Christine: So let's have a look then at our first topic, the office etiquette during flu season. So COVID-19 is on the rise, flu season is upon us, and there are numerous bugs during the rounds in schools across the country. So how can you keep a healthy workforce without ruffling legal feathers?
So I suppose during COVID, one of the big questions that we dealt with a couple of times in this webinar, Seamus, was around masks. We were starting to see people refusing to wear masks, other people insisting that other people wear masks. Out and about now in shops and stuff, you do see people starting to wear them again at this time of year. So can I ask my workforce to start wearing masks if they have the sniffles?
Seamus: Well, I think it all goes back to the sort of famous approach of you need a reasonable approach. People say, "Well, what is a reasonable approach in relation to it?" But look, I see it in my own office here that there definitely has been . . . in and around December time, there have been those colleagues that have been coming into work coughing, spluttering, not well, but coming in. And it does make everybody else in the office uneasy.
And we're coming off the back of the pandemic, and if people are carers or live with elderly folk, maybe live with people with underlying conditions and things like that, it can be a real source of stress and pressure for those individuals.
But at the same time, we have the sort of government view, which has been clear. I mean, from 14 October 2022, the legal restrictions around COVID-19 have been brought to an end in Northern Ireland. And that's including any sort of statutory requirement that we all thought that we had to do, that we actually turned out that we didn't have to do, of wearing a facemask.
But I think that the majority of people do take a sensible approach in relation to these. And certainly, I've noticed as well that . . . you notice during the winter here that the people are wearing facemasks more.
I think it's very much dependent upon the type of working environment that you're in, and I think that that absolutely has to have an impact upon any decision by an employer to ask someone to wear a facemask.
But we have come away from that. And I think the general position has been that if there is someone that is coming into work unwell, the first question that you ask is, "Have you taken a COVID test?" And the usual response is, "Yes, of course I have, and I'm fine".
But it's even at the point now where we know that there are very bad flus out there. I noticed there that the media were reporting that in relation to our health crisis at the minute, the majority of beds that are being taken up are through flus more so than COVID. So you can't ignore the fact that the flu is also a . . . it's problematic. It spreads. It's contagious. And there could be others in the office that are concerned about that.
I think when it comes down to it, the reality of the situation is that the employer will have to provide a safe working environment for their staff. And in order to get to the place where you're satisfied that there's a safe working environment, you need to look at risk assessments.
We're all very sort of conscious at the minute. We're in the height of flu season. I think recently they said that the numbers are still continuing to increase, and they will do maybe for the next week or two before it starts to subside. We have the issues around COVID. And then we're really conscious of all the pressures that we have in the NHS. We've these on-going strikes, and we have our medical staff striking and ambulance staff and things like that.
Really, everybody wants to avoid getting sick because we're all worried about the fact that if we do get sick, is there a proper way for us to be looked after?
When it comes down to it, I think it's really important that any employer does look at a risk assessment in relation to sickness. Really important that you do have a policy and procedure in place as to how that is going to be dealt with.
You could absolutely face problems if an individual comes into work unwell and they're sent home, yet there's somebody else in the office that is unwell and they're not sent home. And that might be due to work priorities rather than personality issues, but the consistency point is really important, and you don't want a situation arising where one employee is feeling that they're being treated differently to another employee.
So I think the approach is that there isn't a legal requirement any longer in relation to wearing a facemask or a face covering. It's ultimately for the employer to decide on whether they want to mandate the wearing of facemasks by employees and encourage their use, whether or not they want to remain silent on the matter. But I think it has to come back to looking at the risk and what the assessment is.
And the approach will definitely differ from business to business, and it will depend on various factors, whether you're customer-facing, whether you are working in a tight-knit manner, whether you're working closely with other individuals, or whether it is the fact that your office or your place of work is working hybridly and everybody is spaced out and the risk is lessened from that point of view.
