Latest: Coronavirus Advice for Employers

Companies across the UK are putting in place contingency plans, many of which will require employees to work from home. Some will be familiar with and able to work from home with remote access to IT facilities with little or no disruption to their day. Thought however needs to be given to other practical considerations such as ensuring that measures are taken to ensure GDPR compliance where staff are processing confidential client data away from the normal workplace environment.

You will need to take appropriate technical and organisational measures against unauthorised or unlawful processing of data and accidental loss, destruction or damage to data. Questions to ask yourself include:

• Who will have access to the employee’s computer and personal data stored on it? Specific security measures should be in place to ensure that members of the household do not have access to personal data held on the computer.
• Will the employee’s home be left unattended for regular periods? If so, is it properly secured?
• Does the remote working system permit the employee to encrypt and/or password-protect information?
• Where paper files are kept, are there suitable systems for storage?
• How is information moved between home and office, both in terms of physical transfer by post or courier and data transfer electronically?
• Are employees given guidance about what data is appropriate to transfer?
• Are there rules on retention of documents, proper disposal (for example, shredding and not just putting in the paper recycling bin at home) of paper-based records and storage and deletion of computerised personal data?
• What measures will need to be taken against accidental loss, destruction or damage?

An employer is responsible for an employee’s welfare, health and safety, “so far as is reasonably practicable”. Employers must conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees, including homeworkers, to identify hazards and assess the degree of risk. You will therefore need to consider these obligations in the context of any employees who work from home to decide what measures they need to put in place. This will include:

• The Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306) cover the use of work equipment in the home. Equipment supplied by the employer must be suitable for its purpose, maintained in good working order and inspected regularly.
• The use of electrical equipment at work is covered by a variety of EU and UK legislation including the Electricity at Work Regulations 1989 (SI 1989/635). Briefly, an employer is responsible for the equipment it supplies. However the homeworker’s domestic supply, including electrical sockets, remains their responsibility and they should be reminded of this.

Employees who are working from home are entitled to receive their normal pay. Similarly however, employees who are prevented from attending work but cannot properly fulfil their duties from home are also entitled to receive their normal pay as they are fit and able to work but simply unable to do so for reasons beyond their control.

We already know that the Government has confirmed this week that Statutory Sick Pay (SSP) will be extended to all of those who wish to self-isolate, even if they do not have any symptoms. SSP will be available to these employees from day one of quarantine. (See below)

If an employee who is already working from home is diagnosed, employers should speak to them to ascertain whether they are asymptomatic or if they are too unwell to work. If an employee is asymptomatic and has elected to work from home, they are entitled to receive their normal salary. However, where an employee has been signed as unfit for work by their GP or has self-certified their sickness, they should be managed under their employer’s usual sickness absence procedures and will be entitled to receive SSP or contractual sick pay where applicable.

As schools are closed across Europe in an attempt to contain the spread of Coronavirus the chance of the UK following suit is growing. So what does this mean for employers whose employees are faced with childcare issues?

The law recognises that there may be occasions where employees will need to take time off work to deal with unexpected events involving a dependant. Employees who are unable to attend work due to childcare commitments caused by school closures should therefore exercise their right to take unpaid, emergency dependent leave to care for their children.

In reality, if school closures become widespread, many employees may end up working from home whilst their children are at home. Employers should adopt a flexible approach here and continue to pay these employees as normal. However, employees should be aware that they are expected to fulfil their duties as normal and do what is necessary to get this done.

Finally, Regulations providing for those who self-isolate in accordance with public health guidance on coronavirus to be deemed incapable of work, for the purpose of claiming statutory sick pay, have been made and brought into force immediately (13 March 2020).

The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 amend Reg 2 of the Statutory Sick Pay (General) Regulations 1982, which defines ‘persons deemed incapable of work’ for the purpose of sick pay entitlement. The definition now includes a person who is ‘isolating himself [or herself] from other people in such a manner as to prevent infection or contamination with coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales and effective on 12th March 2020; and [who] by reason of that isolation is unable to work’.

These Regulations do not, however, affect S.155 of the Social Security Contributions and Benefits Act 1992, which provides that statutory sick pay is not payable for the first three qualifying days in any period of incapacity. The Government has announced that it will bring forward emergency legislation to provide that sick pay will be available from the first day of sickness absence but that legislation has not yet been published.