We are receiving many enquiries from both employers and employees about the issues which have arisen because of the coronavirus pandemic and the recent Government guidance. We therefore thought it would be helpful to provide some guidance on frequently asked questions.
We understand that the Government is continuing its consultations in relation to further employment protection plans. As a result, it is possible (and indeed likely) that there will be some changes to the current employment law position. We will provide further updates as changes come through.
What pay are employees entitled to if they are ill or self-isolating?
If any employee is unable to work due to symptoms of the coronavirus they should be paid enhanced contractual sick pay (ECSP) or statutory sick pay (SSP) as normal provided they qualify under usual rules. People who have symptoms of coronavirus are currently being advised to self-isolate and therefore are not likely to be able to obtain a fit note from their doctor. Employers should bear this in mind and act reasonably in the circumstances.
A temporary change is now in place so that employees will be paid SSP from day 1 instead of day 4 if they are affected by the coronavirus.
Employees who do not qualify for SSP may be entitled to Universal Credit or Employment and Support Allowance.
SSP has also been temporarily extended to cover employees who are unable to work because they are exhibiting mild symptoms of coronavirus and are self-isolating in accordance with NHS/Public Health England guidance. This will also cover employees who are following guidance to self-isolate because someone in their household is exhibiting coronavirus symptoms.
Legislation is due to be introduced to assist small- and medium-sized businesses to reclaim SSP paid for sickness absence due to the coronavirus.
Can employees be asked to work from home?
Current advice is that employees should work from home where possible. Employers should therefore facilitate this where possible. Employees who are working from home should be paid their normal pay. This is different to a situation where the employee is unfit to work due to symptoms of coronavirus in which case the sick pay regime would apply.
What happens if an employee needs time off to look after children or other dependants?
Employees have a statutory right to time off to assist their dependants during an unexpected event or emergency. This would apply to the current situation we find ourselves in because of the coronavirus and the closure of schools and nurseries.
Employees do not have a right to be paid for this time off and so this will be a matter for the discretion of the employer or down to their contracts and policies. Employees may wish to use holiday entitlement during such periods.
If employees are able to work from home at the same time as undertaking these caring responsibilities, they should be paid for that work. Employers may need to negotiate with their employees as to the appropriate level of pay in any particular case.
What if any employee does not want to come to work due to concerns about coronavirus?
Employers should consider the concerns of the employee and discuss the matter with them. If homeworking is a possibility, this should be offered. Employers are not obligated to agree to holidays and unpaid leave and so this is a matter for the employer’s discretion.
Can an employer temporarily lay-off employees or reduce their hours if there is not sufficient work, there is a temporary business closure or the employer wants an asymptomatic employee to self-isolate?
Employers can do this if the employee’s contract of employment allows it. Otherwise, it would be a matter for agreement between the employer and employee. Usually the issue is whether the employee will be paid rather than whether the employee objects to being asked to stay home.
Would the employee be entitled to be paid in these situations?
Employers do not have the right to suspend employees with guaranteed hours without pay unless the employee’s contract of employment permits it.
If the contract of employment does allow the employer to temporarily lay-off the employee, the employee may be entitled to something called a statutory “Guarantee Payment”. The rates are not high; the maximum payment is £29 per day for up to 5 days without work in any 3 month period.
If there is no right of lay off or short-time working in the employee’s contract of employment, they are entitled to be paid their normal pay unless the employee and employer agree otherwise. Employers and employees are of course entitled to agree temporary changes to contract to deal with problems cause by the coronavirus.
What about employees on “zero-hours” contracts?
It is possible that employees on contracts with no normal minimum hours can potentially be suspended on no pay or reduced hours. Employees or workers affected by this may be able to claim Universal Credit or Jobseekers Allowance.
What about redundancies?
Unfortunately there may be cases where redundancies have to be considered by employers. Employees with more than 2 years’ continuous service would be entitled to statutory redundancy pay and notice pay. In the awful event of an employer being insolvent, the employee can get further information at: https://www.gov.uk/your-rights-if-your-employer-is-insolvent.
There are reports that the Government is continuing to discuss further legislative changes that could be brought in to alleviate the difficulties being felt now by businesses and employees. We have heard mention this morning of the possible introduction of a new benefit to be paid to affected employees and workers. If this is introduced it will hopefully provide at least some assistance to those employees, workers and self-employed people who now find themselves suddenly without an income.
For further information we suggest the following:
The UK Government website has information to assist employers and employees, as well as guidance on support available for businesses. Please go to https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19 for further information.
Citizens Advice Bureau: https://www.citizensadvice.org.uk/health/coronavirus-what-it-means-for-you/
Public Health England: https://www.gov.uk/government/organisations/public-health-england
There are various podcasts available covering the coronavirus and providing daily updates
You can also contact Fraser Dawbarns employment team for further information and guidance.
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