As you will imagine, I have taken a lot of calls about the coronavirus and I thought it may be useful to produce a document covering the common questions.
You will appreciate that guidance is changing on an almost hourly basis. In addition, this is a generic email and the advice is not specific to your business. If you require specific advice, please contact me.
From today legislation has been amended to confirm that all people who are advised to self-isolate will be entitled to statutory sick pay. That entitlement arises from day one and there is no longer a three-day waiting period. Employers with less than 250 employees will be able to reclaim up to 2 weeks SSP but details of how this can be done have not yet been released. Employers should therefore make the payments and seek recovery once the process has been finalised.
I have been asked whether an employee is entitled to receive company sick pay in circumstances where they are advised to self-isolate, or whether their entitlement during this period is for statutory sick pay only. Whilst there is a potential argument that an employee who is self-isolating is not sick and therefore not entitled to company sick pay, I believe that the courts may be led by the change in legislation to statutory sick pay. As such, in the absence of a definition of sickness in a contract of employment, the courts are likely to find that an employee should be entitled to company sick pay in all circumstances where SSP is payable (include self-isolation).
Importantly, there is no requirement to extend periods of company sick pay. If an employee has already used up most of their sick pay entitlement, they will only be entitled to the balance. Once this is exhausted they will only be entitled to statutory sick pay.
If you have any employees on a zero hours contract, it is important to appreciate that they are entitled to statutory sick pay provided they have the qualifying days.
There has been some suggestion that employers have to discount any absences due to the coronavirus for the purposes of absence management or for the purposes of a selection criteria in the context of redundancy consultation. Coronavirus is not a disability and, as such, there is no legal requirement to discount this absence. That said, on a practical basis you may decide that you do not want to encourage employees to attend work where they should be remaining at home. You may therefore decide to discount coronavirus absences regardless of whether there is a legal obligation to do so.
One of the main concerns appears to be malingering employees who will take advantage of the situation. I have been asked whether employers can challenge an employee who claims to have been advised to self-isolate. We are in challenging times and individuals are highly unlikely to receive written confirmation that they have been advised to self-isolate. Indeed, guidance from the government is that individuals suffering from mild symptoms should not contact their GP or call 111 but should remain at home. On that basis, it will be extremely challenging to prove that an individual does not genuinely need to self-isolate. Clearly, if self-isolating individuals are able to work from home then they should do so. In other cases, they should receive statutory sick pay for company sick pay, depending on their entitlements.
The government has advised that, wherever possible, employees should be permitted to work from home. Technically, a new requirement to work from home amounts to a change in the employee’s contract of employment. As such, consent would ordinarily need to be obtained. In this case however, and given the guidance from government, I believe that it is reasonable to instruct an employee to work from home. Clearly, there are some employees who may not be able to work from home or who may not have the necessary equipment. If it is possible to provide equipment (such as a laptop or an Internet router) the employer should consider doing so.
Questions have arisen as to whether any reasonable adjustments applied to the workplace for a disabled employee need to be transferred to their home if they are required to work from home. Examples of this would be a special chair or computer monitor. There is no clear advice on this but the requirement under the Equality Act 2010 is for employer to make reasonable adjustments to support a disabled worker. As such, logic would suggest that if any physical adjustment can be transferred to an employee’s home they should be. If it is not possible to transfer the adjustments, an employer may be able to claim that it was not reasonable to transfer the adjustments to the employee’s home, given the temporary nature of the arrangement. In such cases however, an employer may need to consider whether the employee can work from home or not. If they are unable to work from home without the adjustment, and if their place of work is closed, they may be entitled to receive their full salary. This will need to be decided on a case-by-case basis so please contact me if you have any queries.
Although schools have not yet closed, it is likely that they will be closed in the future.
If parents have to remain at home, purely as a result of the school closing, they will not be entitled to receive any payment during that time. They are likely to be able to rely on the statutory entitlement to take time off to care for a dependent in an emergency. Ordinarily, my advice is that the entitlement to take time off to care for a dependent is limited to 2 or 3 days. That should be sufficient time to make alternative arrangements for childcare. You will appreciate that employees are highly unlikely to be able to arrange alternative childcare at the moment. Given the effect of the virus on the older generation, it would be unreasonable to expect employees to arrange childcare with grandparents. In addition, childcare providers who remain open will be inundated with requests for support. I therefore believe that employees will be able to establish that they are able to rely on the statutory entitlement to take time off to care for a dependent in an emergency for the entire period that the schools are closed. Whereas this does not entitle them to any payments, it does protect them from dismissal or detrimental treatment.
Importantly, if either the child or parent subsequently become unwell with coronavirus or the parent is advised to self-isolate, at that point the parent will be entitled to statutory sick pay or contractual sick pay.
If a parent chooses to take their child out of school as a precautionary measure, in circumstances where the schools remain open, I believe that they are unlikely to be able to rely on the statutory entitlement to take time off to care for a dependent in emergency as no emergency will exist.
Lay off and Short Time Working
Many clients have asked me how they can reduce their payroll during this time, due to sudden and significant reduction in work. In the first instance, I would suggest meeting with all of your employees to explain the situation and the impact that it is having on the business. Employers can then explain that, if the situation continues, it may be necessary to make redundancies. They can then ask that, as an alternative to redundancy, staff agree to a temporary reduction in salary and/ or working hours. Any agreement should be confirmed in writing.
In more extreme circumstances, where it is necessary to significantly reduce payroll, employers may consider introducing layoff or short time working. If the contract of employment allows layoff or short time working, the process can be introduced by notifying employees. If the contract does not allow for layoff or short time working, employees may agree to this as an alternative to redundancy. In particular, given that the virus is likely to peak in the coming weeks, layoff or short time working may be preferable to redundancy as they are temporary measures.
If an employee is laid off or placed on short time working (meaning that they are paid less than 50% of their normal weekly salary), they have a right to claim for redundancy if they are laid off for a period of 4 weeks (or 6 weeks in any 13 week period). They have to make the claim by giving notice to the employer. The employer can give a counter-notice if they reasonably believe that work is likely to increase in the next 4 weeks to the extent that the employee will be invited to return to work. Timing may be key here, given that the virus is expected to peak in the next 10 to 14 weeks.
Employees who are laid off are entitled to guaranteed statutory payments but these are extremely low (£29 per day for a maximum of 5 days in any 3 month period)
In some cases, redundancy may be the only option. If your business is in this situation, the first thing to consider is whether you have employees with less than 2 years’ service. Provided any decision to terminate their employment is not discriminatory or made because they whistle blew or asserted a statutory right, such employees will not have a claim for unfair dismissal. Their employment can be terminated by giving them their contractual notice entitlement or by making a payment in lieu.
For all other employees, a proper consultation process should take place. There is no relaxation of the requirements to follow a fair and reasonable process in consulting with employees about redundancy so the usual procedures should be followed.
I anticipate that there will be further questions and other issues that need to be addressed. I will try to keep you updated but if you have any queries please do not hesitate to contact me.
Amanda Pillinger – 01789 336957/ 07764 764806