Victoria von Wachter: Should employers pay staff for periods of isolation due to Coronavirus?

Victoria von Wachter: Should employers pay staff for periods of isolation due to Coronavirus?

In short, the answer is generally yes. The Health Protection (Coronavirus) Regulations 2020 contain a declaration by the secretary of state that the incidence or transmission of coronavirus constitutes a serious and imminent threat to public health.

The Health Protection Regulations 2020 state that where a person self-isolates because they have been given written notice to do so, typically by a GP or 111, then they are deemed incapable of work and are therefore eligible for statutory sick pay (SSP), whichever is payable under their contract.

By law, medical evidence is not required for the first seven days of sickness. After seven days, it is for the employer to determine what evidence it requires, if any, from the employee. This does not need to be a sick note issued by a GP or other doctor.

Public Health England is currently advising people to self-isolate only under very specific circumstances. These include anyone waiting for coronavirus test results, anyone who has come into contact with a confirmed infected person, and anyone returning from a country significantly disrupted by the virus.

The UK government’s latest advice to employers is that any period of necessary self-isolation under its guidelines would be treated as sickness absence, and that a doctor’s note would not be necessary to entitle that employee to statutory sick pay. However, it is unclear under law whether any period of self-isolation without symptoms should be treated as sickness absence, especially if an employee remains fit, ready, willing and able to work but is effectively placed on medical suspension as a precautionary measure for health and safety reasons.

The biggest challenge for employers is to test whether the self-isolation is genuine or just an employee who fancies a couple of weeks off work. It is especially significant where there is an organisation sick pay scheme in force. Employees should not be permitted to self-isolate just because they are nervous about the disease; there must be a sound reason for the self-isolation step.

If the employer is insisting on self-isolation then sick pay becomes automatically payable.

People unable to work for more than seven days because of Coronavirus can obtain an isolation note through a new online service. Isolation notes will provide employees with evidence for their employers that they have been advised to self-isolate due to coronavirus, either because they have symptoms or they live with someone who has symptoms, and so cannot work.

Victoria von Wachter is a barrister at 5 Essex Court