UK employers are facing an unprecedented situation regarding how to deal with issues arising from COVID-19 so the purpose of this guidance note is to provide some additional information around the implications of the evolving situation.
We need to emphasise that this is unprecedented, and it is unclear as to how employment law will be applied in these exceptional circumstances. The information that follows has been compiled with input from Acas and other legal professionals, but the reality is no-one really knows for certain how actions that businesses need to take now will be interpreted later.
We strongly advise you to get in-touch with us on 0203 319 1649 to seek tailored guidance before you take any actions. As you can appreciate, we are dealing with a large number of enquiries at the moment so, to aid us in providing an efficient service to you, please have your current employment contract and handbook (if you have one) to hand.
Your options will be heavily influenced by what is stated in your contract and handbook so we will be able to provide the best advice to you if we can refer to these documents when we speak.
Please note, this guidance note focuses only on your options and challenges as an employer. We have produced a second guidance note on the health and safety measures that you should be promoting to employees. Please email email@example.com if you would like to receive a copy of this.
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Q: Do I need to pay employees if they have to self-isolate?
If an employee is told by a health professional that they need to self-isolate or are required to do so under the current government guidelines, then they should be paid SSP from the first day of self-isolation. There is no waiting period.
The government has announced that small businesses (those with fewer than 250 employees) can reclaim all SSP that relates to COVID-19 absence. This includes SSP that is required for those in self-isolation and SSP for individuals who contract the virus.
Note: you can ask for evidence that the individual is absent for COVID-19 related reasons and it is likely that this evidence will be required to support any re-claim of SSP that you make. NHS 111 is able to issue sick notes for this purpose meaning that there is no requirement for individuals to attend a GP surgery.
Q: How do I pay people who are absent because they have contracted the virus?
For those who contract the virus, you should treat the absence as you would any other sickness absence and pay in line with your company sick pay policy. There is also no waiting period for those who are absent having contracted the virus.
Q: What other measures are currently in place?
We are now in what is known as the “delay” phase. The government is now holding a daily briefing on the situation and it’s through these that you will get the most up-to-date information regarding the measures that are in place. As of 16th March 2020 at 5pm, the measures are as follows:
- Everyone should stop non-essential contact with others.
- People should work from home where they can.
- People should avoid places like pubs, clubs and theatres where there is a high concentration of people in one place.
- People should stop all unnecessary travel.
As mentioned above, if people can work from home then you should now instruct them to do so. Please remember that we are not in lock-down. If you require people to be in a particular location in order to be able to perform their duties then you can still ask them to attend work. However, you should be mindful of anyone who has an underlying health condition that makes them more vulnerable to complications from the virus. It is likely that this group of people will be told to self-isolate for potentially 12 weeks from next weekend.
If you require people to be in particular location then you should take extra steps to protect them. Cleaning is very important and employees should be reminded of the guidance on handwashing and using tissues to catch coughs and sneezes.
If schools and other childcare settings are forced to close then you’re likely going to face an added complication of having employees who need to take time off in order to look after their children. You should remember that everyone has the right to unpaid leave in an emergency situation. Whilst it’s typical for this to be limited to a day or two, you may need to allow people to take a longer period of unpaid leave in this circumstance.
You may want to encourage people to use paid holiday during this time. This will mean that when the country re-opens you’ll have a full team. You may have a contractual right to assign holiday during this time. Even without the contractual right, the Working Time Regulations give an employer a right to assign holiday giving twice the amount of notice as to the amount of time you want an individual to take. If you think this is something that you would like to explore then please give us a call.
Q: I have an employee who is very anxious about the situation and wants to stay home. What do I do?
Given the level of press attention that this situation is attracting, it is easy to understand how people will start to feel anxious about the situation and may want to self-isolate just to be on the safe side.
This is a difficult situation to manage and you’ll need to deal with these requests on an individual basis.
The first thing to do is understand whether there is a reason as to why the individual is particularly anxious. It could be that the individual has an underlying health condition that makes them more vulnerable to complications of COVID-19. In this case, consider whether there are actions that you can take to protect them. Can they work from home? Is there a way to alter their hours so they can commute outside of busy times? You do have a duty of care towards your employees and you may want to consider whether the best decision would be to pay the individual to stay home.
If the individual is anxious but doesn’t have an underlying health condition that makes them more vulnerable, then how you manage this will be even more challenging! You cannot offer assurances that the individual will be fine as you’ve no way to know that. In this situation, our recommendation is that you advise the employee that you are following government guidelines and that there is no reason under those for the individual to not come to work. You could consider giving them an option to take paid holiday or unpaid time off but do be cautious as to the precedent that you will be setting.
Q: My business is starting to feel the effects of fewer customers due to Covid-19. What are my options?
The first thing to do is check whether you have a short-time working or lay-off clause in your contract. If you do, then this gives you lots of options in relation to adjusting working patterns or temporarily laying people off. There is a question further down regarding how to exercise these types of clauses.
If you don’t have these provisions in your contract then you have no legally sound way to not pay people. It typically wouldn’t be a problem to send people home but still pay them (whilst it may sound like this would never be a problem please do get guidance around doing this before you take the action). Sending people home and not paying them, however, is unlikely to be something you can do without going through consultation and, depending on the numbers of people involved, this consultation could need to last longer than the problem!
If you need to make temporary changes to working patterns, pay etc. and have no contractual ability to do so, it is vital that you seek additional guidance before you do anything.
Q: I’ve got a short-time working/lay-off clause. How do I implement it?
Again, before you take action you need to get advice as the implementation of short-time working or layoffs will depend on how the clause is worded.
In general, the wording of this type of clause should allow you to move quickly. Communication is always very important and the more you can engage your workforce with supporting you in managing the situation the better. If you are not making changes for everyone then do be very careful as to how you select people. You need to ensure that any approach that you take is not discriminatory in any way. Typically, a good starting point could be to ask for volunteers before moving to a position where you are enforcing changes.
If you do need to lay-people off or alter work patterns, and you have the contractual right to do so, you need to write to the employees to confirm the actions that you are taking and why. If you are laying people off entirely (providing no work or pay at all) then employees have the right to request a redundancy payment after four weeks.
If short-time working or layoff are options you are considering, please contact us before you take any action.
Q: I don’t have a short-time working or lay-off clause but I need to do something. What are my options?
As we said, legally you’re limited but this doesn’t mean that you should not talk with your employees and seek to get their agreement to vary their contracts of employment. Given the situation, employees are likely to be open to making some short-term changes in order to protect their long-term employment.
These are exceptional circumstances and we’d suggest that you start by speaking with your staff and then confirming in writing the options that you are giving them. You can frame this within a redundancy process i.e. options open to you are short-time working, lay-off or redundancy.
Again, before you take action, please contact us for some tailored guidance.
These are very challenging times and we can’t stress enough the importance of open and honest communication with your employees and in getting tailored professional guidance (preferably from us!) before you take any action.
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