FREQUENTLY ASKED QUESTIONS
What are our obligations to employees?
Employers are under a duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees whether they are in the workplace or at home. In the case of coronavirus, this obligation will include keeping abreast of the latest developments, implementing measures to control the spread of the virus and monitoring of coronavirus related risks on an ongoing basis. Employers also owe additional duties to employees who are disabled in terms of the Equality Act 2010.
What changes have been made to statutory sick pay?
On 4 March the Prime Minister Boris Johnson announced that workers are to receive SSP from the first day off work, not the fourth day as is usually the case, to ensure those who self-isolate are not "penalised for doing the right thing".
On 11 March the Chancellor of the Exchequer, Rishi Sunak, announced that the Government will reimburse smaller employers (less than 250 employees) any statutory sick pay that they pay to employees for the first 14 days of sickness.
Isolation notes (see below) were introduced on 20 March 2020.
Changes have also been made as to who is deemed to be incapable of work for the purposes of sick pay (see below).
If an employee is not sick but in quarantine, self-isolation, shielding or required to self isolate for the purpose of track and tracing should they receive sick pay?
For many employers whose staff are now working from home this will no longer be an issue as they should be able to continue to work (as long as they remain well).
Usually in order to qualify for SSP an employee requires to be incapable of work for health reasons - in other words actually unwell. However on 13 March Regulations were brought into force which mean that anyone who is self-isolating from others in order to prevent infection or contamination with coronavirus in accordance with public health guidance will be entitled to receive SSP. Regulations which came into force on 16 April means those who fall into the extremely vulnerable category and who have been advised to shield are also deemed to be incapable of work for SSP purposes. With effect from the end of May employees required to self isolate for the purposes of the track and trace/track and protect systems are also deemed to be incapable of work and eligible for sick pay.
With company sick pay an employer will usually have some discretion in terms of whether to pay it even if the employee is not actually unwell. Employers whose employees are still needed to attend work premises may want to consider whether refusing to pay sick pay would encourage potentially unwell employees to come to work. However, that would need to be balanced with the financial implications of paying staff if high numbers are likely to be quarantined.
What evidence of self-isolation should I be asking my employee to produce?
An employee who is self-isolating can self-certify for the first seven days of absence in the usual way. After that they can use isolation notes which are available via the NHS website or NHS111 online from 20 March. In Scotland isolation notes can be obtained via nhsinform.scot. It doesn't matter if the employee is self-isolating because they are symptomatic, or because they are living with someone who is.
How do I claim back SSP paid to employees who are absent due to coronavirus?
The UK Government has published guidance on how to claim back SSP paid to employees due to coronavirus. Claims can be made online.
What are our health and safety obligations to employees who have started working from home?
How will you keep in touch?
What work activity will they be doing?
Can it be done safely?
Do you need to put control measures in place to protect them?
However, your obligation to look after health and safety is "so far as is reasonably practicable". What is reasonably practicable will vary depending on the circumstances.
For workers who use VDU's the HSE provide a workstation checklist which can be done at home by the worker themselves.
Lone working can create greater risks where there is no direct supervision so keeping in touch is essential. HSE guidance on protecting lone workers can be found here.
What if an employee needs time off to look after children or family members?
With Schools being closed many working parents will be trying to combine looking after younger children and continuing to support the education of older children with working. Employees who might otherwise have been able to work from home will inevitably have some of their time taken up with childcare.
The right to time off for dependents is unpaid, is intended to be for a short period to deal with an immediate emergency and the amount of time taken must be reasonable in the circumstances. In practice, it may be more difficult to arrange care for relatives when dealing with coronavirus and employees may therefore be unavailable to work for a longer period of time. However, agreement could be reached to use holiday entitlement instead, or to temporarily reduce working hours or to work in a more flexible way (for example working in the evening).
Employees with caring responsibilities (including childcare) can be furloughed, but they cannot undertake any work for the employer during the period of furlough.
