If, in order to prevent the spread of pandemic flu, an employer instructs its employees not to come to work, does it have to pay the employees in full?
In addition to the duty of care owed by an employer to protect its workforce as a whole, the employer has a duty to provide work for its employees. Therefore, if employees who are willing and able to work are sent home as a precautionary measure, the employer cannot withhold pay unless it has a clear contractual right to do so. In the absence of such a term, the employer should maintain the employees on full pay, otherwise it risks claims for breach of contract and constructive unfair dismissal. It may be that the employees are able to work from home, in which case the employer should also continue to pay them in full.
If employees are instructed to stay at home because of suspected sickness, the employer will not be able to withhold pay unless it has the contractual right to do so, or the employee agrees that he or she is too sick to work, or is certified as being unfit by a doctor, in which case the employer should apply its sick pay policy.