Over the past year, the news has been inundated with reports on the outbreak of confirmed cases of the new strain of coronavirus, known as COVID-19, first identified in Wuhan City, China.
As of 4 February 2021, there are over 104,000,000 confirmed cases of COVID-19 worldwide with over 2,270,000 deaths reported. Currently, there are 3,870,000 confirmed cases in the UK.
As a business owner, you’re probably wondering how the situation surrounding coronavirus is going to affect both your workforce and your workplace.
Citation’s experts have gathered some of the most frequently asked questions around both the HR and Employment Law implications of the spread of coronavirus and put together some practical steps on how to move forward safely and keep your people and premises safe.
One of the biggest issues for businesses arising from COVID-19 is how to manage the need for employees to self-isolate.
Here, Citation’s Head of Employment Law, Gillian McAteer, answers the most frequently asked questions on about how to navigate the HR issues arising from a public health crisis.
If employees have received medical advice to self-isolate, you may want to consider whether it would be possible for them to do their job from home. You may already have a business continuity plan in place for employees to work from home, which will be a great help in minimising business disruption. However, this may be the first time you’ve considered home working. In these cases, consider if homeworking will take place for an extended period of time, as an assessment should be carried out to ensure employees have the equipment they need and to review other health and safety considerations.
This has been an area of great confusion for employers because employees in isolation are generally fit for work and therefore some have argued that they should receive full pay. However, on 26 February 2020, the Health Secretary Matt Hancock made it clear that those who were staying away from work as a result of medical advice to self-isolate were doing so for ‘medical reasons’ and therefore should receive sick pay. We would advise that the approach advocated by the government is correct and employees who have been advised to self-isolate in line with government guidelines, should be treated as on sick leave and paid accordingly.
If they've been advised that he must self-isolate, then you can tell them that they must not come into work as by doing so they could potentially be putting the rest of your employees at risk. The government position is that self-isolation absence from work is absence for medical reasons and should be treated as sick leave. The employee should, therefore, be paid accordingly.
As an employer, you can, of course, exercise your discretion to pay full pay in these circumstances and this can be very helpful to retain employee engagement at a difficult time. However, you should be aware that if you do that, you should do so consistently and there is a good possibility that the need for self-isolation amongst your workforce may increase over time. If you’re not consistent on this and give full pay to some but not others, this can not only cause resentment amongst employees but could also give rise to discrimination claims if employees feel that they have been treated differently because of a protected characteristic.
The government has announced plans to introduce emergency legislation that enables employees to be paid Statutory Sick Pay from day one rather than after three days. Although it has not been specifically confirmed, it is anticipated that this will only apply to coronavirus related sickness absences. The government have stated that this will be a temporary measure which will lapse when it is no longer required. We do not have an implementation date for this change and until this is known, employers are under no obligation to change their SSP payments.
A summary of the government's Coronavirus Job Retention Scheme and how to designate furloughed workers in your business
Workers may be entitled to SSP if they have average weekly earnings of at least £118 ( before tax) calculated over a pay reference period of at least 8 weeks. To check whether someone meets this threshold, take the last normal pay date before the first complete day of sickness absence and count back to the last normal payday falling not less than 8 weeks from that date. Calculate all earnings within this period and calculate the weekly average on that basis (i.e. for a weekly paid employee this would mean dividing the figure by 8 and for a monthly paid employee it would be dividing the figure by 2, multiplying by 12 and then dividing by 52 weeks). If this figure is at least £118, they will be eligible for SSP. Further details on calculating average weekly earnings can be found here.
As an employer, one of your most essential duties is to safeguard the health and safety of your employees. Government guidance on COVID-19 is reviewed regularly, and the guidance is updated at 2pm every day. If this guidance doesn’t require your employee to self-isolate, they should pose no realistic risk to your other employees. If in any doubt, it would be reasonable to ask them to check by calling 111. If you want to be extra cautious, you can ask them to self-isolate, but you would have to pay them full pay as there is no evidence to suggest that there are medical reasons for doing this.
Employees can self-certify sickness absence for the first 7 days (including non-working days) but after that period an employer can require them to produce a fit note from their doctor confirming they are unable to work. However, in respect of COVID-19, government advice is that employees should isolate themselves for 14 days and should not attend their doctor’s surgery during that time, thus making it impossible for them to obtain a fit note. BEIS Guidance is that employers should exercise their discretion and not require a fit note to cover this period. We agree with this stance and would advise that sick pay should not be withheld in the absence of a fit note in these circumstances.
