Employment Law and Coronavirus
Employment and COVID-19
The current pandemic is raising lots of employment issues and questions for small businesses. Government legislation is being updated on an unprecedented scale to provide guidance on employment matters and further guidance will be needed as the situation develops.
Here Gill Wooldridge looks at some of the key employment issues currently facing small businesses.
Please contact Gill by email, gill@bradleyhayneslaw.co.uk or on 01905 900939 if you need any employment or HR advice on these or any other issues related to the COVID-19 pandemic.
What is ‘Furlough’ leave?
Under the Coronavirus Job Retention Scheme announced on 20th March 2020, all UK employers will be able to access support to continue paying part of their employees’ salary if they would have been otherwise laid off or made redundant during this crisis.
Changing the status of an employee to be on ‘furlough’ leave is subject to existing employment law and would require consultation and agreement with effected employees. Employees can’t work while they are on ‘furlough’ leave but would remain employed.
A new online portal is urgently being set up by HMRC to facilitate this. Employers will be reimbursed 80% of workers wages (including employers NI and pension costs), up to a maximum of £2500 per month. Employers can choose to pay the difference, but you don’t have to. This scheme is going to be in place from 1 March 2020 for a least 3 months.
HMRC will reimburse 80% of furloughed workers wage costs, up to a cap of £2,500 per month. HMRC are working urgently to set up a system for reimbursement. Existing systems are not set up to facilitate payments to employers.
In what circumstances will employees be entitled to be paid SSP during the pandemic?
In order to qualify for Statutory sick pay (SSP) an employee or worker must be absent from work due to incapacity. Due to the pandemic, the definition of incapacity has been widened to include anyone self-isolating on the grounds of medical advice or to prevent infection. Also where any member of the household or family has symptoms, employees should self-isolate for a period of 14 days and this is also classed as incapacity. The 14 day period starts from the day the first person in the house becomes ill. There will be other individual circumstances where employees will qualify for SSP and business owners will need to take a flexible but consistent approach to incapacity to work.
What changes to the normal rules on SSP and fit notes have been made in light of COVID-19?
The government has announced that it will bring forward emergency legislation temporarily making statutory sick pay payable from the first day of sickness absence with effect from 13 March 2020.
The government has also announced that small employers (with fewer than 250 employees) will be reimbursed for any SSP paid to employees in respect of the first 14 days of sickness related to COVID-19. This will be subject to the usual SSP legislation and to following the required absence reporting procedures within the business. The current rate of SSP is £94.25 and is rising to £95.85 on 6th April 2020.
Employees can self-certify for the seven days of absence but there will be a new temporary alternative to the fit note being introduced which can be used for the duration of the COVID-19 outbreak. This system will enable people who are advised to self-isolate to obtain a notification via NHS 111 which they can use as evidence for absence from work.
In what circumstances could holiday be used by workers to cover periods of absence?
The normal rules on taking annual leave under the Working Time Regulations 1998 will continue to apply. Workers may wish to take annual leave as an alternative where they would otherwise be on SSP or nil pay. Workers are entitled to take statutory annual leave during sickness absence but may not be compelled by the employer to do so.
Workers who are not on sick leave can be instructed to take statutory annual leave by their employer, provided that they are given the required level of notice.
What should an employer do where an employee who is at work starts displaying symptoms?
The government guidance from Public Health England, advise that if anyone becomes unwell with a new, continuous cough or a high temperature whilst at work, they should be sent home and advised to follow the Stay at home guidance.
The guidance advises that, if they need clinical advice, the affected employee should go online to NHS 111 or call NHS 111 from their mobile, or 999 if it is an emergency (if the employee is seriously ill or injured or their life is at risk). If mild symptoms, there is no need to call NHS111 but the employee should self-isolate and follow appropriate guidance.
How should an employer deal with an employee who has severe anxiety and is afraid to attend work?
An employer should be sympathetic to any concerns staff may have and try to resolve them to protect the health and safety of the employee. For example, if possible, the employer could offer working at home, or allow the employee to take holiday or unpaid leave.
An employee with severe anxiety may find their condition is exacerbated by travelling or being in public places due to the increased risk of contracting COVID-19. If their anxiety prevents them from attending work in these circumstances, it is possible that they may be regarded as on sick leave and therefore entitled to SSP or contractual sick pay.
Can we require our employees to work from home?
If there is a strong case to protect the continuity of the business and for the health and wellbeing of the employees, then imposing home working is unlikely to cause a problem. However, please note that where home working is not an established practice then you need employees consent to change their place of work or an agreement to a temporary change of place of work. Where homeworking is being newly introduced then you need to ensure that all the health and safety implications have been considered and that the necessary infrastructure is in place.
If you would like a template temporary home working policy, please get in touch with Gill at gill@bradleyhayneslaw.co.uk
Can we refuse to allow an employee to work from home if they will also be looking after children who have been sent home from school or nursery?
In normal circumstances, it would not be appropriate for an employee to work from home while also providing childcare. However, in these unprecedented circumstances, employers should be prepared to take a more relaxed and flexible approach to homeworking and allow employees to work around their childcare responsibilities.
Can an employer withdraw offers of employment or delay start dates for new recruits in light of the COVID-19 outbreak?
If a contract of employment has been entered into with the new recruit ie they have accepted a formal offer of employment then notice would need to be served in order to terminate the contract before they commence employment, in accordance with their contract of employment. Changing an agreed start date would be a contractual change and could only be made with the consent of the new recruit.
Please contact Gill by email, gill@bradleyhayneslaw.co.uk or on 01905 900919 if you need any employment or HR advice on these or any other issues due to the COVID-19 pandemic.