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 £30.00 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.
What Is the Guidance in Relation to Vulnerable People Shielding?
Everyone in England, including those who are clinically extremely vulnerable, is required to follow the new national restrictions from 5 November 2020, which have been set out by the Government and apply to the whole population. These restrictions:
- require people to stay at home, except for specific purposes
- prevent people gathering with those they do not live with, except for specific purposes
- close certain businesses and venues
These new shielding measures will apply nationally for 4 weeks up to 2 December. At the end of the period, the Government will look to return to a regional approach and will issue further guidance at the time.
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.
What Is the Definition of Clinically Extremely Vulnerable?People who are defined as clinically extremely vulnerable are at very high risk of severe illness from COVID-19. There are 2 ways you may be identified as clinically extremely vulnerable:
1.You have one or more of the conditions listed below, or
2.Your hospital clinician or GP has added you to the Shielded patients list because, based on their clinical judgement, they deem you to be at higher risk of serious illness if you catch the virus.
If you do not fall into either of these categories and have not been informed that you are on the Shielded patients list, follow the new national restrictions from 5 November 2020.
If you think there are good clinical reasons why you should be added to the Shielded patients list, discuss your concerns with your GP or hospital clinician.
Adults with the following conditions are automatically deemed clinically extremely vulnerable:
- solid organ transplant recipients
- those with specific cancers: •people with cancer who are undergoing active chemotherapy
- people with lung cancer who are undergoing radical radiotherapy
- people with cancers of the blood or bone marrow such as leukaemia, lymphoma or myeloma who are at any stage of treatment
- people having immunotherapy or other continuing antibody treatments for cancer
- people having other targeted cancer treatments that can affect the immune system, such as protein kinase inhibitors or PARP inhibitors
- people who have had bone marrow or stem cell transplants in the last 6 months or who are still taking immunosuppression drugs
- those with severe respiratory conditions including all cystic fibrosis, severe asthma and severe chronic obstructive pulmonary disease (COPD)
- those with rare diseases that significantly increase the risk of infections (such as severe combined immunodeficiency (SCID), homozygous sickle cell disease)
- those on immunosuppression therapies sufficient to significantly increase risk of infection
- adults with Down’s syndrome
- adults on dialysis or with chronic kidney disease (stage 5)
- pregnant women with significant heart disease, congenital or acquired
- other people who have also been classed as clinically extremely vulnerable, based on clinical judgement and an assessment of their needs. GPs and hospital clinicians have been provided with guidance to support these decisions
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 an employee takes annual leave during a period of furlough, the employer will be required to top up the payment received under the CJRS to ensure the employee receives their normal full pay during any period of annual leave. It is also important to note that the Working Time Regulations have been amended to allow employees to carry over annual leave to the next 2 holiday years if they are unable to take their leave due to the effects of COVID-19.
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.