What steps can be taken to manage a downturn in business/temporary closure of the workplace due to coronavirus?
There are a number of different ways in which businesses can try to mitigate the impact of a downturn in business and/or a temporary closure of the workplace. Before taking any steps employers should consider the Coronavirus Job Retention Scheme announced by the Government on 20 March. In addition, consideration should also be given to other Government funding (including interest fee business loans) that may be available.
Read more about business support here.
What is the Coronavirus Job Retention Scheme?
More detailed guidance on the scheme was published on the evening of 26 March (and subsequently updated) and our overview of this and the related Treasury Direction can be found here. In broad terms the aim of the scheme is to protect jobs and avoid redundancies, where possible, during the Coronavirus outbreak. Employers can contact HMRC to obtain a grant to subsidise pay for workers who are not working due to the coronavirus situation (subject to the rules of the scheme). The intention is that the Government will pay up to 80% of employees' pay (up to a maximum of £2,500 per month) with the cost of wages being backdated to 1 March 2020. The scheme is to continue until the end of October, however "flexible furlough" where employees can work part-time while employers can continue to claim the CJRS grant for any normal hours the employee does not work will begin on 1 July. Employers will be expected to pay 100% of wages for the hours employees work, and a gradually increasing percentage of wages for the hours they do not work.
Can we require employees to take unpaid leave?
For many employers the introduction of the Coronavirus Job Retention Scheme will have surplanted this question. However for those who are still considering it, no, any employees who are willing and able to work must usually be paid in full (subject to the right to lay-off or short time working - see below). You could consult with them in an attempt to obtain their agreement to taking unpaid leave - while that may not seem likely it may be more palatable than a redundancy exercise.
We recently offered a job to a new recruit but no longer wish to employ them, what can we do?
If the offer has not been accepted then you can unilaterally withdraw it. However, acceptance does not need to be in writing, it could be verbal. If the offer has been accepted then you have contracted to employ the individual and in those circumstances you would need to terminate the contract in the usual way. In practice that means by giving the employee the appropriate notice of termination (either statutory or contractual, whichever is longer).
Do we have to pay employees if we temporarily close the workplace?
Employees who are working from home shoud be paid in the usual way. However, even employees who cannot work from home will usually be entitled to full pay if they are willing and able to work. The exception to this is lay-off or short time working, or the Coronavirus Job Retention Scheme may be an option.
What is lay-off and short time working?
A "lay-off" means that, for a temporary period, no work is provided and no pay, but the employee remains in employment. "Short time working" means that an employer provides less than 50% of the usual contracted hours (with less pay) for a temporary period. Again the employee remains in employment.
Employers are only able to implement lay-offs or short time working if they have an express contractual right to do so or if, in the absence of an express contractual right, if the employee agrees to it (see below).
How long can employees be laid off/short time work for?
As long as there is a contractual right to lay-off/short time work then you can lay off employees for as long as you need to. However, employees may (after 4 consecutive weeks or a total of 6 weeks out of 13 weeks) serve written notice that they intend to claim a redundancy payment. They must still give you their contractual notice and have the necessary two years service to qualify for the redundancy payment, and by giving you notice they would, of course, be terminating their employment.
An employer can serve counter notice stating that it reasonably expects that within 4 weeks of the employees notice being served the employer expects working arrangements to return to normal for a period of 13 weeks.
It is important to note that holiday entitlement continues to accrue during lay off and short time working. Employees can also claim a statutory guarantee payment for up to 5 workless days in a three month period. The maximum rate of pay is currently £30 per day.
What can we do if there is no contractual right to lay-off/short time working
If there is no contractual right then you can consult with employees and seek their express agreement to it. Again, the Coronavirus Job Retention Scheme may also be an option.
Can I make staff redundant?
