The recent announcement by JD Wetherspoon of its approach to Coronavirus-related self-isolation has sparked a debate on the best way to treat this kind of absence.

The pub chain recently announced that it was treating the virus “like any other illness” and paying its employees statutory sick pay. However, this was poorly received by trade union body the TUC, which stated that unless employees were paid from day one of their absence (as opposed to receiving statutory sick pay from day four), they might decide not to self-isolate due to money concerns, thus endangering the health and safety of other employees. The same could be said of those earning below the minimum threshold to receive statutory sick pay.

The first of these concerns has been addressed by new legislation introduced as a result of the Coronavirus crisis, which provides that statutory sick pay entitlement can start from day 1 of absence. The legislation further provides that any workers who have been required to self-isolate pursuant to Public Health England instructions issued on 16 March 2020 (the PHE Guidance) are entitled to statutory sick pay for the whole period of required self-isolation. What is less clear is whether the entitlement extends to those who are merely advised by the PHE Guidance to observe stricter social distancing due to underlying conditions such as asthma.

The implications of self-isolation extend beyond matters of pay. Some employers are reporting staff refusing to attend work due to fears about contracting the virus, which gives rise to questions about whether these staff should be subject to disciplinary action. The answer to this would depend on factors such as the objective risk of contracting the virus by attending work in light of the PHE guidance, the length of absence and the severity of the disciplinary sanction proposed; in such cases, dismissal may be disproportionate. Employers may also come across staff who are using the situation opportunistically in order to avoid work or even as an excuse not to attend a disciplinary hearing. If there is clear evidence of such motivation, then dismissal (on the basis of dishonesty) is more likely to be appropriate.

It will be interesting to see whether further employers announce their policies on self-isolation in the coming days, particularly in the light of the TUC’s critical comments.

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