As the impact of Covid-19 rapidly affects our everyday activities, we provide as below some guidance information on HR/employment matters that is current as at 22nd March 2020.
Temporary changes to SSP rules
The government has announced significant changes to Statutory Sick Pay (SSP) arrangements in relation to the recent coronavirus outbreak.
Normal rules on SSP entitlement for an employee working 5 days or more, is to allow 3 unpaid waiting days i.e. qualifying days that employee is expected to work but is off- sick and the fourth and fifth day would be paid at a daily rate. However, on Wednesday 4th March 2020, Boris Johnson, Prime Minister, highlighted that as a result of the impact of coronavirus, SSP will be paid effective from day 1 of absence so that no employee suffers a financial detriment thus the employee would get the full SSP rate of £94.25 in week 1 if the employee meets the other eligibility criteria for SSP i.e. earning over the lower earnings limit and will be back dated from 13th March 2020.
To bring the above into statutory footing on 12 March 2020, the Government made the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 which provides that qualifying employees who isolate themselves on the basis of advice published by Public Health England or the devolved health authorities will be entitled to SSP. See government website that states “If you are staying at home because of COVID-19 you can now claim SSP. This includes individuals who are caring for people in the same household and therefore have been advised to do a household quarantine” Source: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/covid-19-guidance-for-employees.
The Government currently advises that anyone who shows symptoms of coronavirus infection however mild, should self-isolate for seven days. In addition, it advises that whole households should self-isolate for 14 days and this will be on SSP (where they cannot work from home) and at the end of 14 days self-isolation period where no family member has not become unwell then self-isolation ends as does SSP, but any person with new symptoms would need to stay at home further 7 days. - see: https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance/stay-at-home-guidance-for-households-with-possible-coronavirus-covid-19-infection
Further, on 16 March, the Prime Minister announced that those with serious health conditions will be advised to “largely shield [themselves] from social contact for around 12 weeks.”, that extending to over 70 and pregnant individuals and where employees fall in such categories and are not able to work from home then under the Statutory Sick Pay General Coronavirus Amendment No 2 Regulations 2020, this will be on SSP if based upon advice by Public Health England to self-isolate.
The Government has provided on line guidance for employers and employees that explains that where evidence is required to cover self-isolation or household isolation beyond the first 7 days of absence then employees can get an isolation note as from 20th March from NHS 111 online by completing on line application that can be obtained by going on https://111.nhs.uk/covid-19 but see also using: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/guidance-for-employers and https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/covid-19-guidance-for-employees
Further the Government website guidance states “If you are a small- or medium-sized business, you may be entitled to reclaim the costs of Statutory Sick Pay (SSP) for sickness absence due to COVID-19:
- This refund will cover up to two weeks’ SSP per eligible employee who are either ill or been told to self-isolate because of COVID-19. This is in line with the recommended isolation period. Guidance on self-isolation can be found here: www.nhs.uk/conditions/coronaviruscovid-19.
- Employers with fewer than 250 employees will be eligible. The size of an employer will be determined by the number of people they employed as of 28 February 2020.
- Employers will be able to reclaim expenditure for any employee who has claimed SSP (according to the new eligibility criteria) as a result of COVID-19.
- Employers should maintain records of staff absences, but employees will not need to provide a GP fit note.
- The eligible period for the scheme began on 13 March.
- The government will work with employers over the coming months to set up the repayment mechanism for employers as soon as possible. Existing systems are not designed to facilitate employer refunds for SSP “ see: https://www.gov.uk/government/publications/support-for-those-affected-by-covid-19.
Where an employee is unhappy about the outcome on SSP assessment, the employer can contact the HMRC statutory payment disputes team for an informal opinion on the matter by ringing telephone 03000 560 630.
For staff who earn below the lower earnings limit (casual, terms, zero hours, part time), there is universal credit and contributory employment and support allowance. Information can be obtained from gov.uk/universal credit.
Employers are urged to check their employees’ contractual rights as contractual sick pay is likely to apply to staff absence related to coronavirus especially where full sick pay includes SSP i.e. is topped up to full sick pay. Also, ACAS have indicated that “it is good practice to pay contractual sick pay as the employer has deterred the employee from coming into work”.
As the risk of coronavirus increases on a day by day basis, best practice is to provide all employees with written guidance/policy as to what to do in such situations and sign posting to the relevant Government information on the web.
