General Employment Guidance regarding COVID-19

Coronavirus (COVID-19): Employment Law Issues

This article considers the implications of the current coronavirus pandemic for employers. Obviously, the situation we find ourselves in is unprecedented and constantly changing.  In order to appreciate the most up-to-date position it is vital that professional legal advice is sought before taking specific action.

The implications have already become all too real for many law firms (including DFA Law LLP), with home-working becoming the norm wherever possible.  We are also getting reports of redundancies and lay-offs directly resulting from the current crisis.

As this situation unfolds, our clients have been seeking advice, and below are some of the more common topics.

Entitlement to sick pay

The first thing to check is the employee’s contract or any terms included in a staff handbook (or implied through custom and practice) relating to payment of sick pay for ill employees. Many employers have contractual terms that provide only for the payment of statutory sick pay (SSP), with the possibility of a discretionary payment of contractual sick pay.

If there is no contractual right for an employee to receive their normal salary, then the employee is only entitled to SSP (currently £94.25 per week). Tax and National Insurance will be deducted.

Prior to the current crisis there was no right to be paid for the first three days of sickness absence (referred to as “waiting days”) before the “qualifying days” of up to 28 weeks’ SSP kick in.  Also there would be no right to SSP unless the individual was absent due to actual illness.

However, the government recently announced that they would push through emergency legislation to ensure that waiting days would be suspended for the duration of coronavirus “for people who have COVID-19 or have to self‑isolate, in accordance with government guidelines”.  Once the relevant legislation is in place (details have not yet been confirmed) the intention is that SSP will be payable from day one for:

1. Individuals who are unable to work because they have been advised to self-isolate (presumably regardless of whether or not they have symptoms).
2. People caring for those within the same household who display COVID-19 symptoms and have been told to self-isolate.

Those on casual, zero-hours and agency worker contracts should be able to claim SSP, on the same terms as above, but only if they earn a minimum of £118 per week (averaged over the previous 13 weeks).

Employers (and employees) should be aware that the position in relation to contractual sick pay is likely to be different. Most contractual sick pay policies would not cover absences for self-isolation where the employee is not actually ill.  Instead it will only be payable if an employee is genuinely ill (for any reason including coronavirus).  However, employers may decide to interpret their contractual sick pay provisions in light of the current situation.

School closures

At the time of writing the government has confirmed that all educational setting (including schools and nurseries) will close on Friday 20^th March 2020 for an indefinite period.

Whilst the government has announced its intention to extend SSP provision to employees who have been advised to self-isolate, this does not yet extend to those who take time off for childcare reasons because a school has been closed.

The only options for the employee in those circumstances is to work at home (if they can productively work whilst also caring for children), to use holiday entitlement or seek permission to take parental leave.

Can an employer insist that staff take paid holidays to prevent the spread of infection in the workplace?

Under 15(2)(a) of the Working Time Regulations 1998 (SI 1998/1833) an employer can compel workers to take holidays on particular days. This is often used for factory or Christmas shutdowns. While it may not be popular, an employer could theoretically use its powers under regulation 15(2)(a) to force staff to use their holidays to prevent the spread of infection in the workplace.  However, given the unknown length of the current crisis, this is likely to be of limited use, and in any event, under the WTR an employer is required to give notice of at least twice the length of the period of leave that the workers are being ordered to take (regulation 15(4)(a)).

Can either employers or employees insist on homeworking?

The situation will be clear if there is either a specific homeworking clause in the employment contract or else a contractual mobility clause that is sufficiently widely drafted to include homeworking. However, employers have a duty of care to take reasonable steps to protect employees from foreseeable risks.  As a result, there is likely to be an implied term in all employment contracts that an employer can insist on homeworking in the current circumstances (of a global pandemic).

Unless there is an express contractual term, there is no general legal right for employees to insist on working from home.  However, if the employee can successfully argue that they are in serious and imminent danger by being in the workplace and that they are removing themselves from the workplace accordingly then the situation is different.

Such arguments would need an employee to be reacting to something more than the mere fact of the pandemic.  Instead there would only be a credible argument if there have been actual cases of coronavirus in the workplace, or the employee is in a high risk group (whether due to age or health and particularly if they suffer from a disability that makes contracting the virus much riskier).

Can an employer prevent an employee who refuses to self-isolate from accessing the workplace or from having contact with other employees or clients?

When an employer has reasonable suspicions that an employee may be infected with the virus (whether by symptoms or contact with an infected person) they can insist on that employee not attending the workplace where there is a genuine risk of them infecting other employees.

Indeed, an employer owes a duty of care to other, non-infected or low-risk employees to protect them from the risk of infection and so employers should be proactive in this regard.

However, employers would need to be aware of the legal position that an employee is entitled to be paid if they are “ready, willing and able” to work.

Unless the employer can show that the employee in question is actually infected with Coronavirus (and is thus not “ready” and/or “able” to work) the employee is likely to have a strong argument that they should receive full pay.

Workplace closures, lay-offs and short time working

Unfortunately, for many businesses, the measures taken to combat the virus have resulted in a significant downturn in work.  This is particularly acute for the retail, hospitality and leisure sectors (although many other areas will also be affected).

There is also an impact from staff being off, whether for childcare purposes, self-isolation or infection.

The government has vowed to assist businesses, but the nature, scope and timing of this assistance is not yet entirely clear.

In the meantime, many businesses are facing imminent difficulties due to reduced cash flow.

Whilst redundancies may be the only viable long term solution if the situation continues (or if the proposed assistance from the government is insufficient) employers should consider short time working and / or lay-offs to deal with the immediate crisis.

In a nut-shell, 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. Unlike dismissal, it is a temporary solution to the problem of no or less work.

Employers would only have a right to lay-off employees or put them on short time working if there is an express right to do so set out in the employment contract.  Alternatively, there can occasionally be a right implied by custom and practice – but this would need to be very clear and would not apply in most workplaces.

In the absence of an express or implied right to implement lay-offs or short time working, an employer could consider consulting with employees, explaining the financial difficulties facing the business and asking for agreement from employees.

As long as an employee provides their consent to be laid off without pay or placed on reduced hours (with reduced pay) then this step can be implemented.  Whilst most employees will be very unhappy with this state of affairs, they may consent to it if the alternative is certain redundancy and possible workplace closure.

Employers should note that after a certain length of time (4 continuous weeks or 6 weeks in total averaged over 13) employees who are laid off (and in some cases on short time working) would be entitled to ask to be made redundant and receive a statutory redundancy payment (and any other contractual benefits such as notice pay and accrued but untaken holiday).  Therefore, lay-offs are only a temporary solution.

Advice should be sought prior to implementing any of the above measures, and consideration should be given to whether employees qualify for statutory guarantee payments.  Employers should also be aware that annual leave continues to accrue (at the full “normal” rate of pay) during any period of lay-off or short time working.

DFA Law LLP is available to assist businesses and / or employees who have been affected by the current crises and require employment law advice and assistance in implementing appropriate measures.

Please feel free to contact Michael Nadin on 01604 609 566 or at by email here: michael.nadin@dfalaw.co.uk