But it very much, again, just depends on the working environment. And I think also that we have to bear in mind that the employer does have a legal requirement to provide safe workplace, and there's a general duty of care to not only your employees, but your customers or clients that might be attending your place of work also.
So I think if ultimately the employer does think that it's a reasonable step that facemasks or coverings should be brought back in, you're going back to your risk assessment and you're justifying your position on that basis.
The other issue is that if you have somebody coming into work with the sniffles and you say, "Well, look, I'm going to require you to wear a face covering for the next week, or until this clears up", that could be a very difficult position for that individual employee. They could feel that they are being marked out, that they're being individualised. And it's very apparent because you've got a facemask on. And there are risks of discrimination.
There is a risk of discrimination, and it's back to those sorts of things, Christine, that we would've talked about previously. If somebody is exempt from wearing a facemask or if they have other conditions or a legitimate reason for not wearing a facemask as well, if they've respiratory disorders and things like that.
And it's getting back into that whole threshold again of "Are we across the line? Is it reasonable for me to ask this question? Do they have to provide me with the information about their medical conditions?" It's back to all that issue.
I suppose the difficulty that we have is that the government guidance is there's no requirement and there's no strict advice. Now, certainly, you do see in media that there is advice that's saying if you're in a crowded space, wear a facemask. If you are feeling unwell or you're leaving the house and going out and you're not well, wear a facemask and things like that. But again, it's just in that employment context and in that environment.
And I suppose the other side of it as well is that employers . . . Culturally, I think we have . . . I think you mentioned it just at the start of the webinar there. There has been a move away from this fear of "I can't not go into work because I'm not feeling well. I have to show that I'm dedicated and that I'm a good and loyal employee".
I think the pandemic has certainly assisted in that. We've moved away from that ability and we're now more focussed on health and wellbeing and that sort of sensible approach of, "Look, if you're not well, don't feel the need that you have to come in".
I accept that it doesn't happen in every single job because some jobs you have to actually be there to do the physical work, but we do have the ability and employers should be flexible in not sense of saying, "Well, look, if you're unwell, but you still feel that you're fit to work, how about working from home for the next four or five days?" and those sort of sensible approaches that could be taken.
I think in a sort of . . . I don't want to use the word post-COVID world because we know that it's still very much here, but where the load is lightened in relation to COVID, if I put it that way, I think it is more difficult for an employer to enforce and justify the wearing of a facemask, particularly for an individual.
But there are, of course, other industries where you would wear a facemask as a matter of course. Maybe if you're working with food preparation and in healthcare settings and things like that anyway.
But I think where the assessment needs to be made is if somebody comes into work, they're unwell, and there's a risk that they're contagious with flu or those sorts of bad respiratory disorders, you could take a sensible approach. And as long as that's openly explained to the employee to say, "Look, listen, it's not that we don't want you here because you're sick, but we have a business to protect. And in that, what we don't want is you coming in and infecting other people as well and putting the business at risk". This is the more sensible approach to take in order to deal with it.
Christine: Yeah, I was going to say . . . It's kind of coming to mind, "Should guidance be issued?" So our recommendation for how you should behave should you have coughs and colds is, "Work from home if you can. That would be appreciated". Would that be kind of the more softly-softly approach to take, I suppose?
Seamus: Yeah, I think so. Look, even I have noticed myself that we've had individuals that have had very bad flus, have had COVID and said that the flu that they've had is much worse, and that either they're not well enough to come into work or they want the ability just to be able to work from home.
But I think that if there is some form of written procedure in relation to that, where it's very clear, I think that you can't go wrong with that.
Obviously, you always need to have a little bit of flexibility with it. But I think where it's written down and it's clear . . . Again, it always comes back to good communication, providing an understanding as to why those decisions have been arrived at, is the best way in order to proceed.
And it's backed as well. I mean, the tips in relation to this and the sort of walkaway points are to keep up your hygiene processes at work. Make sure there's hand sanitiser. Make sure people are washing their hands. Have your signs up, even if you've decided just to put them up for the winter until the clocks change again at the end of March or something like that. Have your signage up in your bathrooms about hand-washing, and try to maintain that social distancing aspect.
