On 18th March 2020, the Civil Contingencies Authority enacted the Emergency Powers (Coronavirus) (Bailiwick of Guernsey) Regulations, 2020 (the Regulations). The Regulations contain wide-ranging powers in relation to islanders, and were put in place as a reaction to the situation faced by the Bailiwick of Guernsey brought about by the spread of Covid-19.
The main result of the Regulations is the empowerment of the Medical Officer of Health to authorise that a person can be detained if they meet certain requirements. Currently, these requirements are that the person is (or is suspected to be) suffering from Covid-19, or that the person has arrived in the Bailiwick from an infected area within the preceding 14 days. As has been widely reported, it is a requirement for anyone entering the Bailiwick to self-isolate for a period of 14 days. The Medical Officer of Health now has powers including requiring such a person to submit to medical examination, be removed to a hospital (or other suitable establishment) and be detained there, to be kept in isolation, and to wear protective clothing.
Crucially for some businesses, the Medical Officer of Health also has the power under the Regulations to require that a person abstains from working or trading.
As we all know, the Covid-19 situation is already having a major impact on businesses and their staff, both in relation to actions taken under official Regulations and specific advice from the States of Guernsey. Below, some scenarios which have implications for employers and employees are examined.
Employees working from home
Under the current guidelines, some people have been classed as “key workers”, meaning they are able to continue working in their normal workplace so long as the 2m social distancing guidelines are kept to.
This is not possible in every office, and some employers might not feel comfortable allowing employees to work at their normal workplace.
If an employer insists an employee come in, they might be at risk of claims against them if that employee either becomes infected or infects other people.
If a contract is drafted widely enough, it might be than an employer can insist on employees working from home. Whilst the circumstances surrounding a pandemic are very unusual, it is also likely that by insisting on employees working from home an employer is acting reasonably in terms of its duty of care to protect employees.
In general, an employee cannot insist on working from home in light of an unspecified risk; it is likely that someone in the workplace or someone who lives with the employee (or indeed the employee themselves) would need to have tested positive for Covid-19. However, employers should carefully consider States of Guernsey guidelines on self-isolating and social distancing before insisting employees work from the office, and always be mindful of their duty of care towards employees.
Reduction in salary
Some businesses are finding that their cash flow has been dramatically reduced. This can lead to hard choices of either reducing salary or staff in order to keep a business viable.
Consent is needed from employees in order to vary their contracts, which includes reducing pay. Any decision to reduce salary should be made carefully in consultation with employees, and consent should be sought for the change. This is an action no employer would wish to take and advice should be sought to ensure it is done correctly and within the law.
The States of Guernsey provides some sickness benefits to those who are unable to work, but in terms of what money a person is entitled to receive from their employer, the position is still that employees are only entitled to the sick pay in their contracts.
A difficult area for both employers and employees is where an employee is self-isolating on States of Guernsey advice, but has not actually tested positive for Covid-19. In general, if an employee is ready, willing and able to work they are entitled to be paid as per their contract. An employer would be expected to act reasonably and fairly in these situations, which can include asking employees to continue working from home if possible during self-isolation. Employees might also appeal to the better nature of their employer in such uncertain times.
If an employee has had restrictions placed on them by the Regulations, an employer will need to carefully consider how best to treat this absence. This can give rise to issues such as enforced absence, which may trigger the employer’s sickness absence policies. In principle, there is no reason to treat a Covid-19 sickness absence as being different to any other, but employers should consider if alternative methods such as working from home can be used, and whether they are acting reasonably if they penalise an employee who is being required to stay at home by the Regulations issued by the States of Guernsey.
Unfortunately, in some situations there will be a need to make employees redundant. In these situations employers should ensure that there is full consultation with employees, and alternative work is offered if there is any available. The Covid-19 situation does not change the legal principles surrounding redundancy, and employees will still be able to bring claims for unfair dismissal if an employer does not act fairly.
The States of Guernsey has announced that it will pay 80% of minimum wage for employees in an effort to help businesses who are struggling to continue to employ their staff. It is hoped that this will allow employers to avoid redundancies caused by Covid-19, however if a redundancy situation arises it is important for employers to seek advice to ensure they act appropriately and in accordance with the law.
The above are just some of the issues which employers and employees might be faced with in what are unprecedented times. Ferbrache & Farrell recognises each business and each employee is different, and is ready to provide advice on the challenges ahead.