Coronavirus – key issues when providing temporary resource during an epidemic – what does the law say?

Businesses and other employer organisations will need to keep going as best they can during the more disruptive period of any coronavirus epidemic.

Not every organisation can close down temporarily and not every role can be performed remotely. And so it seems likely that for many organisations, the NHS being a prime example, a key part of the planning may be the use of temporary staff. Indeed suppliers of temporary staff seem likely to play a key part in allowing many organisations to continue in operation.

What are the key tips for staffing companies and other suppliers of temporary or contract staff whose clients use that solution?

• As has been identified in the media, agency and gig workers are often not entitled to receive full sick pay and may therefore (for fear of losing income) be relatively less likely to self-isolate if they have come into contact with high risk persons. Imposing a legal obligation to self-isolate may in practice not be enough for people with whom you have no ongoing employer relationship. There is only so much monitoring you can do as a supplier of temporary staff, but consider what things you can do to monitor likely risks with such workers so that you can reassure end users. Clearly you should do what you reasonably can to include temporary workers in any training you carry out relating to hygiene and prevention of transmission.
• Remember that under the Conduct Regulations (Regulation 20) staffing companies are obliged to make enquiries about whether a candidate might be suffering from or at relatively high risk of suffering from the virus. At the very least this may involve asking them about recent travel, their own health and that of people they live with or have had close contact with. If you find out that the candidate is unsuitable you are statutorily obliged to on the same day ( or the next day if it is not possible to inform on the same day) inform the end user. If there is merely a suspicion of health risk you are statutorily obliged to make such further enquiries as are reasonably practicable and inform the end user (again on the same or next day) if and when you discover the worker is unsuitable. We consider there is risk of complaint and action against staffing companies which are not seen to take adequate steps under Regulation 20 – not least because at some end users there may be a tendency to try to blame external suppliers of staff for any virus outbreak. Damages claims against staffing companies seem unlikely to succeed in most cases given how hard it will be to prove what particular act or omission led to any particular outbreak and what loss was caused by that act or omission, but the regulator may still investigate whether the supplier is "suitable" to continue in business if it has failed to carry out checks.
• Remember that any information you obtain from candidates about their personal health will be sensitive personal data. The Conduct Regulations appear to give you lawful grounds (on the basis of legal obligation) for collecting that data in respect of candidates who will be in physical contact with your or end client personnel, but you will need to check that your data protection policies are up to date in terms of how you handle that data and how long you keep it and what you use it for.
• Remember that under the Conduct Regulations (Regulation 18) staffing companies are statutorily obliged to obtain from end users details of specific risks to health known to the hirer and what steps the hirer has taken to control such risks. If the hirer has unfortunately suffered an outbreak, this might include asking what steps have been taken to clean the relevant premises or require relevant staff at high risk to self-isolate. We consider there is risk of complaint by workers and action against staffing companies which are not seen to take adequate steps under Regulation 18, and the regulator may investigate whether the supplier is "suitable" to continue in business if it has failed to carry out checks and workers make complaints.
• Obviously relevant staffing companies will probably already be working out which roles cannot be performed remotely/from home and line up temporary resource for those roles in particular, especially more local workers who can walk to clients' relevant premises. We imagine this sort of service will be invaluable to certain end users if public transport becomes difficult to use during any more disruptive period of any epidemic.
• Consider transport arrangements for workers if public transport becomes difficult. Remember that the Conduct of Employment Agencies and Employment Businesses Regulations 2003 ("Conduct Regs") and National Minimum Wage regime contain complicated rules about what (if anything) you can charge lower paid workers for provision of such transport.
• For those clients who want priority status there is clearly an opportunity to try to obtain a longer term preferred supplier appointment perhaps with guaranteed minimum spend. If you are asked to prioritised certain clients over others you may well lose loyal clients, and you would be entitled to guard against the long term impact of that on your business and people.
• Be careful about being tied to supplying at certain rates – you obviously may have to increase the rates you pay to the "hard to find" temporary workers at the height of any disruption, so you will need to budget for some price increases and you should prepare your clients for this.
• Make sure that your contracts are clear about the impact of epidemic. Should either party be able to avoid obligations because of what now seems to be likely disruption? Should the parties agree now what level of disruption "has to be covered anyway"? Certainly you should try to agree relaxation of service levels or KPIs relating to maintaining certain staff levels, or finding x candidates within y days for a particular vacancy.
• Remember that, somewhat unfortunately, various tax measures have been and are being introduced in April (including IR35) to punish end users and suppliers for using staff engaged via intermediaries who do not apply tax correctly. Be careful about being tempted to use potentially unlawful tax schemes to get access to more workers by increasing their take home pay via tax schemes. HMRC is currently investigating potential tax evasion in the labour supply chain and will not "let suppliers off" because of the virus.

If you would like to discuss any of wthe issues raised in this article in more detail, get in touch with one of our experts or your usual Osborne Clarke contact.