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Coronavirus: Advice for employers

At a time of such uncertainty, it’s important to use relevant up to date information. Make sure when searching online, you are using reliable, trusted sources when researching ‘coronavirus: advice for employers’.

Tom Evans, Head of Employment and HR at DTM Legal commented:

“This is an unsettling time for businesses across the north west and the UK. Unfortunately, a lot of misinformation is circulating on social media and many people aren’t sure what to believe. It’s important to refer to trusted, reliable sources to help you identify the best possible solution for your business.”

In light of the recent pandemic of Covid-19, our latest update focuses on employer’s advice to employees. Our advice is as follows:

Practicalities:

  1. Ensure you keep up to date with the Government guidelines.
  2. If you are client facing, try using video calling or telephone calls instead. This will ensure the Government guidelines of ‘social distancing’.
  3. Ensure employees that are essential and cannot work from home are familiar with the Government health guidelines for washing hands thoroughly and frequently, disposing of tissues after use, sneezing into elbows, using hand sanitizers and wiping surfaces clean. Ensure any employees working along others are keeping 2m distance.
  4. Employers should, as a matter of priority, review and, if necessary, update their sickness policies and ensure flexible and remote working policies are sufficiently robust to deal with any future measures relating to coronavirus

Asking employees to work from home:

Whilst this has been advised by the Government and we do not anticipate there will be much backlash from employees being asked to work from home, there is always a risk of a breach of contract/ unlawful deduction from wages and constructive unfair dismissal claims (for those with 2 years or more continuous service who resign in response to the allege breach of contract) claims as a result of varying terms of employment. If you have a mobility clause in your contracts, there is potential to argue that homeworking is a change to the place of work and the company has the right to make this change without varying the contract, especially as there is no change in pay. This contractual right is always subject to it being exercised reasonably, which given the current state of affairs I think we are safe in assuming we are acting reasonably. Even if there is no mobility clause it is likely to still be reasonable in this current crisis to tell employees to work from home on full pay. If you look to make detrimental changes such as change hours of work. Reduce pay then this would be a variation of contract and our advice would be to seek consent of employees prior to the change. Assuming you are proceeding with home working on full pay as above, there are the following issues to consider briefly:

  1. Health and safety: under statutory regulation and implied terms in your contracts, an employer has to take reasonable care to provide a safe system and environment of work, the best way to approach this is to ask the employee to check it is safe to work from home, we assume there will not be much of an issue, if they insist it is not safe, we recommend asking why and look to resolve. Ideally a workplace assessment would take place for employees working from home however in this current crisis that will likely not to be possible.
  2. Equipment: if your employees just need to work on a computer/phone and maybe with a printer, it is possible you will need to contribute money towards printer paper, electricity bills etc. Many employees will be saving on commuting e.g petrol or train tickets, so you can look to offset one cost from another, obviously in different
    circumstances for example if someone has already bought a yearly pass etc.
  3. Monitoring staff: This is difficult, you can bring in monitoring of outputs and emails but that introduces new complicated issues, the reality for the next couple of months is that most employers would rather have staff at home doing 50% of the work productivity rather than sitting home being paid for doing none of it. Also bear in mind the majority of staff working from home will be massively grateful that they are being paid, as opposed to being in different industries where this is not possible and will not be looking to ‘slack off’, they will be looking to do best job they can to try and avoid the risk of future redundancy and the being selected for lower levels of productivity.
  4. You should make clear to all staff that the measures are strictly temporary and will switch back to usual arrangement as per their contracts of employment.

Lay off’s and Short time working

  • Lay off and short time working: lay off is a form of temporary redundancy where a business can explain they have no work for employees and to go home without pay, short time is where a business has less work therefore will offer and pay for the lesser work. In order to send people home on lay off or short time, there does need to be an express clause in the contract that permits this, you cannot generally imply the right to lay off. If this is in your contracts of employment, employees are still entitled to guaranteed payment (or full pay if the contracts say this), this is merely £29 per day and £30 from 6th April, there is a max of 5 days of guaranteed payment payable in a rolling 3 months period so max payment of £145 per 3 months £150 after 6th If an employer has laid someone off, holiday continues to accrue and if an employee isn’t available to work anyway for example if they are sick they will not be treated as being laid off.
  • If somebody is laid off or on short term for either 4 consecutive weeks or for 6 weeks in a rolling 13 week period, the employee is entitled to resign and treat themselves as dismissed on grounds of redundancy meaning a statutory redundancy payment is payable, obviously they need 2 years employment.

Coronavirus Bill 2019-2021

On 17 March 2020, the government published details of the Coronavirus Bill 2019-2021 and set out proposed emergency legislative measures to address the outbreak. The legislation will be limited to two years. Not all measures will come into force immediately, the following measures are of interest:

  1. Employees and workers will be able to take emergency statutory volunteer leave in blocks of two, three, or four weeks’ unpaid leave. A UK-wide compensation fund will be established to compensate for loss of earnings and expenses incurred at a flat rate for those who volunteer through an appropriate authority.
  2. SSP is allowed to be claimed from the first day of incapacity, which will have retrospective effect from 13 March 2020.
  3. Employers with fewer than 250 employees can reclaim SSP paid in respect of the first 14 days of COVID-19-related sickness absence, which will have retrospective effect from 14 March 2020.

Wages and pay issues

There are a number of issues regarding pay that arise for employees affected by Coronavirus, that we explore in turn below:

  • In what circumstances is SSP payable? In order to qualify for Statutory sick pay (SSP) an employee must be absent from work due to incapacity. Where an employee has not, at the point they are suspended, either been diagnosed with COVID-19 or exhibited symptoms, it is unlikely that their absence will meet the definition of day of incapacity in section 151(4), Social Security Contributions and Benefits Act 1992.
  • If an employee is sick with Coronavirus: they should be paid statutory sick pay (SSP) as normal for sick employees.
  • If an employee has a child sick with Coronavirus and employee needs time off to care for them: this will constitute dependent leave and will be paid in accordance with your dependant leave policy.
  • If an employee is returning from Italy/affected areas in the near future: the Government guidance at the moment states that employees should return, self-isolate and then check Gov guidelines for next steps, then if the Government or a doctor advises an employee or worker to self-isolate for a certain period, they should receive. Statutory Sick Pay (SSP) due to them. As per Boris Johnson’s most recent announcement SSP should be paid from day 1 rather than day 4. The Government guidance states that any person coming back from those areas must self-isolate and ring NHS 111 for further guidance on next steps. Please note that if employees are able to work from home they should be paid their usual wage.
  • If a medical practitioner tells an employee to self-isolate or go into quarantine despite being well enough to work: The starting point is whether the employee is able to work from home. If so, the employee should be paid. If they cannot work from home then they are deemed in accordance with the Regulations to be incapable of work, and so are entitled to statutory sick pay.
  • If the employee chooses to self-isolate e.g because they are worried about catching Coronavirus, have returned from an area that may be affected or are just a vulnerable person e.g. over 60 or with cardiovascular disease: there is a debate regarding whether they are entitled to SSP, our advice would be that it would be good practice to pay SSP so that employees are not economically incentivised to return to work and potentially spread the virus.

Where can I find reliable information on Covid-19?

England: Gov England 

Wales: Gov Wales 

Scotland: Convid 19 Guidance

World Health Organisation: Coronavirus 19 Updates

Acas Guidance https://www.acas.org.uk/coronavirus

Further to that this information is only true of today’s date 26/03/2020 and may significantly change.

For more information, contact Head of Employment & HR, Tom Evans.

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