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Coronavirus FAQs

This update is based on our knowledge at the time of writing (23 March 2020). 

Our phones are ringing with various questions on Coronavirus.  We’ve put together a note answering some of the regular questions.   Please note that the government continue to make announcements and changes.  The Coronavirus amendments to the SSP Regulations have been changed twice since last Friday when they were published.

Sick Pay

What is payable if an employee self-isolate?

For adults who are not vulnerable SSP is payable for 14 days where an employee isolates to avoid infection with coronavirus in accordance with the government guidelines.  Those employees are deemed incapable of working for SSP purposes.

See https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance

In cases of coronavirus or self-isolation for coronavirus symptoms SSP is payable from day one of absence.

If an employee becomes ill in the period of self-isolation, SSP continues to be payable until they are fit to return to work in the normal way.

The government will reimburse SSP for 14 days for employers with fewer than 250 employees whose employees are off for sickness related to coronavirus.

Do we have to pay company sick pay?

Company sick pay is payable according to the terms of the scheme a company operates and may be contractual or discretionary.  Check the terms of your employment contracts.

Many contracts provide that Company sick pay is discretionary and the terms on which it may be paid will then be set out in a handbook or sickness policy.  It is usually the case that your handbook or sickness policy can be amended at any time.  If you do not intend to pay more than SSP for periods of self-isolation we advise that:

  1. amendments are made to your sickness policy to state what will be paid and when; and
  2. you advise staff that the company is not intending to pay anything more than SSP for periods of self-isolation unless the employee is able to work at home.

If the contracts provide that company sick pay is payable and that payment is not discretionary please contact us for advice.

Any changes to your company sick pay scheme or changes to the way in which you usually exercise a discretion to pay company sick pay should be communicated to employees as soon as possible.

What are our obligations to employees within the vulnerable groups

Vulnerable employees are defined in the Guidance on social distancing for everyone in the UK and protecting older people and vulnerable adults

https://www.gov.uk/government/publications/covid-19-guidance-on-social-distancing-and-for-vulnerable-people/guidance-on-social-distancing-for-everyone-in-the-uk-and-protecting-older-people-and-vulnerable-adults

Employees who are in this category should work from home if at all possible.

If it is not possible for them to work from home, it is currently our understanding that they are likely to be entitled to SSP for the period of their self-isolation (which may be for many months).  If they want to continue to come to work we recommend that you discuss this with them and that you document that discussion.

Do employees have to comply with existing absence management procedures?

Most contracts of employment provide that employees who are absent due to illness lasting more than 7 calendar days should on the 8th calendar day of absence provide the company with a medical certificate stating the reason for absence and the period for which they will remain unfit for work. 

Employees on self-isolation will not be able to get a fit note or medical certificate.  In the Spring Budget the government announced that a temporary alternative to issued by 111 will be available.  This is not yet in place. 

We advise that employers should be flexible regarding evidence in support of sickness absence for all absences at this stage.

Employers should also consider advising staff that absences caused by Coronavirus will be disregarded for the purposes of triggering action under absence management procedures.

Working from home

Can we compel an employee to work from home?

If there is already an established practice or requirement to work from home where appropriate or when instructed to do so, you can require the employee to work from home.  If not, requiring an employee to work from home could amount to a variation of the contract, however Public Health England’s guidance is that employer and employee should reach a sensible compromise and come to a solution that best meets both parties’ needs, bearing in mind the latest public health advice.

If despite this an employee is still refusing to agree to work from home, please contact us.

Note for employers who are newly introducing working from home that an employer should ensure that any health and safety implications of working from home are considered and that the necessary infrastructure is in place.  A homeworking policy is advisable.

Can we compel an employee who is self-isolating to work from home?

If the employer has the contractual right to compel the employee to work from home and the employee is self-isolating but is otherwise fit to work (and if not prevented from working by some other right , such as taking time off for dependents) they should work from home and be paid full pay.  The entitlement to SSP for those self-isolating is only triggered if the employee is unable to work.  If the employee can be required to work from home but refuses to do so, they are not unable to work and would not be entitled to SSP. 

Where there is no contractual right to compel the employee to work from home the employer may not be able to force them to work from home.  In that case the employee would not be paid in full but would receive SSP only.

Lay off and short time working

Laying off employees means that the employer provides employees with no work (and no pay) for a period while retaining them as employees; short-time working means providing employees with less work (and less pay) for a period while retaining them as employees.. However, if the employer imposes a lay off or short time working without a contractual right to do so a breach of contract occurs, and the employee may be able to resign and claim constructive dismissal.

Note that employees who are laid off for 4 weeks or 6 weeks in any 13-week period may be able to seek a redundancy payment.

Am I restricted in who I can lay off?

Employees who are already unable to work, for example due to sickness or (arguably) medically advised self-isolation, cannot be laid-off.

Employers should take care to avoid discrimination when deciding who to lay off or put on short time working.

Are employees who are laid off entitled to sick pay

No – employees who are laid off are entitled to statutory guaranteed pay for up to 5 days during a period of lay off.  The amount payable is limited to £29 per day for a maximum of five days in any rolling three-month period.

Holidays

Can an employee take annual leave to cover a period of self-isolation?

If they want to yes, employers cannot compel employees to take holiday in place of sick leave, but employees can request to take their holiday during sickness absence or deemed sickness absence.  Requests for leave can be refused provided refusal does not prevent them from taking their leave in the leave year.

Employers can require their employees to take leave on dates that they specify. 

Furlough – what is it?

A furlough is “a temporary layoff from work.” People who get furloughed usually get to return to their job after a furlough.

Who is eligible?

All UK businesses regardless of industry or size.

Will the government pay staff salaries?  

HMRC will reimburse 80% of furloughed workers salary costs, up to a cap of £2,500 per month through the Coronavirus Job Retention Scheme (backdated from 1 March 2020). Currently, the scheme is intended to run for 12 weeks (this is tied in with the period they have recommended for social isolation), however, this may be extended if it becomes necessary. 

In terms of the remaining 20% of salaries employees may be entitled to claim state benefits if employers are unable to cover the costs. 

What do businesses need to do?

You will need to:

  • Designate affected employees as ‘furloughed workers,’ and notify them of this status or change in status where lay-off or short time working has been implemented and
  • Submit information to HMRC about the employees that have been furloughed and their earnings through a new online portal (HMRC will set out further details on the information required).

Lay-off v’s furlough

The government have introduced the Coronavirus Job Retention Scheme to assist employers from having to terminate employment of its staff and thus reduce the costs to a business of hiring and firing staff, however, employers need to be aware that employees continue to accrue holiday during the furlough period and the purpose of being in ‘furlough’ is that employee will return to work. 

For the latest news and more detailed information on the virus visit; https://www.gov.uk/guidance/coronavirus-covid-19-information-for-the-public

Please contact SCE Solicitors, for any further guidance you may require regarding the Coronavirus and your employee policies and practices

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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