COVID-19 Employment Q&A

We are all being affected by coronavirus in one way or another. The immediate and long-term effect on businesses is sadly unknown. During these unprecedented times, we at CDS Mayfair hope to be able to assist our clients in adapting to the new measures that are being put in place by the government and addressing the inevitable downturn in business.

One issue that our clients have been seeking our advice on is how they should treat their employees and what happens now that they have been forced to close their businesses.

As this unprecedented event continues to unfold, leaving many employers uncertain, we have put together some questions and answers in order to guide you through these uncertain times.

Please note the law in this area is continuously changing with the Governments updates and advice. At the time of writing this is the law as we interpret it.

Statutory Sick Pay (SSP)

Will an employee be entitled to SSP if their absence is related to COVID-19?

As of 13 March 2020, The Statutory Sick Pay (General) Regulations 1982 includes an employee having incapacity in circumstances where:

(i)                 Isolating himself from other people in such a manner as to prevent infection or contamination with coronavirus; and

(ii)               By reason of that isolation is unable to work

Under the Health Protection (Coronavirus) Regulations 2020

Therefore, due to the Government advising to stay at home if someone in their household has symptoms of COVID-19 for 14 days then an employee may be entitled to SSP. This also applies if an employee falls within one of the ‘at risk’ categories given as guidance by the Government.

When is an employee entitle to SSP?

The current Coronavirus Bill that is being debated in the House of Commons is looking to retrospectively (from 13 March 2020) implement SSP entitlement from the first day of absence due to sickness affected by COVID-19.

There are also proposals for the Government to reimburse small businesses (those with fewer than 250 employees) for SSP paid out in in respect of the first 14 days of absence if it is a COVID-19 related illness.

What if our employment contracts offer an enhanced sick pay scheme? Can this be changed to provide only SSP during COVID-19?

This may require varying a term of the employment contract. A variation which affects the amount an employee will receive is likely to need the employee’s consent.

How do we know if an employee meets the requirements to self-isolate?

Due to not being able to go to the doctors a sick note can now be in the form of a notification received via NHS 111. You can request this from your employee.

Sending employees home

Am I able to send employees home from work to self-isolate?

Yes. An employer has the duty to protect employees therefore if someone is infected or you are being cautious, then employees can be sent home, but you need to then consider how the employee will work from home and/or be paid.

Am I able to make employees come to work?

If an employee is in one of the vulnerable categories and you continue to make them go into work, then you could be in breach of your duty of care owed to that employee and/or the implied term of mutual trust and confidence. This could result in a constructive unfair dismissal claim or even a personal injury claim being brought against your company. The latter may only apply should the employee contract the virus as a result of coming into work.

For other employees you need to carefully consider their reasons why they do not wish to attend work and tread carefully. If the employee does not have a valid and/or or reasonable reason for refusing to attend work, then the usual disciplinary rules may apply but we recommend erring on the side of caution.

Are they still entitled to pay?

Yes, if working from home.

If not working from home, then this will vary depending on your reason for sending the employees home.

If this is due to Government imposing mandatory quarantine or detention to stay away from the workplace then you should consider the new Coronavirus Employment Retention Scheme.

Am I entitled to enforce working from home?

If the nature of work, as stated in an employee’s contract, allows remote working then this is enforceable. This is of course subject to the employee being well enough and having facilities to be able to do so.

Remember an employer’s duty of care would apply to employees who are working from home so employers should consider whether there are suitable arrangements for that employee at home.

What if they have COVID-19 or are living with someone that might be symptomatic?

You owe a duty of Health and Safety to your other employees and should consider ensuring those who have COVID-19 or are living with someone that might have it, to self-isolate.

Can I make employees use their annual leave in their absence?

The normal rules regarding annual leave apply. If the employee is not on sick leave, then you could ask employees to take the leave as annual leave. This is for employees to decide, they may do so if they do not wish to be on SSP.

Closing the workplace

When should I close the workplace?

The current guidance from the Government is that you are only able to leave your house for food, health reasons or essential travel to work. The Government has stated that all retailers that sell non-essential goods and other non-essential premises (like restaurants gyms etc.) are to close. In short, this means that non-essential workplaces will close.

I have to close my workplace and my employees cannot work at home – what can I do?

If your employees cannot work at home, then you are left with the conundrum of what to do with employees whose role you need to temporary layoff.

Redundancy may not be an option open to a company as many companies are struggling financial. Making an employee redundant means a company needs to pay a redundant employer their notice pay and redundancy pay.

The Government have launched a Coronavirus Job Retention Scheme which involves employers being able to claim up to 80% of an employee’s salary capped at ￡2,500 per month.

To implement this scheme, you would need to change the status of the employee to ‘furloughed workers’ and may need the employee’s agreement to this. Many employees may agree to this as the alternative would be for their role to be made redundant.

There is likely to be a delay in rolling out this scheme so employers should consider consulting their employees now and, if eligible, applying for a Coronavirus Business Interruption Loan.

Do I need my employee’s permission to pay them through the Coronavirus Business Interruption Scheme?

In order to apply for the Coronavirus Job Retention Scheme then this would entail changing the status of your staff from employees to ‘furlough workers’ and will involve a pay deduction. It is unlikely that the employment contract would allow the employer to unilaterally change the status of the employee and apply pay deductions. You would therefore need your employee’s permission to change their status and pay as it would amount to a fundamental change of a term of the employment contract.

My employees can work remotely – can I still make a claim under the Coronavirus Job Retention Scheme?

The Coronavirus Job Retention Scheme is a new scheme and there is currently little guidance on how it will be applied. The Gov.Uk website describes this scheme to be applicable to employees whose role would otherwise be made redundant. If the employee is able to work at home, then it is questionable whether you could accurately say that the employee would have been laid off as a result of the coronavirus. We consider therefore that you could not apply the Scheme and still expect the employees to work from home.

If you would like to discuss how any of the above topics may affect your business, please contact our employment team. 

Alice Lane

Senior Associate

[email protected]

07824666396

Subir Desai

Partner

[email protected]

07824991653

Whilst care has been taken in the production of this article and the information contained within it has been obtained from sources that Charles Douglas Solicitors LLP believes to be reliable, Charles Douglas Solicitors LLP does not warrant, represent or guarantee the accuracy, adequacy, completeness or fitness for any purpose of the article or any part of it and can accept no liability for any loss incurred in any way by any person who may rely on it. Any recipient shall be responsible for the use to which it puts this report. This report has been compiled using information available to us up to its date of publication