The COVID-19 situation is continually changing and the Government and ACAS advice for employers is being updated as the position develops. Employers should keep up-to-date with official advice from the Government and ACAS when considering how best to manage employment issues arising from the pandemic.
This is a very uncertain time for employees and businesses, and communication is key to ensuring that your business can continue in as normal a manner as possible.
There are a number of legal issues that employers need to consider in the context of how they deal with their employees/workers in these difficult times:
- the various legislation, regulations and guidance governing the employment relationship, including matters such as redundancies, sick pay and unfair dismissal;
- their duties under the Health and Safety at Work Act 1974 and other legislation to protect the health, safety and welfare of their employees/workers and others;
- their common law duty to take reasonable care for the health and safety of their workforce;
- contractual terms of employment/service, both express and implied;
- Equality Act provisions relating to discrimination and the need to make reasonable adjustments for the disabled.
Government Strategy and Guidance
Over the past two weeks or so, we have been adjusting to strict new measures, enforceable by the Police.
The current advice remains that people should stay at home to stop coronavirus spreading. The Government and the NHS have stated that this advice includes people of all ages, even those with no symptoms or health conditions.
You can now only leave your home:
- to shop for basic essentials, when absolutely necessary
- to do one form of exercise a day, alone or with other people you live with
- for any medical need, for example, to visit a pharmacy or deliver essential supplies to a vulnerable person
- to travel to and from work, only where this is absolutely necessary
People also need to maintain a distance of 2 metres from other people, to help prevent the spread of the virus, if they do leave their homes for any of the above reasons.
This is known as ‘social distancing’. In addition to the above general guidance which applies to everyone, individuals may fall into one of two categories – those needing to ‘self-isolate’ and those needing to ‘shield’.
The most common symptoms of Coronavirus are:
- a new, continuous cough; and/or
- a high temperature
If someone exhibits either (or both) of these symptoms, the Government policy is that they should self-isolate for 7 days, or until the raised temperature has gone. This means that they should not leave their house and should limit contact with people within their household as much as possible.
Anyone who lives in the same household as someone who has these symptoms, must follow the stay at home guidance, meaning they must stay at home for 14 days.
Anyone who is at high risk of getting seriously ill from coronavirus should take extra care, called ‘shielding’.
This is guidance for the protection of those people who may be particularly vulnerable to catching the virus or likely to be more severely ill if they catch it.
Those at high risk from coronavirus include those that:
- have had an organ transplant
- are having certain types of cancer treatment
- have blood or bone marrow cancer, such as leukaemia
- have a severe lung condition, such as cystic fibrosis or severe asthma
- have a condition that makes you much more likely to get infections
- are taking medicine that weakens your immune system
- are pregnant and have a serious heart condition
All those at high risk will be contacted by the NHS with further advice. Some have already received a letter from the NHS and we understand that a further round of letters will be sent to others at high risk.
Shielding means that these individuals are strongly advised to stay at home at all times and avoid any face-to-face contact for a period of at least 12 weeks from the day they receive their letter.
Those who live with someone who is shielding do not need to shield, but they should continue to follow the social distancing measures which apply to all citizens. Clearly, this new strategy is already affecting the workplace severely, and will continue to raise a number of questions for all employers:
Should employees be required to comply with Government guidance?
Yes, we should all comply with this new guidance. Employers should introduce rules, or issue instructions, making it clear that any employee falling within one of the groups advised to self-isolate or stay at home (due to living with someone who has symptoms) should refrain from attending work. Employees who are in an extremely vulnerable group and should be shielded must be supported to stay at home
An employee who refuses to comply with a reasonable instruction to remain at home would breach their own duty of trust and confidence and their personal duty under HASAW to take care of their own health and safety and the health and safety of others.
My business remains open – what do I need to do?
Guidance published on 7 April lists a number of things employers need to consider and implement to ensure safety in the workplace, including social distancing in the workplace, consideration of staggering shifts to reduce the number of employees working in the same place at the same time, signage, and other practical matters. You can read the guidance here.
What if an employee has symptoms or has been diagnosed with the virus?
If anyone becomes unwell with a new, continuous cough or a high temperature in the workplace, they should be sent home immediately. They should return home quickly and directly. If they have to use public transport, they should try to keep away from other people and catch coughs and sneezes in a tissue.
If a member of staff has helped someone who was taken unwell with a new, continuous cough or a high temperature, they do not need to go home unless they develop symptoms themselves. However, they should wash their hands thoroughly for 20 seconds after any contact with someone who is unwell with symptoms consistent with coronavirus infection.
