question: Can my employer make me come to work? I work in the hospitality sector and have been asked to come into work, check emails and man phones during the shutdown period.

Answer from Sarah Cochrane, senior associate in Carson McDowell’s employment law team

The current Government and Public Health Agency guidance is very clear that people should only go outside to attend work where work “absolutely cannot be done from home”. Full details can be found at https://www.gov.uk/coronavirus

In this particular scenario, the employee is being asked to attend work to check emails and man phones.

READ MORE: Coronavirus Q and A: If I'm furloughed, what happens?

 

The employer should give serious thought to whether the emails and phones can be monitored from home as requiring an employee to attend work goes against the current guidance where it would be reasonable to let the employee to work from home, could amount to breach of trust and confidence in the employment relationship (i.e. breach of contract) by the employer.

Where the work “absolutely cannot be done from home”, the employer should consider the employee’s individual circumstances and in particular the reasons being given by the employee for non-attendance. We will consider the potential scenarios in turn:

Sarah Cochrane, senior associate in Carson McDowell’s employment law team

1. The employee is ill / displaying symptoms of COVID-19

Clearly in these circumstances, the employee should not be required to attend work.

Again, requiring the employee to attend work in these circumstances may give rise to a breach of contract claim.

The employee’s pay entitlements during this period will depend upon the company sick pay policy but at the very least, the employee should receive statutory sick pay from day one.

Where the employer has a company sick pay policy in place, the conditions of the policy should be reviewed and if the employee meets those conditions, they should be paid in accordance with the terms of the policy.  

2. The employee is self-isolating pursuant to Government/ Public Health Agency (PHA) advice but is not displaying any symptoms

The Government / PHA has set out clear guidelines in relation to when individuals should shield / self-isolate.

Again, if the guidance regarding shielding and self-isolation applies to the employee, then they should not be required to attend work for the period of isolation.

If the employee is not able to work from home, then the employee should receive statutory sick pay from day one. Where the employer operates an enhanced company sick pay scheme (and subject to the terms of the scheme) there is unlikely to be an obligation on the employer to pay enhanced sick pay however some employers are exercising discretion on these circumstances and are paying enhanced pay.

3. The employee is refusing to attend work due to fears about coronavirus however they do not fall into category 1 or 2 above

 As outlined above, where an employee can work from home, this should be facilitated and may well resolve the issue. 

However, if the role cannot be performed from home and it would not be contrary to Government or Public Health Agency guidance for the employee to attend work, then the employer may seek to treat the refusal to attend work as a conduct issue, in particular unauthorised absence or failure to follow a reasonable management instruction.

Given the unprecedented times that we are in, employers should make all reasonable efforts to resolve the issue before considering disciplinary action.

Do you have a question about how the coronavirus shutdown will affect you? Email journalist Claire Simpson on c.simpson@Irishnews.com or send her a Twitter message @ClaireMSimpson

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Coronavirus