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Victoria Regan

Partner - Brighton & Hove

20th March 2020

Top 10 Employer Questions on Covid-19

Covid-19 is presenting numerous challenges to Employers and the guidance is changing daily. We thought it would be useful to provide answers to the Top 10 most commonly asked questions to date.

1) Can we ask staff to work from home?

Employers have a duty of care to ensure the health and safety of their employees and to provide a safe place to work. Employers also have a duty to provide work. Should you instruct your staff to work from home as a preventative measure, this would most probably be deemed a reasonable lawful instruction (even in the absence of a mobility clause within their contract) given the current situation. It will also be important to consider other issues such as health and safety, GDPR, confidentiality, insurance cover, supervision requirements and possible reimbursements for expenses. It might also be useful to recirculate your homeworking policy if you have one.

Government guidance and measures are being updated daily. Employers should be considering what arrangements can be put in place in respect of home and remote working.

2) What are the entitlements to pay and to whom?

Statutory Sick Pay (SSP) of £94.25 per week (rising to £95.85 per week from 6 April 2020) will be available from day 1 of absence to anyone who:

  • has or may have Covid-19;
  • is required to self-isolate on medical/government advice (even if the employee does not have any symptoms); or
  • is self-isolating themselves and are unable to work.

An employee who is well but is self-isolating  through choice, rather than medical advice or in response to government guidance, will not be entitled to SSP. In such a situation, home working should be considered. However, as below, there maybe legitimate reasons for self-isolating which should be considered.

If an employee is unwell, but for a reason unrelated to Covid-19, they are entitled to receive SSP from day 4 of absence.

Employees who are willing and able to work, but are instructed to stay at home by their Employer, should continue to be paid in full.

3) What do I do if an employee does not want to attend work for fear of contracting Covid-19?

Whilst Employers should check current Government guidance on self-isolation, strictly speaking they can require concerned employees to attend work. That said, there might be genuine reasons for their concerns, such as underlying health concerns, and therefore Employers should discuss their reasons with them before any decision is made. As a last resort, if an employee fails to attend work, without good cause, disciplinary action may follow for unauthorised absence.  However, a more flexible approach could be considered such as homeworking, annual leave or unpaid leave.

It is important to note that if an employer requires an employee with a disability to travel and attend work, or refuses to pay them or threatens to dismiss them if they refuse to attend work, this could amount to discrimination.

4) I am a small business owner, will I receive any refund for SSP?

Employers who employ under 250 employees, shall be refunded by the Government for up to 14 days SSP per employee, from 13 March 2020, if they have been absent due to Covid-19.

5) Can an employee use holiday to cover absence?

Whilst the general rules of taking annual leave will still apply, staff may request to take annual leave as an alternative to receiving SSP or nil pay. They are entitled to request this but cannot be compelled by an employer to do so.

6) What do we do if staff are affected by school/nursery closures?

An employee can take emergency dependency time off (which can be unpaid) in order to deal with an unexpected event or closure. However, this would ordinarily only be for a couple of days in order to organise childcare arrangements. If an employee requests longer term absence, then it might be appropriate to consider annual leave, making the time up at a later period or taking unpaid leave or homeworking if possible.

7) What medical evidence can be obtained?

If an employee has any symptoms, they are being advised to call NHS 111 and not to attend their GP or hospital in order to prevent the spread of the infection. Whilst most sickness absence policies enable employees to self-certify absences of up to 7 days, it might be standard practice to require a medical note for longer periods of absence. In this situation, Employers will need to make an exception to their normal reporting requirements. However, Employers may still require employees to verify sickness absence such as by regular telephone contact and confirming the advice that they have received and that it is being followed.

If an Employer suspects that an absence is not genuine, this will need to be investigated in the same way as any other type of misconduct issue.

8) Do we need to close if someone with Covid-19 enters the workplace?

An automatic closure may not necessarily need to happen. However, employers are advised to contact Public Health England local protections team to discuss the situation and advise on the necessary precautions and cleaning of communal areas. A risk assessment shall need to be undertaken. Employers should however, be putting in place their contingency plans for business continuity in the event that workplace closures are necessary.

9) What adjustments do we need to make to absence management procedures in respect of Covid-19 absences?

Employers may wish to adopt a more flexible approach to Covid-19 sickness absence and as above, they should make an exception to their medical evidence reporting requirements.

Another potential issue may arise if an employee’s absence triggers the absence management process. Employers may decide to disregard Covid-19 related absences. Alternatively, employers may wish to apply this approach to employees with disabilities, such as auto-immune conditions, respiratory conditions or diabetes.

10) My business is experiencing reductions in demand and I am worried about my ongoing staff costs. What options are there to reduce or manage my staff costs?

There may be several alternatives to consider before embarking upon a redundancy exercise, such as:

  • Informing staff of the difficult situation that you are in and see if they will voluntarily agree to reduce hours or pay temporarily.
  • Checking if there is either an express or implied right to consider short time working and lay-offs for a period of time. However, an employee who is laid off or placed on short time working may be entitled to claim a redundancy payment. (There are certain notification requirements involved in this process and we recommend that you seek legal advice before you embark upon doing this).
  • Considering if it is appropriate to impose reasonable changes to terms and conditions on staff.
  • Considering if it is appropriate to withdraw any outstanding unaccepted job offers.
  • Considering pay rise freezes.
  • Asking staff if they would be prepared to take annual leave or a period of unpaid leave.

Please note that this guidance is correct at the time of writing. However, the advice is constantly changing and Employers can keep up to date with the Government guidance on their website which is being updated daily. The above is meant to be a guide and we recommend seeking specific legal advice if you have a particular issue.

Should you have any concerns and require further assistance, please contact Victoria Regan on 01825 761555 or victoriaregan@rixandkay.co.uk

 

 

 

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