Coronavirus: What are the options with employees?

Yesterday the PM announced that we should limit “non-essential” travel and contact. It has been recommended that people should work from home where possible.

Guidance is changing daily and employers and employees must keep up to date with Public Health England guidance here.

An employer has a duty to keep all employees safe, and an employee should take responsibility to ensure they are not putting others at risk.

We recommend all employers come up with a tailored plan which is likely to involve taking legal advice.

We have outlined some typical considerations below:

1. Employees who are ill with symptoms due to coronavirus

These employees will either be:

a. So ill they cannot work in which case they will be entitled to sick pay. All qualifying employees will be entitled to statutory sick pay (SSP) from day one of absence, instead of day four if absence is due to coronavirus.

In addition employees will be entitled to contractual sick pay if they have a contractual right. Employers should check contracts and polices.

Employers can exercise discretion to offer limited full pay for sickness even if there is no contractual right.

b. Minor symptoms: Government guidance is to self isolate even if an individual as minor symptoms. In this case, all qualifying employees will be entitled to statutory sick pay (SSP) from day one of absence, instead of day four.

It is arguable whether employees will be entitled to contractual sick pay if they are not unwell. If they are unwell it is likely that they will be entitled to contractual sick pay.

Employers should check contracts to see what the entitlement to contractual sick pay is and whether this is discretionary.

Employers can exercise discretion to offer limited full pay for sickness even if there is no contractual right.

2. Employees who are not ill but Public Health England guidance is to self isolate

Currently guidance is to self isolate and minimise social contact if:

a. You are a confirmed case/have symptoms – as above Employees who are ill with symptoms

b. You have returned from travel in a high risk country;

c. You have been in direct contact with someone who is a confirmed case;

d. You live in the same household with someone who has symptoms i.e. a persistent cough or fever. Everyone living there must stay at home for at least 14 days; and/or

e. You are over 70, normally advised to have flu vaccine, or you are pregnant you are advised to limit all social contact.

These employees may not be ill, but due to guidance published by Public Health England are recommended to self isolate to prevent infection or contamination with coronavirus disease.

All qualifying employees will be entitled to statutory sick pay (SSP) from day one of absence, instead of day four from 12th March 2020.

What if an employee falls into the above category but refuses to self isolate due to worries over only receiving SSP?

Employers may be able to force the employee to take sickness, if the Public Health England guidance is to self isolate. Alternatively, employers could consider any of the measures below e.g. home working, agree holiday pay, discretionary sick pay etc.

NB: Statutory sick pay points to note:

Employees who are confirmed as having coronavirus, or guided to self isolate by Public Health England, will be entitled to SSP from day one, instead of day four.

This variation to the SSP rules will last for at least 8 months from 12th March 2020. This will be kept under review. Updated legislation can be found here.

Other qualifying criteria apply for SSP

The rest of the normal qualifying conditions apply and employees must still:

1. Be classed as an employee and have done some work for their employer;

2. Earn an average of at least £118 (lower earnings limit) per week;

3. Tell your employer you are unwell in accordance with their normal absence process or within 7 days if no process.

Does the employee need to provide a sick note?

Usually an employer would ask an employee to provide a sick note. Employees will be unlikely to get a sick note straight away, as they are advised not to overload the 111 helpline.

Employers are well advised to take the employees word and pay SSP unless there is serious reason to doubt.

Employers always have the discretion to obtain different types of evidence and do not necessarily need a sick note.

Do not qualify for SSP:

For those who do not qualify for statutory sick pay, there is a range of support in place to include Employment and Support Allowance. You should direct these employees to the government website.

3. Home working

Any employees, who are not forced to self isolate due to the above, are also advised to stay away from the office and work from home where they can. This will be likely to maintain productivity and pay for all.

All employers are well advised to look at whether their workforce can work remotely from home. The one positive is that this is likely to create a longer term and more flexible work force.

There is lots of guidance about how to manage home working and the key to this is communication.

