The position in relation to pay depends on the circumstances. If employees are unwell due to the 2019 novel coronavirus disease (COVID-19), then normal sick pay policies and procedures will apply.
If you require employees to stay away from work as a precaution, it is likely that this should be on full pay, as a form of health and safety suspension.
The government has brought into force new legislation which allows all employees who are self-isolating, in order to prevent the infection or spread of COVID-19, to receive statutory sick pay (SSP).
The government has announced that the SSP rules will be amended, so that SSP will be available from day one of absence (rather than day four). At the time of writing, this legislation had not yet been published.
Employers should follow the latest government guidance for employers on COVID-19 and be flexible about evidential requirements for SSP.
Employers should consider utilising alternative working methods, such as flexible working and working from home. Where this is possible from a practical point of view, it will allow a ‘business as usual’ approach, whilst reducing the risk to the workforce and ensuring compliance with health and safety obligations.
Consider whether you need to draft a home working policy now, if you do not have one already. You may wish to review any mobility clauses in your contracts to check whether they are drafted widely enough to cover compulsory homeworking. If not, then you will most likely have to rely on employee agreement.
It will be difficult to impose home working unilaterally, unless there is a very specific risk to employees associated with being physically present at work – for example, if a COVID-19 case has been identified, or if an underlying medical condition would make it unsafe for an employee to be at work.
Remember that your obligation to provide employees with safe equipment and a safe system of work applies equally to employees working from home. You will, therefore, need to ensure that employees are able to work from home safely, as well as effectively.
You may wish to conduct an audit of home working capability amongst your workforce now, so that you understand how easily and quickly large-scale home working can mobilised if necessary.
However, home working will not be an option for many employees.
COVID-19 is affecting the global economy, evoking memories of the 2008 crash. The repercussions for employers could include a diminution in work and the possibility of forced closures of public-facing businesses, such as restaurants, pubs and non-essential retail outlets.
Providing there is suitable contractual provision, an employer can ‘lay off’ an employee, without pay, where there is temporarily no work available. Note, however, that an employee who is away from work because of sickness absence will not be ‘laid off’ because the reason for absence is sickness, not lack of work.
Employees who are laid-off may be entitled to a statutory guarantee payment of up to 5 ‘workless days’ in a three month period. However, an employer may have their own policy in respect of a guarantee payment, which may offer an enhanced rate of payment. However, this is purely discretionary.
The maximum statutory guarantee payment is currently £145, made up of £29 per day for 5 days in any 3-month period, unless an employee earns less than this (in which case it will be at their normal daily rate) or works part-time (the payment being calculated proportionally).
Short-time working allows an employer to reduce the hours worked or the level of pay either temporarily or indefinitely.
If you do not have short-time working or lay-off clauses in your contracts, it may be possible to obtain employee agreement to incorporating these into contracts, as a more palatable alternative to redundancy. Furthermore, a temporary reduction in work under short-time working will not break an employee’s continuity of service, which could make an employee feel more comfortable accepting this option.
A redundancy situation may arise as a result of forced closure of certain businesses, or by a reduction in work caused by large-scale self-isolating and ‘social distancing’. Employees with more than two years’ service are entitled to be taken through a fair redundancy dismissal process, and receive a statutory redundancy payment.
However, given that Covid-19 issues are likely to be relatively short-term, employers may wish to consider options short of redundancy.
One alternative may be to offer employees short periods of voluntary paid or unpaid leave, or an agreed temporary reduction in pay and hours (outside of the short-time working / lay-off scheme outlined above).
Any such arrangement must be agreed in consultation with employees. Be wary of solely relying on any variation clauses in your contracts of employment; these will be subject your duty to maintain employees’ trust and confidence. It will, therefore, be very difficult to rely on any such clauses to impose a contractual change. However, in certain circumstances, it may be possible to use a ‘dismissal and re-engagement’ process in order to force through a contractual variation.
Remember that if you are undertaking a large-scale dismissal and re-engagement process, then collective consultation obligations will bite. The same applies to any large-scale redundancies.
Under the Working Time Regulations, it is possible to require workers to take annual leave at a time specified by the employer. Employers must give at least twice as much notice as the period of leave they are requiring employees to take.
So, during a period of shutdown or a temporary downturn in work, it may be possible to ask employees to use annual leave until the situation returns to normal.
This may, however, be difficult to manage from an employee relations perspective. It would also have to take account of pre-booked leave and would have to be implemented in a non-discriminatory manner.
In the Spring 2020 Budget, it was announced that SSP will also be available for those who are caring for those who have been advised to self-isolate. However, this is not explicitly covered in the new legislation that was published on 12 March 2020. So, those caring for people who are self-isolating will only be entitled to SSP if government guidance changes so that they are also required to self-isolate.
Employees who are off work because they are
may wish to make use of the statutory entitlement to time off to care for a dependant.
There is no statutory right to pay for this time off, but you may pay employees for this time off, at your discretion.
The amount of time off an employee takes to look after someone must be reasonable for the situation. It is intended as a short-term solution to cover an emergency situation. If more time is needed, then you may wish to consider other options, such as home-working, holiday or an agreed period of special leave (whether paid or unpaid).
Contributors: Sarah Maddock and Nicky Beach