1. Are we still entitled to require employees to attend the workplace?
The Government announced on 23 March 2020 that all members of the public must stay at home, except in very limited circumstances. This means that all employees must be permitted to work from home where possible. The Prime Minister said “Travelling to and from work [is permitted], but only where it is absolutely necessary and cannot be done from home“.
Therefore, you can require employees to attend work provided their work cannot be done from home. However if employees are capable of doing their work from home but you would prefer to have them in the office, it may be a breach of the implied term of mutual trust and confidence to require attendance in light of the current Government guidance. An employee in this situation may choose to resign and claim they have been constructively dismissed. Further, it may be automatically unfair to dismiss an employee who refuses to come into the office because they are concerned about the risk of catching the virus.
2. Where an employee falls into the category the government has identified as ‘extremely vulnerable’, can we require them to come into work if their role cannot be carried out remotely?
The Government has identified a limited category of people who are considered to be “extremely vulnerable” and should be “shielded”. In summary these are:
- Solid organ transplant recipients.
- People with specific cancers.
- People with severe respiratory conditions including all cystic fibrosis, severe asthma and severe COPD.
- People with rare diseases and inborn errors of metabolism that significantly increase the risk of infections (such as SCID, homozygous sickle cell).
- People on immunosuppression therapies sufficient to significantly increase risk of infection.
- Women who are pregnant with significant heart disease, congenital or acquired.
- These individuals are strongly advised to stay at home at all times and avoid any face-to-face contact for a period of at least 12 weeks.
These individuals are strongly advised to stay at home at all times and avoid any face-to-face contact for a period of at least 12 weeks.
If you have employees who fall into one of the categories above and their work cannot be done from home, you should not require them to attend work.
The recently published Government guidance on the Coronavirus job retention scheme says that these employees can be furloughed however it is likely that this will only be the case where there is no work for that employee to do so they would otherwise have been laid off.
3. Where an employee can’t work from home and doesn’t wish to attend work, what should they be paid?
Only employees who are ill, self- isolating because they live in the same household as someone who has symptoms of the virus will be entitled to SSP.
Any other employees who don’t wish to attend work (however understandably) and can’t work from home are not entitled to SSP and not entitled to be paid their normal salary either as it is their choice not to come to work. It is up to you whether you continue to pay full salary, ask/allow them to take holiday or require them to take unpaid leave.
In the case of pregnant employees, where the nature of their role means that they cannot work from home and there is no suitable alternative work available that they could do from home, you should consider suspending on full pay in accordance with regulation 16(3) of the MHSW Regulations.
4. What about working parents whose children are off school due to the school closures?
Employees have the right to take unpaid time off to deal with an emergency involving a child or other dependent. However the right is limited to allowing parents to put alternative arrangements in place and will not cover the extended period needed in this situation.
Employees also have a right to take unpaid “parental leave” to look after a child up to their 18th birthday. Each parent can take up to 18 weeks for each child in blocks of a week at a time with a maximum of 4 weeks a year for each child. Only employees (not workers) are entitled to unpaid parental leave and only if they have worked for you for a year or more and have parental responsibility for the child. This includes step-parents who have parental responsibility. Normally employees must ask for such leave 21 days in advance however it would be reasonable to waive this notice requirement in the circumstances.
It is also open to you as an employer to simply agree that an employee may take unpaid leave for this purpose. Alternatively, parents may choose to take annual leave in this situation, subject to your approval.
If you require employees to take holiday or unpaid leave in this situation, there is a risk of indirect sex discrimination. Women are more likely than men to be disadvantaged by the operation of this policy in the current situation because (it is judicially recognised) they tend to take the lion’s share when it comes to caring responsibilities. You may therefore have to justify this approach as a proportionate means of achieving a legitimate aim.
You should make sure therefore that you explore any alternative working arrangements which may avoid the need to take unpaid leave or holiday, such as flexible working hours or a change to duties, before any decisions are made.
5. What about working parents who can work from home but who you suspect are not being productive due to their childcare responsibilities?
You are entitled to require that an employee who is being paid to work from home carries out his full duties and responsibilities, although in the current situation, you may want to take a more flexible approach to the way in which employees carry out their duties.