Employers need to be vigilant and act with due diligence as have a duty of care to ensure no one is at risk thus should complete health and safety risk assessments and to promote good hygiene practices, i.e. wash hands frequently with soap, especially before eating or handling food, after toilet visits, or when hands are contaminated by respiratory secretions after coughing or sneezing. Also, this is a good opportunity to update employee’s emergency details.
Please note that SSP will change and increase to £95.85 on 6th April 2020.
Home working – Risk assessment
Last week, The Health Safety Executive (HSE) published its updated guidance on “Protecting lone workers: How to manage the risks of working alone.” (INDG73 (rev4).
With the current situation with the Coronavirus, the guidance provides useful advice on managing risks and the factors to be considered when assessing risk of lone workers in particular those with pre-existing medical conditions, those whose first language is not English and others who may be affected by their work situation.
There is no legal requirement to conduct a separate specific risk assessment for lone workers hence a general risk assessment can be undertaken that must identify any potential hazards, if they are low, medium and high risks and what steps to be taken to remove the hazard by putting in place control measures.
Together with risk assessments, the employer should agree how to keep in touch with lone workers with the level of supervision needed being a management decision.
Also, under the Health and Safety (Display Screen Equipment) Regulations 1992, employers have a duty to protect employees from the health risks of working with display screen equipment, such as laptops, thus businesses should give consideration to providing employees with training and information to allow them to work from home safely like instructions on how to set up a laptop correctly at home to avoid muscular pain.
Those who can access our online health safety library, we do have a risk assessment template and guidance notes on home working.
School closures
Employers must be prepared to take a more relaxed approach to homeworking and allow employees to work around their childcare responsibilities. The alternative is to encourage staff to use statutory rights for time off to care for dependents, like annual leave or unpaid parental leave (if been in employment with the organisation for more than a year). There is also the option to consider flexible working request were the employee has worked for the employer for at least 26 weeks or more and not made any other flexible working request in the last 12 months. Also, an employee is allowed short term unpaid time off to deal with an emergency involving a dependent who could be a spouse, partner, child, grandchild, parent, or someone who depends on the employee for they care.
Volunteering –Health and social care
Volunteers play a “critical role” in the delivery of health and social care services especially in the care of the most vulnerable in society, such as the elderly, those with multiple long-term conditions, and those suffering from mental health conditions, thus on 8 March 2020, Health Secretary Matt Hancock announced measures to make it easier for existing volunteers in the health and social care system to support the fight against COVID-19 where such employees and workers will be able to take Emergency Volunteer Leave in blocks of two, three or four weeks’ statutory unpaid leave to support the medical effort and an UK-wide compensation fund will be established to compensate for loss of earnings and expenses incurred at a flat rate for those who volunteer through an appropriate authority with the likelihood of employers having to keep the volunteers jobs open for them to return to for a period of four weeks but we await further clarity from the Government on this within in the COVID-19 Emergency Bill (the Bill) ), the second reading of the Coronavirus Bill is scheduled to take place in the House of Lords 24th March 2020 with the remaining stages due to be completed on 25 March 2020.
Layoff /short time
Section 147 (1) Employment Rights Act (ERA) 1996) defines lay-off as where an employee is” not entitled to any remuneration under the contract in respect of the week because the employer does not provide such work for him” but for the employer to impose layoff / short time working, there must be such a clause in the employment contract signed by the employee or in the company hand book ( where the company handbook forms part of the employment contract) and where there is no such provision, to introduce lay-offs or short-term working unilaterally without the employees consent, the employee with over 2 years’ service could resign on constructive dismissal and if successful seek financial compensation award from the employment tribunal and the employer would need to defend the claim that they properly consulted with all staff affected, there were no other options – like home working, unpaid time off and thus on genuine business reasons they were not in substantial and fundamental breach of contract.
Apart from constructive dismissal, an employee could claim for unlawful deduction from wages where pay is reduced or withheld altogether and in some cases compensation for further financial loss. There is a three-month time limit less a day for bringing a claim, but this runs from the last in a series of deductions.
Employers are also reminded that where the unilateral change involves dismissing and reengaging more than 20 employees in a 90 day period then under s. 188 Trade Union and Labour Relations (Consolidation) Act 1992 TULR(C)A 1992 there is a need to go via collective information and consultation procedure ie via Unions and or appointed staff representatives and where such procedures are not followed , employees may have a potential claim for a protective award of up to 13 weeks’ pay.
However, the employer may be able to rely on a ‘special circumstances’ defence to such a claim where employers complied with what was reasonably practicable in the circumstances.