I think, for most offices, that is a very realistic thing to do because of the fact that they're hybrid working. When it comes to maybe if you're working in a factory or manufacturing, it becomes more difficult to do that. And rather than it being a whole reintroduction of pandemic-style of working, it's an easier way to try to work it across that way.
But again, just be clear with employees. Educate them about what the position is in relation to how if they're feeling unwell or they're sick at work, what those next steps are and what they would look like.
Christine: Yeah. Brilliant. We've got some questions coming in, so please do keep dropping them into the question box, everybody. So really, the question we have is around somebody coming into work not looking very well. So we've got a couple of different questions coming out of that scenario.
So I suppose if somebody is looking like death warmed up on the shop floor or whatever, and you don't think that they're able to function properly, you would be able to go to them and say, "Listen, I think you should probably go home for a rest".
Now, I suppose, can you talk us through the best process for that? And then I've got a few follow-ups just about pay and stuff as well, if we could break it down like that.
Seamus: Absolutely, any employee that attends for work has to be fit to work and to do their job. And where they're clearly struggling or where there is an issue with maybe other colleagues complaining or even customers complaining . . . There should always be that open line of communication to have that discussion with a member of staff. Even from a welfare point, it's important that that discussion does take place.
It's back to some of the stuff that we did see during COVID as well, where somebody just simply feels they can't afford not to be at work, where they need to work in order to earn their money. And you will always get those employees in every workplace that will always come to work even if they're clearly unwell. You'll always get those ones that are very dedicated. But it's about explaining, I think, that that's not the best route.
Where somebody clearly is unwell and unfit to work, you're entitled to say that you need to send them home, or that they're not going to be able to stay for the day.
So there has to be that reservation. And again, that's an assessment that the employer needs to do. Like every other bit of good advice, it's important that if there are those decisions being made, there's some form of note that is taken, or where the employee is sent home, that that's followed up in writing if it's likely that they're going to be off for a period of time.
And it's similar, Christine, to what you would see sometimes where there is maybe an employee that's having that not-so-visible elements of being unwell and maybe mental health issues. I can think of lots of times where I've had to provide advices to clients of mine where managers or HR or owners have phoned and said, "Look, this person is clearly not well, and there may be a risk to themselves or a risk to others here in the workplace. What can I do in relation to the illness?"
There's always that sensitivity around dealing with it appropriately. Those decisions are sometimes hard to make, but they're important decisions to be made.
So similarly, whenever you have somebody coming into work with those visible signs, whether they're physically not looking at all well, it's important that those discussions do take place, but that you do it with an element of sensitivity and always with that aspect of explaining to them the difficulties that their presence is going to pose for the business.
Christine: And so they've made it to lunchtime, and you've asked them to go home. Do they get paid for that day? Do they get paid to lunchtime? What's the scenario there?
Seamus: Well, again, really important that you have a clear policy on sick leave absence and payment that will set out the answer to those questions, and also that the contract of employment is clear about that. So you're falling back onto your written documents whenever you're in these scenarios, because they're difficult and they can be tricky.
But the general position is where you attend work and where you've worked, you're entitled to receive payment in relation to the work that you've done. So if you have an employee that comes in and they make it to lunchtime, the reality is they're entitled to their payment up to the point where they're unfit or unable to do any further work.
There isn't anything in the legislation that says that you have to pay them for the remainder of the day. Or even if they came in for an hour in the morning and you're in a position whereby you're having to send them home, it can be difficult in some jobs to work out what the entitlement would be there.
But usually, the employer will take a discretionary approach, and where they have come into work, usually what I would see is the employer will say, "Look, we'll pay them for that day". Or if they've made it to a half-day, they will pay them for the half-day that they worked.
