‘Caught Covid at work: Am I entitled to enhanced pay or compensation?’
As more people have returned to work and Brits seem more relaxed about visiting retail and hospitality venues, coronavirus cases are inadvertently on the up.
While the onus is on employers to provide ‘Covid secure’ settings for staff, there will be cases where workers do succumb to the virus.
Just this week, JD Wetherspoons confirmed 66 workers across 50 sites had tested positive for coronavirus.
As such, many may wonder if they’re due enhanced pay or even compensation if they catch the virus carrying out their jobs.
Kate Palmer, associate director of HR advisory at Peninsula, says the question of payment during coronavirus-related absence is dictated partly by the contract of employment.
“Employees who are sick with coronavirus or who have to self-isolate because of close contact with someone who has tested positive must get at least statutory sick pay (£95.85/week) from their employer, provided they meet all of the eligibility criteria,” she says.
In the case of Wetherspoons, any payment in excess of this will entirely depend on the contract they agreed, Palmer adds.
Julie Duane, an employment barrister at St Philips Chambers, echoes this point: “In order to determine whether the employee has a greater entitlement than SSP, this will be subject to the terms and conditions of the employee’s contract and employer’s sick pay policy.”
However, the question of ‘blame’ for contracting coronavirus at work is a tricky undertaking.
Duane explains that following the government’s announcement that those who can return to work should return to work, employers were under pressure to ensure business were ready and available for the return of its employees.
She says: “As such many employers undertook various actions which include, but are not limited to: workplace risk assessments; sanitiser stations; PPE; one-way systems in the workplace; and operating a one-in one-out for toilet facilities etc, all with a view to reduce risks to an employee.”
Where employers have failed to undertake measures to ensure the safety and wellbeing of their employees, this could pose potential risks.
Duane adds: “Where an employee highlights health and safety concerns to an employer, then they have the right not to be dismissed or subject to a detriment as a result of the disclosure of information.
“For example, if an employee believes they are subject to ‘serious and imminent danger’ which could not reasonably be averted, then they may be afforded protection under the Employment Rights Act. Likewise, where the reason or principal reason for a dismissal is a protected disclosure, an employee may have a viable claim for an automatically unfair dismissal.”
However, where an employer can demonstrate that appropriate steps to mitigate the potential health and safety concerns have been taken, this is likely to minimise such risks.
Duane says: “Employers should however carefully balance any disciplinary action against an employee who refuses to attend work i.e. an employee raising genuine health and safety concerns vs an employee going AWOL and failing to follow the correct absence reporting procedure.”
Palmer adds that employers should only ask employees to work in a Covid-secure workplace and employers who do otherwise will risk breaching their ‘duty of care’ as well as the mutual trust and confidence that needs to exist in the employment relationship.
“This could lead to the employer facing constructive dismissal claims. However, it would be difficult to prove how exactly the virus was passed to each employee and, if it had been in work, whether they had been infected through the employer’s negligence to implement rules to protect employees or employees’ own failure to follow the employer’s full Covid-secure system, despite having all of the new rules explained to them,” she says.