CORONAVIRUS UPDATE 04/03/2020

CORONAVIRUS UPDATE 04/03/2020

Following our previous update, things are becoming a little clearer and the government is issuing guidance on things such as Statutory Sick Pay.

There continues to be a dilemma for some employers as to whether self isolation would entitle an employee to sick pay (whether contractual sick pay or SSP).

THE LAW

The government has made statements to the effect that self isolation should entitle employees to SSP. This is not strictly the whole story although in a limited sense it is true.

• An employee who is suffering from symptoms (of any sort) and stays off work may be entitled to SSP (or contractual sick pay). This is normal, they are sick.
• An employee who is malingering, (pretending to be sick when they are not) should be treated the same as before the outbreak of coronavirus. Self isolation, if done honestly, is NOT malingering.
• An employee who is certified by a doctor, or by NHS 111, as requiring quarantine IS entitled to SSP, and should be treated as sick for the purposes of contractual sick pay. This is in accordance with regulation 2 of the Statutory Sick Pay (General) Regulations 1982.
• An employee who is not certified as requiring self isolation, and is not sick, is not entitled to SSP although you may choose to allow payment of SSP rather than risk spreading infection.

GENERAL GUIDANCE

Inform employees that if they are advised to self-isolate, they should get a note from their GP or from NHS 111, and then you will pay SSP.

Steps for an employer to consider

Should an employer remain unaffected by any outbreak then there is of course no need to consider any steps.

In the event however that your business suffers an impact, either because an epidemic reduces customers, or because your ability to do your work is reduced (such as due to a shortage of parts or components), then there are certain steps you can consider.

Redundancy

A reduction in work, even if it is short term, will usually satisfy the definition of redundancy. This means that subject to the correct procedure, an employer can make staff redundant if there is not enough work for them to do.

PRACTICALITIES

If you have a short term reduction, you may find that you cannot meet an upturn in work due to shortages of staff.

Some employers may use such a downturn to clear out what they see as the less desirable section of their workforce.

Note that if proposing to lose 20 or more staff, there are minimum consultation periods to be adhered to before the employer can serve notice.

Forced use of holiday entitlement

If an employer predicts that a downturn will be short term, or will be a small downturn, it might consider serving notice on staff to take holiday. This is perfectly legal, subject to minimum advance notice.

For example, a company suffering a 20% downturn, with 100 staff, could force the use of holiday to meet the downturn without making redundancies.  If it has 20 staff taking holiday for one week, then another 20 staff for the next week and so on, that would make 5 weeks in which the employer can reduce its workforce by 20%.  If two week holidays were used, then this could cover a period of 10 weeks.

MINIMUM NOTICE REQUIREMENTS

The employer must give notice of twice the length of the period of leave being forced upon the employee.  So, if an employer wants to force a week’s holiday, it must give two weeks’ notice.

PRACTICALITIES

It will be worth trying to agree this with the workforce up front. Most employees will co-operate if they understand that it is a measure to save jobs.

Temporary short-time working

An employer can approach a workforce and seek agreement to short-time. Using the same example as above, a company with 100 staff facing a 20% downturn, could ask all staff to reduce to 4 days per week. Spreading those days out across the week would give an overall reduction on employees of 20%.

Agreement would need to be reached unless there is a clause in the contract that allows such a reduction.

Some employers will consider seeking agreement, and running a redundancy programme focusing on those who have not agreed to short-time working.  Subject to individual employee circumstances this would usually be lawful.

If short-time working goes to below 50% of the normal working time, and lasts more than 4 weeks, an employee can give notice and force the employer to make them redundant or bring them back to full time work.

Temporary lay off

Alternatively, if an employer has the contractual right to lay off staff, they could choose to take this step. This could be in the same pattern as above to enable the business to stay open but with reduced staff, or to temporarily lay off all staff and shut the business for a period of up to 4 weeks.

Similar to short-time working, if lay off lasts for a continuous period of 4 weeks or a total of 6 weeks out of 13 weeks, an employee can give notice and force the employer to make them redundant.

Flexible working in terms of physical location or department

If a job is capable of being done from home, then an employer is free to ask the employee to do so, provided it is reasonable in the circumstances. The employer would have to equip the employee, with a computer for example, and meeting the cost of telephone, or even extra heating.

An employee would be entitled to refuse to work from home unless their contract compelled agreement.

Whilst risk assessments are wise for people working from home for the first time, there may be a short delay, subject to the circumstances, in carrying out a risk assessment. This may be tolerable given the rather unusual circumstances. Employees can be asked to carry out their own risk assessment, and this is a sensible measure.

NON ATTENDANCE AT WORK FOR OTHER REASONS

There are any number of reasons why staff may be unable to attend in the event of a widespread outbreak for the Coronavirus. The most common will be the closure of schools, but other factors may become important such as the care of elderly relatives, or a failure of public transport.

THE LAW

Employees are entitled to have unpaid time off to cope with family emergencies. This period of time, (usually up to 3 days) is unpaid by law, although employers are free to pay it if they choose.

The purpose of the leave is to put in place cover for the relative/child/spouse that needs the care.

This is not indefinite leave to provide care.

Alternatively, an employee may request to take parental leave. An employee can take a total of up to 18 weeks’ unpaid parental leave for each of their children, in order to care for that child at any time before the child’s 18^th birthday.

Flexible working requests

It is possible that employers might receive the odd flexible working request to care for family who are not at school, or similar.

Flexible working requests must be considered without unreasonable delay and usually should involve meeting the employee to understand their requirements.

Any change that is agreed in these circumstances is permanent. Not just for the duration of the outbreak.

The right of employees to request flexible working is the right to REQUEST, not a guarantee of acceptance.

Failures in transport

While it may be unlikely, we have been asked what an employer’s obligations are in relation to employees who cannot get to work because the train didn’t have a driver, or the bus route was suspended.

Should this happen, the employer’s obligation is the same as it has always been. It is the employee’s responsibility to get to work and if they cannot they are not entitled to pay.

Do employers have an increased duty of care to employees

At this point we do not think they do, at least legally. The duty of care is the same as it always was.

You must provide a safe working environment within the bounds of what is workable and affordable.

Many employers are taking steps to protect employees. For example, asking customers to leave collections in a specific place rather than the employees having to walk around the customers premises.

Many employers are also reminding staff to wash their hands regularly, and are providing enhanced facilities for this. Simple steps like providing soap and tissues will help, and at this stage is as much as you should do except for special cases.

SPECIAL CASES

One client has asked staff to identify themselves if they have medical conditions which put them in a higher risk category, such as heart disease. They have then taken steps to increase the protection offered to those employees.  This seems like a sensible precautionary step to take, provided of course that there are measures you can take to decrease the risk that staff are exposed to if they identify themselves.