Current guidance is that there is no need to close the business, or send other staff home, unless you have been specifically advised to do so. Be aware, however, that other employees may well be concerned in such circumstances and pay particular attention to the concerns of vulnerable individuals.
Are employees entitled to be paid during a period of self-isolation?
Statutory Sick Pay rules have been extended to cover those who self‑isolate in accordance with government guidelines. In addition, the government indicated it will extend SSP to those caring for others within the same household who were exhibiting symptoms.
SSP will now be payable from the first day of sickness absence.
ACAS has confirmed that employees and workers must receive any Statutory Sick Pay (SSP) due to them if they need to self-isolate because:
- they have coronavirus
- they have coronavirus symptoms (high temperature or new continuous cough)
- someone in their household has coronavirus symptoms
- they’ve been told to self-isolate by a doctor or NHS 111
If someone has symptoms, everyone in their household must stay at home for 14 days (also known as self-isolation).
Where contractual sick pay is offered rather than SSP, then employees will generally be entitled to this contractual rate. Consideration may need to be given to how to amend such terms if the burden of making such payments is excessive – this is not necessarily a simple process.
It may now also be possible to furlough an employee who is self-isolating or otherwise on sick leave, but not if SSP is being paid. This scenario is a little more complicated and guidance in this respect is changing. If you wish to consider furlough in these circumstances, please contact us to discuss whether you are able to do so.
Are Employers able to recover Statutory Sick Pay costs?
If an employer employs 250 staff or less, then those employers will be able to recoup statutory sick pay costs for up to 14 days for those who have been asked to self-isolate or are diagnosed with the virus. For larger companies with more than 250 staff, those employers must currently meet the costs themselves.
What if an employee is shielding?
If a member of staff is shielding, they will not be entitled to sick pay or SSP. The situation and what you can do will depend on the terms of your employment contract. However, these may include unpaid leave or furlough (see further below).
The rules around furlough, in particular, are complex and new guidance is emerging continuously. We recommend that you contact us to discuss what you are able to do in this situation.
What if an employee wants to take time off because their child’s school has closed due to COVID-19 or their child has to self-isolate?
All schools in the UK have now closed indefinitely. Bearing in mind that exams due in May and June will not take place, it is anticipated that such closures may well last until the new school year in September.
Employees are able to take time off to care for their dependants. An employee must inform their employer as soon as reasonably practicable of the reason for their absence and wherever possible how long they expect to be absent.
In normal circumstances, such leave is intended for short periods, and there is no statutory right to be paid although there may be some form of contractual right.
If the employee can work from home during school closures then they would be paid as usual. Employees may consider taking this time as holiday and normal annual leave processes and pay would also apply. It may be appropriate to consider introducing a voluntary special leave policy on a temporary basis where individuals can opt to take paid or unpaid leave. It is now also likely to be possible to furlough employees who are unable to work from home (see further below).
Obviously, this may have a significant impact on the availability of a large part of the workforce and it may be that regulations are introduced to deal with matters such as pay during such absence and other related issues.
What if an employee does not want to go to work because they are anxious about COVID-19?
Many employees are now working from home, and given the tougher new guidance to only travel to and from work where this is ‘absolutely necessary’, homeworking should be put in place unless it is unavoidable. Those in a high risk category will be unable to leave their homes for a period of at least 12 weeks, regardless of whether they wish to attend work.
If the employee is not in one of the groups who should self-isolate or shield, the employer must listen to the concerns of the employee, especially in light of its obligations to take reasonable steps to provide a safe working environment.
What if an employee does not follow COVID-19 hygiene rules?
Employees are required to follow reasonable management instructions, which can include instructions to follow Government guidance. If an employee does not comply, the employer will be entitled to take disciplinary action. Make sure you provide adequate washing facilities and products including soap and hand sanitisers.
What if an employer does not enforce COVID-19 hygiene rules or permits an employee who should be self-isolating to attend work?
In light of the employer’s statutory and common law obligations to protect the health and safety of its workforce, as well as the obligation to maintain mutual trust and confidence, an employee may resign and claim constructive dismissal where they consider their employer has not taken reasonable steps to ensure their safety.
How should employers handle attendance management policies at this time?
If a period of absence is caused by COVID-19 infection or self-isolation, or shielding advised by the NHS, then it is likely to be unreasonable to take management action based on attendance thresholds.
Sickness Absence Certification
As most GPs will no longer see patients with any symptoms, other measures have now been introduced.
Legally, medical evidence is not required for the first 7 days of sickness. After 7 days, if employees have symptoms of coronavirus and need to stay at home, they can use the 111 online coronavirus service to get an isolation note. However, employers may use their discretion around the need for medical evidence if an employee is staying at home.
