Scott: "If an employer requires an employee to travel to work to a different country and on their return the employee has to quarantine for 14 days, is the employer required to pay the employee for this isolation period, as it is a result of work-related travel required by the employer? Or is the employee required to take annual leave as if they had travel for personal reasons?"

Secondly, "Should the employer provide pay for the accommodation of employees who have to quarantine as a result of work-related travel?"

Presumably at either end. So you arrive there for a business meeting, and then you have to quarantine when you're there, and then you come back, you're quarantined. But if there are accommodation things, would the employer have to pay?

Seamus: My view in relation to that would be that where you're travelling for work purposes, there's a responsibility on the employer in that respect. Certainly you could look to have a conversation with the employee. Probably the likelihood is for anyone that is doing that travelling that there's an element that they can work remotely and that even when they return, they can work from home, that could be discussed and facilitated. But certainly I would have thought that the employer would be on dicey ground if they imposed a period of no payment if the employee was actually travelling, you know, as part of their duties and their responsibilities at the request or direction of their employer.

Concerns Around Returning to the Workplace

Scott: Okay. Let's move on to the next question. It's the other side of the coin, about the people who are being flippant, if you like, or reckless in their behaviour.

"We have asked employees to return to the office on a phase basis from September," so this obviously came in before Monday. "And while the majority of staff have agreed to do so, a few have expressed concerns about doing so. We have put a number of COVID-19 safety measures in place to make the workplace as safe as possible. Can we insist employees return, and what do we do if they refuse to do so?"

Seamus: Well, this is a question that I've come across certainly from my clients, and I have to say it has been not the majority of staff, but the odd one or two. And at times there have been sort of genuine reasons for it. But essentially, you know, employees are working under a contract of employment. I think where we're at, at the minute, I know Boris Johnson has said that everybody should be, you know, seeking to return to the office. Our government at Stormont are slightly at a different point, where they're saying if you can work from home, you should do. But there's a reality here where businesses have reopened and there's a need with the businesses open to have staff on the grind.

And the first way to look at that is perhaps this hybrid, where we look back at the poll there and you can see that people are returning to work sort of on a rolling basis, sort of maybe one day, two days a week, something along those lines. I think that where there's an operational need and requirement for that, it's perfectly fine and it's perfectly reasonable for the employer to have an expectation that the employees will return to work. It's the needs of the business.

You know, that said, most offices' place of work, you know, they have put in place, you know, safety measures. They've taken the steps in order to offer or provide for a healthy and safe work environment. And where they are able and capable and have done that, it is difficult to see where a reasonable employee wouldn't return to work on that basis.

But, again, the important part is looking at the communication side of things, talking with the employee about the steps that have been taken, what would be their concerns in relation to returning to work, can things be facilitated in relation to maybe looking at, you know, a temporary variation of their sort of working hours and ability to work from home.

The guys that I came across, it was really a receptionist for an employer. And part of that role in the optician's office was that the receptionist also assists the customer to select and choose glasses. And one employee who, you know, would fall under the category of having been clinically extremely vulnerable and they're very concerned. And I think if there's a genuine concern from this employee about leaving home, never mind coming in to work. And they have talked with the employee. They've tried to encourage the employee to come into the office to see the safety measures that are in place. And my advice was really around maybe looking at, you know, are there other variations that could be made. Could the receptionist, you know, be placed behind the screen or the desk and maybe for a period of time not assist customers in relation to selection of glasses and things like that as well?

But it does get to the point where the employer will need to make decisions. And whether those are decisions of, "Well, if you're not able to attend work, then you won't be paid, and it will be a period of unpaid leave." Or looking to see if there's actual medical evidence behind what the employee's position is. That might be looking to get, you know, a letter from their GP, something in terms of maybe referring to occupational health.

One thing that did come into my mind, Scott, whenever I looked at this, was we do, of course, have Article 1321D of The Employment Rights Order here in Northern Ireland, the 1996 order, and it talks about where employees have a genuine fear of danger of coming into the workplace. And I think, you know, despite its own conventional nature in terms of danger, the risk of coronavirus may fall within that. And, you know, employers therefore, if they decide to dismiss these employees who refuse to come to work or they look at some form of, you know, following the statutory procedure and maybe looking at dismissal of some other substantial reason or something along those lines, you could potentially see an employee making a case that under Article 1321D that they believe there to be a serious or imminent danger in their place of work.

So I think it's about weighing up the circumstances. I think, for me, the big fallback position has to be where the employer can demonstrate that they've put in place those effective safety precautions, you know, where you can say that employees are reasonably expected under the circumstances that we're in to come into work and to operate on a safe basis. I think it's easier in some businesses than it is in others, if you think of the meat factories and the difficulties that have arisen. Or if you are an employee in a healthcare setting. We mentioned, you know, Craigavon Hospital. You know, you could potentially say as an employee, "That's a dangerous place for me to go into work," particularly if I am a clinically extremely vulnerable person.

Scott: Yeah.

Seamus: But I think you have to fall back to the position of the employer, you know, following PHA guidance, following the Health and Safety Executive guidance, and having your social distancing in place, making sure that there is those precautionary steps in relation to hand sanitising and all the facilities in relation to that, and weigh it up and doing your risk assessment. And I think where you're coming out saying, look, the employee is acting unreasonably by not coming to work, then you're drawing the line of having to look at what the contractual options might be.

Scott: Yeah. I mean the difficulty is it's not really a disciplinary issue. But on the other side people coming to work and you have a spate of COVID-19 cases, then the employer is looking at a whole lot of personal injury or industrial injury claims on the other side. So it's really difficult for everyone.

And I think, you know, as you're saying, it's one of those ones where you try and reach an accommodation. If you can't, you may eventually look at dismissal, but is should be kind of the last resort after you've said, "Okay, we won't sack you, but we won't pay you," or, you know, "We'll look at varying hours," or, "We'll put in all these different safety measures." "We've looked at working from home." But a lot of employers, you need the people in. You know, if you're running a business that's serving customers, you've got to be in there to serve them.

Seamus: Yeah, it's the same push and pull factors that we're even hearing from government guidance, and it's this aspect of, you know, what the medical profession have to say as regards where we're at sort of, you know, economically. And, you know, clearly the message is that there is a balance to be struck and there is the ability to, you know, recommence, reopen, and have things operational again, which will require staff to be in the business. As you say, often you can't run the business without the staff being there. Or it's not possible to work remotely. But it's about finding that balance. And for me it's about communication with the employee. Bring them in maybe on those off hours, show them the steps that have been taken, show them practically how the workplace will work, and try to reach the accommodation that way.