If an employee cannot work from home and is not currently in a category of self isolation:

While offices remain open, an employee can choose to remain at work; or

If an employee does not wish to be in the office but is not currently advised to self isolate, they could: ask for unpaid leave, take holiday, or ask for sick pay.

4. Considerations before forced closure:

We recommend that it may be necessary to take tailored legal advice before taking these steps to combat the risk of claims or damage to reputation. Before forced closure or forcing employees home, employers should consider the following:

a. Contracts – is there a contractual right to suspension without pay – this is very unlikely and even if there is, it is unlikely to apply to a suspected illness;

b. Forced Holiday – there may be a provision in the contract to compel employees to take holiday during planned closures or just to take forced holiday even if the business is not closed;

The Working Time Regulations provide that employers should give their staff notice of forced holiday and this should be at least twice as long as the period of leave they want staff to take;

c. Agreed holiday – your workforce may agree to take holiday as an alternative to dismissal, sick pay or unpaid leave;

d. Lay off/short time working – an employer can ask employees to stay at home or take unpaid leave if there is not enough work to do.

A lay off is if an employee is off work for at least 1 working day. Short time working is when hours are cut.

Employees will be entitled to full pay unless there is a clause which allows unpaid or reduced pay lay-offs.

If there is a clause in the contracts of employment or even if there is not, with agreement by the employees the employer can place the employees on a period of statutory lay off during which they will only be entitled to guarantee pay of a maximum of £145.

The benefits of this are that the employee will remain in employment but not entitled to pay.

After 4 weeks lay off, an employee can request redundancy.

e. No lay off clause in contract – if there is no clause in the contract, any lay off should be fully paid. However it is possible to consult with employees to get agreement as an alternative to dismissal. If an employee has less than 2 years service, an employer may choose to force a change of contract. It may still be possible for an employee to pursue a breach of contract claim and employers should take advice before forcing changes

f. Employees with less than 2 years service – employees with less than 2 years service do not have unfair dismissal rights. This means it is relatively low risk to terminate employment on notice. In addition an employee would be unlikely to be able to pursue a constructive dismissal claim if an employer enforced a change to the contract i.e. statutory lay off. Again, we recommend employers take advice before taking such steps. Employers must consider damage to reputation and also the ability to be able to open for business if they have terminated some of their workforce.

Employees should also be mindful of circumstances which could lead to claims when employees have less than 2 years service i.e. alleged bad treatment as a result of: protected characteristics (discrimination), raising health and safety matters, or whistle blowing. No redundancy payment is due for employees with less than 2 years service.

g. Redundancies: consider commencing a redundancy process and warning employees that if there is a sudden downturn or closure of a business compulsory redundancy may be necessary. Employees with less than 2 years service will not be entitled to a redundancy payment and will not have a right to pursue an unfair dismissal claim unless they allege selection is discriminatory, or for an automatic unfair dismissal reason.

5. Workplace closure

If a business is forced to close for example if schools, bars/restaurants are forced to close:

Employers should try to maintain home working where possible but this will not always be possible. If not possible and the workplace closes:

Permanent and regular employees will be likely to be entitled to full pay.

The general rule is that if the employer prevents the employee from working then the employee will be entitled to full pay. In other words, if the employee is ready and willing to work, but the employer prevents then it is likely the employee will be entitled to full pay. It may be different if the employer has done everything reasonable to get the employee to homework but employee unreasonably refuses to do so.

If a workplace decides to or has to close and employees cannot continue working from home, or if there is a huge downturn, employers will be forced to consider options for dismissal in an attempt to remain in business. The potentially fair reason is likely to be redundancy. For advice on how to follow a full process, we recommend tailored advice.

We are taking measures to protect the health and safety of our staff and clients and are therefore limiting face to face meetings and facilitating home working where possible. That being said, we remain open for business to support our clients. If you require any employment related advice, please do not hesitate to contact Kate Brooks on kate.brooks@ellisjones.co.uk or 01202 057754.