This is the scenario which the Coronavirus Job Retention Scheme aims to avoid. However for some it may still be necessary. If coronavirus results in either the business closing or there being a downturn in the need for employees to undertake work of a particular kind then you would be in a traditional redundancy situation. In order for redundancies to be fair you would need to consult and, depending on the numbers involved, that could include collective consultation.
Face to face consultation may well be difficult in the current situation and alternatives to face to face consultation may need to be considered such as consultation by video conference or telephone. It is possible to defend claims of failure to consult if it is not reasonably practicable to do so or if it would be futile to do so. However, it would still be necessary to show that in the circumstances the employer has made reasonable efforts to consult. Specific advice should be sought before taking action on this.
Staff with less than 1 year and 51 weeks service will not have protection from unfair dismissal (subject to various exceptions) or a right to a redundancy payment. Terminating the employment of these employees may be a lower risk way of reducing the wage bill quickly but care does still need to be taken (and advice should be sought) as there are certain circumstances where a claim can still be brought notwithstanding the lack of service (such as certain unfair dismissal claims and discrimination claims).
What other resources are available to assist managers?
Scottish business coronavirus helpline 0300 303 0660 (Monday to Friday 08.30 to 17.30).
Health Protection Scotland have also published guidance which includes workplace advice.
The UK Government publishes the latest information and advice at 2pm every day. The UK Government published its Coronavirus: action plan on 3 March and guidance is also available on home isolation. Scotland specific information can be found here.
With the lockdown and the instruction for anyone who can work from home to do so, a number of the FAQ's have become relevant to fewer businesses but we have retained them below for those whose businesses require staff to attend their workplace
Recommended actions to take include:-
- making sure managers know how to spot symptoms of the virus;
- encouraging staff to wash their hands;
- providing hand sanitiser and tissues; and
- asking employees to inform HR if they are travelling to or have returned from an affected area.
What do we do if we believe an employee is showing signs of ill health?
"Presenteeism" (attending work while unwell) is an increasing problem in UK workplaces according to reports over the past couple of years. In the context of coronavirus it is something that needs to be prevented. This is likely to be all the more difficult if, as is being reported, the symptoms are not particularly severe for many people.
If an employee falls ill while at work they should be isolated from other staff members and advised to phone 111 using their own mobile phone if possible.
What action can be taken if an employee refuses to attend work because of fear of catching the virus?
In the normal course there would be no legal obligation to pay an employee who refuses to come to work and it could be treated as a disciplinary matter. However, employers should consider individual circumstances. Is the individual more at risk than the general population were they to contract the virus, or do they live with someone who is at a greater risk. Does the employee have a mental health condition, such as anxiety, which could be influencing their decision making process? Is the individual disabled, and could allowing them to stay away from the workplace be considered to be a reasonable adjustment? Are there practical ways around the problem such as home working or could a period of unpaid leave be agreed?
Should employees be travelling for work purposes?
Consideration should be given to whether there are any reasonable alternatives to travel, be that by conducting meetings via skype or postponing. The UK Government advice on travel should be taken into account as should the personal circumstances of the employee being asked to travel - might they be in a high risk group should they catch the virus? In some cases it may be reasonable for an employee to refuse to travel.
Can we stop employees from travelling on holiday?
Under the Working Time Regulations an employer can issue a counter-notice to a holiday request assuming the required timescales for notice can be met. However, there are likely to be knock on effects of that action for the employee, such as whether their holiday insurance would cover the cost of the cancelled holiday. It would be sensible to discuss the risks with the employee and whether they may be required to go into quarantine on return. Potentially that might require them to take additional annual leave or unpaid leave to cover that period if they still insist on going and depending on the circumstances.
What do we do if a member of staff, who has recently been in the workplace, is confirmed as having the virus?
If the individual has been confirmed as having tested positive then they will already have had contact with the appropriate authorities. It is possible that you may be contacted as public health authorities trace who has had contact with the unwell employee.
The content of this Q&A are for information only and is not intended to be construed as legal advice. You should take advice on specific circumstances.