What to do if you have employees reluctant or refusing to self-isolate

These are unprecedented times, and HR professionals and managers alike are racing to keep up with Government guidance and arrangements on self-isolation, quarantine and pay entitlements for affected employees.

As well as constantly changing guidance and the fact that everything happening in a hurry means detailed information is hard to come by, many businesses are struggling, meaning that generous pay arrangements for those not working may be beyond what is financially viable.

It’s important for society as a whole and also for the benefit of all your staff, that any team member who fits into a category the Government have advised to self-isolate actually do so. The new emergency legislation the Government have introduced means that in those circumstances, even when they are physically well, people will be entitled to statutory sick pay, and soon this will be from day one.

But the rate of SSP isn’t very high, and where people feel perfectly well in themselves, and able to work, taking time off ‘for the greater good’ and having their pay cut as a result is a hardship. Many are already facing the possibility of having their hours reduced, being laid off or even made redundant.

There is a balance to be struck and it’s important for each employer to determine what its approach to self-isolation will be, and to apply that consistently. Here are some things to bear in mind when deciding what to do;

Drive the right behaviour

When developing a position on anything to do with how you manage staff, it’s always sensible to start from the point of view of what behaviour you are seeking to encourage/discourage. Whether you can send people home and sanction them, or cut their pay is one thing, and this may be appropriate.

But what you want to achieve is a situation where no one feels the need to come into work when they should be self-isolating, as even turning up and being sent home represents a risk to those they come into contact with.

Therefore if you are concerned about the financial welfare of staff who may need to isolate, and are financially able to temporarily increase sick pay entitlements for those who need to do so, this may be sensible. If you do that, it is perfectly possible to make a temporary variation to contractual entitlements without being bound to continue it once the crisis is over.

However you also want to ensure that essential staff who don’t strictly need to self-isolate take advantage of the possibility of extra paid leave in circumstances where you’re having to relax sickness certification requirements as well, so if you do decide to temporarily enhance pay for self-isolation, it’s worth making clear that this only applies where someone fits the Government guidance for self-isolation, and that further details and/or evidence may be sought in order to establish that this applies.

Legal position

The legislation broadening SSP to those in self-isolation following Government guidelines effectively means that those who fit into those categories should be considered as unfit to work. This means you should treat it as sick leave, and pay at least SSP. If you offer enhanced sick pay, it would be advisable to follow that scheme and pay whatever enhancements would be due if the person was actually ill.

(There is a small risk that paying only SSP in these circumstances may be challenged, and the possibility of legal challenges to decisions made during the coronavirus crisis will undoubtedly become clearer over the coming months. All we can do is interpret the legislation as we have it, as the situation doesn’t come complete with plenty of case law! However, if it ever becomes established that you should have paid more, that can be addressed at a later date).

If you decide that for preventative measures you want your workforce to go home and self-isolate even where they don’t meet the current Government criteria, you can do so but you would need to pay them as normal.

What do to if someone turns up or refuses to leave?

If someone turns up to work who fits into the Government categories for self-isolation (these are changing regularly so do make sure you are aware of what these are), you can, and should, send them home. Treat them in the same way as you would if someone who was ill and clearly unfit to do their job showed up at work. In those circumstances you would send them home and you would treat their absence as being sick leave (including applying sick pay), and would be reasonable to do so, as you have a duty of care.

Once you are clear that even when people turn up and are sent home it will still be sick pay, it should reduce the chances of people turning up hoping to get full pay by being sent home.

Disciplinary action

If someone refuses to go home (or refuses to self-isolate if you know they should be doing so), this would constitute a failure to follow a reasonable management instruction, so ultimately you could consider disciplinary action if necessary. Again it’s about driving the right behaviour, and if you feel that, for your particular workforce, the threat of possible disciplinary action is the only way to prevent an unacceptable risk to the health of other staff and to the viability of the business, that is something to consider.

As with any disciplinary action it should be a last resort, so it would be sensible to make clear expectations, clarify pay entitlements, and appeal to people’s sense of doing what’s right, as well as laying out the possible implications of failure to self-isolate before threatening or taking disciplinary action, then if you find people still not complying, disciplinary action can follow.

Steps to follow:

Once you’ve made a decision about what pay arrangements you want to apply to those who are self-isolating in response to Government guidance, you should clearly communicate to staff the following:

  • That you expect anyone who is in a category advised by the Government to self-isolate to do so;
  • That anyone who knows they should be self-isolating and turns up to work will be sent home;
  • That absence due to self-isolation for anyone in a category advised to do so will constitute sick leave, regardless of whether they turn up and are sent home or not; and
  • What pay arrangements will apply in the event of self-isolation, subject to review if you are choosing to enhance on a temporary basis.

 

If you’d like further advice on self-isolation arrangements, the impact for your business and how to manage it effectively, do get in touch.