Is an Employee Entitled to Sick Pay When Self-isolating?
If they are self-isolating in accordance with medical advice, i.e. by receiving a written notice from their GP or as a result of calling 111, they are entitled to sick pay as per their contract of employment. If their contract does not contain any enhanced level of sick pay then they will be entitled to Statutory Sick Pay (SSP). The government has passed emergency legislation to deal with the Coronavirus pandemic which means that SSP is payable from day one, as opposed to day four.
If an employee is self-isolating without medical advice and on their own volition, the right to receive payment will vary according to individual circumstances. Evidently, it is imperative for employers to discuss with their employees in detail the reasons for any proposed self-isolations on a case by case basis – ultimately sick pay provisions should be as per the current government guidance at the relevant time, which may be subject to change at short notice.
It is also possible that the government removes the requirement for a written notice advising to self-isolate as an emergency measure.
If We Require Staff Returning from Overseas to Self-isolate, Do We Have to Pay Them?
This amounts to a medical suspension and they should be paid as normal. We would recommend that you follow government guidance in relation to this and closely monitor the travel of all employees. Where possible it would be advisable to have employees cut down on all non-essential work travel and also be conscious of wider travel restrictions.
If We Have to Close Our Place of Work, Do We Have to Pay Employees?
Unless there is a lay-off or short-time working clause contained within the contract of employment, the employees are entitled to be paid in full.
If there are lay-off/short-time working clauses, an employee is not entitled to full pay.
However, there have also been calls by trade bodies to introduce measures to allow employers to lay employees off or place them on short-time working regardless of what the employment contracts state, thereby allowing employers to not pay employees in these circumstances, contrary to the current legal position. The government has remained silent on the introduction of such an issue.
If an employee is laid off or placed on short-time working, they may be entitled to a statutory guarantee payment (SGP). SGPs are paid on up to five working days in a three-month period. They are subject to a maximum daily rate of £29.00 per day.
Employers should also note that if an employee has been laid off or kept on short-time working (or a combination of both) for at least:
- four or more consecutive weeks; or
- a total of six weeks (of which no more than three are consecutive) in any period of 13 weeks,
then they may be entitled to claim a statutory redundancy payment. For further information please see our employment practical guide to lay-offs.
Do We Have to Pay Employees Who Have to Remain at Home to Care for Dependants?There is no statutory right to payment for employees who take dependants leave. However, they may have a contractual right to payment so contracts/handbooks should be consulted where appropriate.
There is no set amount of time stipulated by law for dependants leave, however, the time off should be necessary and reasonable in the circumstances. The intention is for the time to be used to deal with an emergency, for example by arranging alternative care, but this may be difficult in the current situation.
An employer may choose to exercise its discretion and allow employees to work from home if their caring responsibilities do not impact on their work. In this scenario, they should be paid in the usual way.
If they cannot work from home, then there is no right to payment unless a contractual/handbook provision provides for one, in which case the payment provisions contained therein must be adhered to, otherwise failure to do so would amount to a breach of contract.\
We Have an Employee Who Is Pregnant – Must They Self-isolate for 12 Weeks?At present it is just a recommendation that pregnant people, and other high risk individuals, practice social distancing for 12 weeks, however this is not yet a formal requirement. Pregnant women who can work from home should do so. If they can’t work from home, if their role that can be modified appropriately to minimise their risk this should be considered and discussed with them.
Recent guidance recommends that if you are in your first or second trimester (less than 28 weeks pregnant), with no underlying health conditions, you should practice social distancing but can choose to continue to work in a public-facing role, provided the necessary precautions are taken – these include the use of personal protective equipment (PPE) and risk assessment where appropriate. If you are in your third trimester (more than 28 weeks pregnant), or have an underlying health condition – such as heart or lung disease – you should work from home where possible, avoid contact with anyone with symptoms of Coronavirus, and significantly reduce unnecessary social contact.
Should you have an employee who is pregnant and you decide to send them home due to the risk of Coronavirus, this would amount to medical suspension and they would therefore be entitled to full pay. An alternative could be that they are set up to work from home, if possible.
If they employee follows medical guidance and does not come into work as a result, then the guidance as per the above regarding sick pay will apply. If the employee chooses to self-isolate based on these recommendations alone, then the position on pay is currently unclear and we would suggest monitoring government guidance for updates that are sure to follow.
Can You Lay-off an Employee During Their Notice Period?If you have contractual or implied right to lay-off, yes you can lay off an employee during their notice period. During this time they will be only entitled to Guarantee Pay, as applicable, and will not be entitled to their normal remuneration.
If I Only Need 50% of My Staff, How Should I Choose Who to Lay-off / Put on Short Time Working?Ultimately this will come down to your specific business needs – however you will need to ensure that any decision:
- Is not discriminatory – i.e. only picking the younger/ older staff, staff with disabilities etc.
- Is reasonable in all of the circumstances and you have business reasons that are as fair and objective as possible to support your decision e.g. one department being more business critical than another etc.
You could explore alternatives such as a rota system – for example laying half of staff off one week, then half the next week, and so on.
Who Is Classed as a Vulnerable Person for the Purposes of COVID-19?Below is an excerpt from guidance issued by the Government. The full guidance can be found at the following link: https://www.gov.uk/government/publications/covid-19-guidance-on-social-distancing-and-for-vulnerable-people/guidance-on-social-distancing-for-everyone-in-the-uk-and-protecting-older-people-and-vulnerable-adults
- aged 70 or older (regardless of medical conditions)
- under 70 with an underlying health condition listed below (ie anyone instructed to get a flu jab as an adult each year on medical grounds):
- chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis
- chronic heart disease, such as heart failure
- chronic kidney disease
- chronic liver disease, such as hepatitis
- chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), a learning disability or cerebral palsy
- problems with your spleen – for example, sickle cell disease or if you have had your spleen removed
- a weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets or chemotherapy
- being seriously overweight (a body mass index (BMI) of 40 or above)
- those who are pregnant
Can We Make Employees Take Annual Leave?In short, yes. An employer may give notice ordering a worker to take statutory holiday on specified dates. Such notice must be at least twice the length of the period of leave that the worker is being ordered to take. There are no explicit requirements about the form that this notice must take.An employer may also refuse a worker’s holiday request by serving a counter-notice. This must be given at least as many calendar days before the date on which the leave is due to start as the number of days which the employer is refusing.
If Have Just Offered Someone a Job to Start Shortly, but given the Current Circumstances We Will No Longer Need Them, Can I Withdraw the Offer?If an offer has been made and accepted, then a contract is already in place (even if the employee has not started) and therefore the offer cannot be withdrawn. You could speak with the candidate and see if they are willing to agree to push back their start date, if this would help, or you may have to terminate their employment, serving the relevant notice as per the contract. Depending on when they were due to start, some or all of that notice may be unpaid.
What If an Employee Refuses to Travel for Business Purposes Because of COVID-19?If an employee refuses to travel in breach of their contract, the employer could treat it as a disciplinary matter, but it would be prudent to first investigate the individual’s reasons. If the refusal is based on current Government and/ or medical guidance then it is unlikely that any disciplinary action would be seen as reasonable.
Can the Government Ban Us from Making Redundancies?No. At present there is no legislation to suggest this and it is highly unlikely any such legislation will be forthcoming. Ultimately it comes down to the needs of the business – if there is a business case to support redundancies then there is no reason why you could not do this, subject to following a fair and thorough redundancy process. The Government are simply asking businesses to take into consideration any support that is being offered before making any decision.