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Other legal aspects of Coronavirus

1. Aside from furlough, what other measures can we take to reduce staff or pay?

Some employers may have the right in their employment contracts to “lay off” staff.  This is different from redundancy and provides employers with a contractual right to send people home (for no pay) for a short period of time, where there is an express or implied right in employees’ employment contracts or collective agreements to do so. The employees may be entitled to a statutory guarantee payment from the employer.

Alternatively, and where there is an express or implied contractual right to do so, an employer may have the right to put employees on “short-time” working.  This is when an employee works reduced hours or is paid less than half a week’s pay.

However, the vast majority of employers do not have such terms in their contracts.  If you are fortunate enough to do so then as relying on these provisions requires careful handling, we recommend that you seek legal advice on this.

2. What pay are self-isolating staff entitled to?

Currently, people advised to self-isolate by Public Health England or the NHS (to prevent infection or contamination by COVID-19) include those:

On 13 March 2020 the Statutory Sick Pay (General) Coronavirus Amendment) Regulations 2020 came into force. These provide for payment of SSP to those employees who cannot work because they have been advised to self-isolate.

Those who self-isolate on advice will be entitled to statutory sick pay (SSP) if otherwise eligible.  In these circumstances SSP will be payable from day one of absence. As with ‘standard’ SSP it will be paid for up to 28 weeks and at the current rate of £95.85 from 6 April 2020.

The usual SSP eligibility requirements still apply, including that employees need to earn more than the lower weekly earnings limit for National Insurance liability.  Currently this is £120 per week (from 6 April 2020). The Government has also announced that any employees who are not eligible for SSP but have COVID-19 or are advised to self-isolate, can now more easily make a claim for Universal Credit or new style Employment and Support Allowance.

The NHS (and Government) advice, see here, is that those self-isolating with symptoms of COVID-19 should use the NHS111 COVID-19 service to get an isolation note (see here).  However, those who are self-isolating because they live with someone who has symptoms of COVID-19 can get an online isolation note from the NHS website (see here).  These isolation notes can be provided to employers for proof for SSP purposes.  There is therefore no need for staff to get a fit note from a GP.

Those employees who choose to self-isolate, without advice or symptoms, are technically not entitled to SSP. Employers may still have a contractual obligation to pay in those circumstances, depending on the wording of their employment contracts.  Where there is no such obligation, we recommend following ACAS guidance (available here) which is that employers should listen to staff concerns and their personal circumstances before deciding whether or not to pay sick pay.  Other options an employer could consider include working from home, offering unpaid leave or using up annual leave.

For those who are working from home, ACAS has produced updated (COVID-19) homeworking guidance available here.  The guidance explains that both employers and employees should be practical, flexible and sensitive to each other’s situation when homeworking during this difficult period. It also explains the duties on employers and employees when working from home, particularly regarding health and safety, equipment and technology, setting clear expectations, payment, childcare and expenses.

Employers also have legal obligations to provide a safe working environment in the workplace and under the Equality Act 2010.  If, for example, the employee has a disability which increases their vulnerability to COVID-19, the employer should consider if it can make reasonable adjustments to the employee’s working arrangements.  This may include, for example, agreeing to home-working on full pay, or adjusting their workload to accommodate any increased feelings of stress.

Employers should also be aware of avoiding any discrimination claims for less favourable treatment on grounds of a protected characteristic.  For example, employers should ensure as far as possible that they are consistent in their treatment and payment of employees who ask to, or do, self-isolate.

Finally, as mentioned above within our guide to the CJRS, an employer can still place a self-isolating employee on furlough leave if their role is not required to be performed during the current Coronavirus crisis.  If so, that person’s status will then change to one of being furloughed and it will be immaterial that they are also self-isolating.  They will then gain access to the 80% of pay granted by the CJRS and can cease being on SSP.

3. When can we require employees to self-isolate?

In order to comply with its legal obligation to provide a safe working environment, employers may require an employee to leave the workplace if they should be self-isolating in accordance with the advice of Public Health England or the NHS, or it is reasonably suspected that they are infected, or pose a health risk to other employees in some other way (e.g. they had recently travelled to an affected area).

If the employee who is required to leave the workplace can work from home, they should continue to be paid in the usual way.

If home-working is not an option, the employer should check the employment contract to see if they have the contractual right to reduce the employees’ hours.

Alternatively, the employer could consider insisting that the employee takes some of their annual leave.  Remember that notice from an employer to enforce annual leave must be at least twice the length of the holiday period.

If none of these are viable options, the employer will be obliged to keep the employee on full pay as if they had been suspended, or risk claims for breach of contract and constructive unfair dismissal.  In such a situation the employer would be well advised to re-visit the question of whether such people are genuinely required at work at the moment.  Is there any scope for making the case that they could be furloughed?

4. What about employees with caring responsibilities?

With the schools closed, this is likely to be an issue for a number of your staff.  You may wish to allow those with such responsibilities to work from home.  However,  this is likely to depend on the age of the child, the severity of their symptoms, and whether the employee’s job is suitable for home-working.  Those working from home should be paid in the usual way. ACAS has produced updated (COVID-19) homeworking guidance, available here.

For those unable to work from home, employees have the statutory right to take a reasonable amount of time off work to deal with domestic emergencies affecting their dependants. This is unpaid leave (unless there is anything to the contrary in their employment contracts) and the intention is for the time to be used to deal with the emergency by, for example, arranging alternative care for the dependants.

In normal times, a ‘reasonable amount’ of time off work tends to be seen as a day or two, while more permanent arrangements for care are made.  However, with the closure not just of schools but other childcare facilities, the current emphasis on social-distancing and the Government plea not to use grandparents for childcare, it unfortunately is likely to be very difficult, indeed impossible, for staff to arrange alternative childcare.  Therefore, during the Coronavirus crisis, we expect that Employment Tribunals will be open to seeing a few weeks as ‘reasonable’.  The big downside is of course that such leave is unpaid.

Other alternatives may include requesting the employee to take annual leave; make up their lost hours on return to work; taking unpaid parental leave (up to four weeks per year to be taken in at least one week blocks) or the option of longer extended unpaid leave.

And again, it is worth reviewing the question of whether the employer actually requires their work to be done at the moment, or whether a case for placing them on furlough could be made out.

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