Special circumstances denotes something 'out of the ordinary, something uncommon', “sudden disaster” and coronavirus is likely to fall within this but the availability of the defence will turn on the facts of each case and employers must consult as soon as they become aware that lay –off /short time is to apply.
Where employees agree to lay-off /short time, there is no limit on the period of time. However, redundancy pay can be claimed by eligible employees if the period of lay-off or short-time working (or a combination of the two) has lasted four or more consecutive weeks or six weeks (of which no more than three are consecutive) in a 13-week period.
For redundancy pay purposes, an employee is only treated as on short-time working for any week if he is paid less than half of his normal remuneration. To claim a redundancy payment, an employee is required to serve a written notice on the employer of intention to claim. An employer can serve a counter-notice if it is reasonably expected that the employee would be able to return to work within a period of four weeks.
Where employee is off sick prior to lay-off and sickness absence is continuing or goes off sick during lay off /short time then if it is genuine sickness absence in-particular related to self –isolation on Government advise and guide-lines then SSP would apply.
Please note that employees’ statutory holiday continues to accrue during a lay-off or short-time working period provided the contract is not broken and as it relates to statutory notice and statutory redundancy where the employee is dismissed or resigns during lay-off /short time working they will usually be entitled to be paid their normal salary during the notice period and paid statutory redundancy based on a 12 week average prior to going on lay-off /short time( section 226(4) Employment Rights Act 1996).
Finally, on lay-off, where an employee have been employed continuously for 1 month (includes part-time workers) and is available for work but no work is available then the employee entitled to guarantee pay during lay off or short-time working. The maximum employee can get is £29 a day for 5 workless days in any 3-month period i.e. a maximum of £145, but if an employee earns less than £29 a day they get your normal daily rate.
If employee works part-time, their entitlement to guaranteed pay is worked out proportionally i.e. reduced in proportion to your part-time hours - Section31 Employment Rights Act 1996.
Government plans to avoid lay-off and redundancy with continued pay
For those who are on the pay-as-you-earn system in the private sector and are still employed but do not currently have work ie who would otherwise be laid-off, the Government plan is that they will continue to get 80% of gross wages up to £2,500 a month that be covered by grants from HM Revenue and Customs (HMRC), employers will be able to access grants, by the end of April. These will be backdated to 1st March 2020 and the scheme will last three months at least so as to prevent mass unemployment and maybe extended. Employers who have placed employees on short time working may need to renegotiate with their employees as the scheme only applies if employees are not working and equally those placed on notice of redundancy, it may require mutual agreement to retract the notice as the rationale here is to try to avoid compulsory redundancies. The provision is likely to apply to those on zero hours contract, but we await further guidance on the matter. Also, what is currently unclear is whether the maximum salary can be £2500, and employees will receive 80% of that, or whether employees earning up to £3125 per month will receive 80% of that figure (which is £2500).
Enforced holiday leave
Where employees who are not sick and refuse to agree to lay–off (where there is no contractual right to impose lay-off ) or where the above provision does not apply then such employees can be instructed to take statutory annual leave by their employer, provided that they are given the required amount of notice contained in the contract of employment and if silent, the default position is that twice as much notice as the period of holiday leave to be taken must be given as per Working Time Regulations 1998 ( as amended).
Taking temperature checks of employees
If there is a medical health check policy that imposes an obligation on employees to undergo drugs /alcohol testing by providing a sample, of urine, hair, saliva or blood etc. then depending on the wording of the clause, taking a temperature might be covered by such a clause and if there is no such policy, such temperature checks cannot be enforced upon employees who must agree to it but there would be an implied obligation to co-operate with reasonable management request and where here the employer would have a strong justification defence for requesting the check like on health and safety reasons . Where consent is refused without just cause, the employer could refuse to allow employee into work unless agrees to be checked and although the employee could argue this is a breach of the implied duty of trust and confidence, but to resign and take to employment tribunal would be risky for the employee as the situation on coronavirus is unprecedented where the employer has a duty to protect the whole of its workforce which may outweigh the breach where temperature checks were reasonable in light of the employee’s role and official health advice on precautionary measures at the time and where home working or self-isolation was not possible.
Please note that health data is special category personal data and mindful not to give information that will readily identify someone who is ill/suspected or having the virus.
This is difficult and uncertain time for both employers and employees with matters changing by the day, but we hope the information in this article helps to reassure businesses the options available to them.