The Government strongly suggests that employers use their discretion around the need for medical evidence for a period of absence where an employee is advised to stay at home either as they are unwell themselves, or live with someone who is, in accordance with the public health advice issued by the Government.
How does COVID-19 affect work-related travel and overseas assignments?
FCO advice is that UK citizens do not travel to any other country. It would therefore be entirely inappropriate to even consider such travel or assignments.
Can an employer place restrictions on personal travel?
Personal travel is currently unlikely, as the FCO advises British people against all non-essential travel worldwide. This advice took effect on 17 March 2020.
Working from Home
The government has advised that staff should now work from home unless it is ‘absolutely necessary’ for them to travel to and from work. If an employer and employee agree to working from home, the employee will generally be paid their salary as usual (although many employers are seeking to agree reduced pay or short-time working with employees).
Obviously, there are other considerations relating to health and safety matters and data protection when working from home, but it remains to be seen as to whether, or not, there will be any appetite to punish businesses for any transgressions of normal rules during extraordinary times.
Covering Absence by using Annual Holiday
Employers are able to tell their employees and workers when to take their annual leave. It may be necessary to insist that holiday is taken at a specific time. Employers will need to give their employees prior notice of at least twice as many days as the amount of days they will be taking. For example, if they want employees to take 10 days holiday, they should tell everyone at least 20 days beforehand that they are required to take such holiday.
Lay-offs and short-time working
Shops selling ‘non-essential goods’ have now been instructed to close and libraries, playgrounds, outdoor gyms and places of worship are also now closed (along with many other businesses).
In such circumstances, many employers will find it necessary to send staff home or to ask them to reduce their contracted hours. Strictly speaking, unless contracts provide for such action, then employees have to be paid as normal. In some circumstances, however, employers may be faced with little choice but to pursue such a route and simply elect to take a risk of subsequent action at a later date.
Coronavirus Job Retention Scheme and Furloughed Workers
The Government has introduced the new ‘Coronavirus Job Retention Scheme’ to provide financial support to employers to help them continue to pay employees’ wages where the business has been severely affected by the current pandemic.
To access the scheme, employers will need to designate relevant employees as ‘furloughed workers’. The employer needs to get agreement from the worker to do this, unless this is covered by a clause in the employment contract. When faced with the options of redundancy (in some cases where no redundancy pay is available) or being sent home without pay, it is likely the employee will agree to being ‘furloughed’ in order to receive 80% of their salary.
Furlough agreements between employer and employee should be in writing, ideally including the date the furlough starts, when it will be reviewed and how contact will be maintained. No work can be carried out by the employee whilst they are furloughed, but they will continue to be employed. Employees may wish to be classed as furloughed, but the employer must agree that this applies in each case. Records must be retained for at least 5 years.
Employers will be able to access payments via HMRC’s new portal system, which is currently being developed. HMRC will reimburse employers 80% of furloughed workers wage costs, to a maximum of £2,500 per month. The scheme is initially in place until 30 May 2020.
As stated above, the rules and guidance around this scheme are being continually developed. At the time of writing, there is still a lack of clarity in relation to how certain aspects of the scheme will operate. However, new and updated guidance is emerging daily so please contact us to discuss the most up-to-date position.
Coronavirus Business Interruption Loan Scheme
If employers need short term cash flow support, they may be eligible for a ‘Coronavirus Business Interruption Loan’. The government has announced this new loan scheme to support SMEs with access to loans, overdrafts, invoice finance and asset finance of up to £5 million and for up to 6 years.
The government will also make a Business Interruption Payment to cover the first 12 months of interest payments and any lender-levied fees, so smaller businesses will benefit from no upfront costs and lower initial repayments.
The government will provide lenders with a guarantee of 80% on each loan (subject to pre-lender cap on claims) to give lenders further confidence in continuing to provide finance to SMEs. The scheme will be delivered through commercial lenders, backed by the government-owned British Business Bank. There are 40 accredited lenders able to offer the scheme, including all the major banks.
Employers will be eligible for the scheme if:
- their business is UK based, with turnover of no more than £45 million per year
- their business meets the other British Business Bank eligibility criteria
To apply, employers should talk to their bank as soon as possible.
Support for larger firms through the COVID-19 Corporate Financing Facility
The government has also introduced the new COVID-19 Corporate Financing Facility, where the Bank of England will buy short term debt from larger companies.
This will support your company if it has been affected by a short-term funding squeeze, and allow you to finance your short-term liabilities.
The scheme is now available for applications and more information is available from the Bank of England.
PLEASE NOTE – information on COVID-19 is changing on a daily basis. These notes are prepared for reference only and should not be relied upon as formal legal advice.
Written by our employment team.