Current government advice is that closure of the workplace in these circumstances is not recommended. In cases of confirmed cases of COVID-19, Public Health England’s local protection team will be in contact with the employer to discuss the case, find out who has been in contact with the individual and advise on actions which should be taken including any quarantine arrangements which may be necessary and cleaning of communal areas which may need to be undertaken.
Government guidance at the moment states that there is no need to do anything while test results are pending. At present, most tests do come back negative, and therefore no action needs to be taken while a case remains unconfirmed.
Although government guidance to employers is that self-isolation is for medical reasons and therefore should be treated as sick leave, some employers may feel that this is unfair if the employee chose to put themselves in this risky position by not following government advice. There is an argument that in those circumstances the employee has deliberately put themselves in a position where they are unable to attend work and therefore the absence should be unpaid. Some could even argue that this behaviour is a potential disciplinary issue. If you are considering taking up this stance, the best policy would be to communicate to all your employees regular updates regarding travel risks, the consequences of travelling to an ‘at risk’ area and how the company would propose to deal with a period of self-isolation arising in these circumstances. If you're considering taking such an approach, taking advice before taking any action is advisable as this situation is very complex.
If you are advised to close your business, you should do so. Although there is no general obligation that an employer must provide work to their employees, this is usually a fundamental term of their contract and if the employer is unable to provide work, they must usually pay their employees in full. However, if you have a contractual right to lay off without pay, you could rely on this which would mean that your employees would only be entitled to payment of statutory guarantee pay for the first 5 workless days. This is pro-rated for part-time employees and therefore if they work 3 days, they would receive statutory guarantee for the first 3 workless days. Statutory guarantee pay will be their normal rate of pay subject to a statutory maximum of £29 per day. If you do not have a lay off provision in your contract, you could ask your employees to agree to a temporary variation of contract to allow this. However, it is highly unlikely they would agree to this in these circumstances given that the alternative would be receiving full pay. Some contracts do not stipulate that the employer will provide a specific number of hours of work per week (such as variable hours contracts). However, even in those cases it may be the case that in practice the business has provided regular hours of work, leading to a potential contractual entitlement and therefore advice should be sought on what would be the appropriate pay arrangements in those cases.
In this situation the rights of employees will depend on the terms of their contract of employment. If the closure of the client’s business means that you are unable to offer them any work (for example, you provide school catering services and the school has been closed), you will be able to lay off your employees until such time as the school reopens provided your contract provides you with the right to do this. If so, the employee will receive statutory guarantee pay for the first 5 workless days. This is pro-rated for part-time employees and therefore if they work 3 days, they would receive statutory guarantee for the first 3 workless days. Statutory guarantee pay will be their normal rate of pay subject to a statutory maximum of £29 per day. If you do not have a lay off provision in your contract, you could ask your employees to agree to a temporary variation of contract to allow this. However, it is highly unlikely they would agree to this in these circumstances given that the alternative would be receiving full pay. It may be that the closure of your client’s business will only reduce the number of hours of work you can offer to your employees. For example, you offer school cleaning services and only one of the two schools your employee works in has been affected. In such circumstances you may be able to invoke any short-time working provisions you have in your contract. If your contracts do not say that you will offer a specific number of hours of work per week to your employees, take advice on what should be paid to your employees if you are unable to offer any or reduced hours of work
Employees have a legal right to take time off to deal with emergencies relating to their dependents and this includes the unexpected disruption of arrangements for the care of a dependent. In this particular context, a dependent could be the employee’s:
The global situation surrounding coronavirus is developing at a rapid pace. It’s always best to keep checking the government’s official guidance, which is updated daily and frequently under review.
If you’re already a Citation client and you need advice on the Health & Safety implications of risk assessing for coronavirus and workplace hygiene, or you need help managing anyone in your business who needs to self-isolate and work from home, you can all our advice line on 0345 844 4848 any time of the day or night.
Not yet a Citation client? Simply leave your details in the form opposite and one of our friendly team will be in touch to talk through your business needs. Or give our team a call on 0345 844 1111.
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