But to be clear, where the employee isn't fit to work any longer and they have to go home, there's no entitlement for them for payment in legislation or in law for payment for the remainder of that day. But again, you definitely need to go back and check your policy and your contract in case that it says something different in relation to it.
So I think definitely the policy needs to set out clearly what the rules are and, again, that there are no surprises for the employee. I think there's always an element that you don't want to ruffle feathers among your staff in relation to motivation.
It is at the discretion there for the employer to make the payment if the person has attended to work and they've done so in good faith. They've come into work for the day and they just haven't been able to do it. But where they're sent home, the strict position is that if they're unfit to work, they don't need to be paid in relation to that.
So I think in general if you have an employee or you have a difficult decision to make in relation to an employee about whether you feel that they're fit or not . . . And you might get an argument on your hands where they insist that they are fit and able to work. But as long as you're able to justify your decision, and again, that has to be done through the risk assessment and a written record of it.
And then whenever they are sent home, I think it's important that they're given information. If that's a source of stress or concern for them, they're given information about what their entitlement will be to payment going forward.
Christine: And how does that feed into a statutory sick pay, Seamus? Would that day be counted as their first waiting day, or would it be the day after? How would you go about calculating that?
Seamus: Well, the position is then . . . So when it comes to statutory sick pay, you have to be sick for at least four days in a row, and that can include nonworking days. But you have to be sick for four days in a row in order to obtain statutory sick pay, and your statutory sick pay will commence on Day 4. So the first three days aren't payable.
And the reason behind that has always been that it avoids people just to want to sick day in. The Monday and Friday Club, as I always call them. It puts that element of longevity onto it to ensure that it is a genuine illness.
And our current rate in relation to statutory sick pay is now £99.35. I expect that that will probably go up again. April is usually the time the government revise it. And you get a general entitlement to statutory sick pay for a period of 28 weeks.
Generally and legally, there's no obligation to pay above and beyond statutory sick pay unless you have a company sick pay scheme. And again, that needs to be set out within your sickness absence policy and procedure, and that staff are clear in relation to the entitlement on it.
In relation to the entitlement to get sick pay, my understanding is that even if you attend work on the first day for a small amount of time, that day doesn't count because you've been in work. And then the clock starts to run from the following day, which covers off then in relation to your counting time, your period of incapacity as it's called, for statutory sick pay.
So even if you're in just for a very short period that they will not count towards the incapacity period, it'll be then the following days. But again, that's where the discretion is for the employer as to whether they will pay them for the day that they've come in, or whether they make a decision that that's not going to happen.
Christine: We've got one final question before we kind of wrap this section up, Seamus. So we're being asked, "What is your view on a manager who's not a fan of working from home, but has the full ability to work remotely?" So it's somebody who's resisting working from home if they are ill, but okay to work. Could you insist that they do that because the infrastructure is in place?
Seamus: I mean, you could do, yes. I think on the basis of doing your risk assessment, if you felt that their presence in work wasn't appropriate in the sense that they're not fit enough to be in work, or alternatively where their presence is putting the risk at others . . .
I mean, it would be similar to if you suspend a member of staff, you have to pay them during their period of suspension. You're not in these circumstances suspending the member of staff, but you're giving them an alternative where they can work from home.
And where they refuse that alternative, I think you're looking at the reasonableness of that decision for the employee, because they have the ability to work from home, and if they refuse to do it and you send them home, you might arrive at the conclusion that they weren't fit to be in work, and they're therefore not entitled to pay.
Where if they were at home and able to work while they were at home, even if it was for part of the day that they were able to do it, they would be entitled to payment in that sense.
Christine: So really what I'm hearing from you, Seamus, on this session about sickness is it really comes back down to reasonableness, it really comes down to communication, and it comes down to having a good policy that sets out what the steps are in each given scenario. Would that be a good summary?
Seamus: Yeah, absolutely. Look, you cannot forecast for every single problem in a written policy and procedure, but we know the general basics here, and you do avoid that conflict aspect horizon if you're consistent and it's written down. It's a big part of the battle.
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