If you have evidence that an employee is not working from home as they should, you should discuss this with them by telephone. If the problem is their childcare responsibilities, you should discuss the options above.
6. Can we lawfully conduct temperature checks on employees, workers or visitors?
You cannot require an employee, worker or visitor to your premises to undergo a medical examination without their consent. This would include taking temperatures. Where an employee refuses to have their temperature checked you may refuse entry to the premises, but only where there is a compelling reason for doing so, such as the risk of contact with shielded individuals.
Making a record of the temperature check results entails processing special category personal data which is only lawful in very limited circumstances. The Information Commissioner’ Office has published guidance on data protection and Coronavirus which confirms that “if you need to collect specific health data, don’t collect more than you need and ensure that any information collected is treated with the appropriate safeguards.”
7. Do employees have the right to be notified if colleague/customer develops the virus?
Employees must be notified of any infection risk as soon as possible however you shouldn’t provide more information than necessary and the identity of employees who have contracted the virus should not be disclosed. You should simply advise that an employee who has been in the workplace has been infected and set out any additional precautionary measures that you will be taking to protect employees or that employees should be taking to protect themselves.
8. In what circumstances is Statutory Sick Pay (SSP) payable?
SSP is now payable to:
- anyone who is in quarantine or is unwell due to the coronavirus,
- anyone who is healthy but has received a written notice to self-isolate from a GP or NHS 111,
- anyone who lives with others and they or someone in their household has symptoms of coronavirus such that all household members must stay at home and not leave the house for 14 days,
and who is unable to work as a result.
Employees who are healthy but have been instructed to self-isolate may be able to work from home. If this is an option, they should receive normal pay rather than SSP.
9. What about requiring a ‘fit note’?
For absences up to 7 days, employees should self-certify as usual. Where the absence exceeds 7 days, employees can now obtain online self-isolation notes to evidence that they have been advised to self-isolate due to the coronavirus. The notes can be accessed from NHS 111 online (https://111.nhs.uk/isolation-note).
Keep in mind that employees who are sick for reasons not related to the coronavirus may struggle to obtain a ‘fit note’ given the closure of GP surgeries. You should therefore be flexible with an employee in this situation and use your discretion when requiring medical evidence.
10. What are the changes to SSP?
The following changes have been made to the SSP scheme:
- SSP can be claimed from the first day of incapacity, rather than the fourth day. This will have retrospective effect from 13 March 2020;
- Employers with fewer than 250 employees will be able to reclaim SSP paid in respect of the first 14 days of coronavirus related sickness absence. This will have retrospective effect from 13 March 2020
The legislation for the above changes is not yet in effect however it is advisable that you make a record of any absences relating to the coronavirus (if you are not doing so already), so that you can easily identify those periods of absence which will qualify.
11. Can we change our enhanced sick pay scheme to provide that only SSP is payable in the event of absence due to coronavirus?
This will depend on whether enhanced sick pay is a contractual right or a discretionary benefit.
Where there is a contractual right to enhanced sick pay, whether express or implied by custom and practice, to amend entitlement will amount to a variation of contract which you can only do with the agreement of employees.
Where enhanced sick pay is genuinely discretionary you can exercise discretion not to pay in the event of coronavirus related absence.
12. Should coronavirus sickness/self-isolation be disregarded when taking account of periods of absence for sickness triggers?
If you have a sickness trigger policy, you may want to consider informing all employees that a period of absence caused by coronavirus, whether because of infection or due to self-isolation in accordance with Government guidance, will be disregarded for the purposes of the absence threshold at which formal action is taken under the policy. A dismissal based on coronavirus related sickness absence may be unfair.
You should also bear in mind that employees with disabilities such as auto-immune conditions, respiratory conditions or diabetes, are likely to suffer more severe symptoms (and therefore take greater time off work) if they catch the virus, or may be more likely to self-isolate due to the potential risks of catching the virus. To avoid any potential disability discrimination issues arising, you should consider disregarding coronavirus absence for such employees.
13. Can holidays be used during periods of coronavirus sickness absence?
Workers are entitled to take statutory annual leave during sickness absence so workers who wish to take annual leave during a period when they would otherwise receive only SSP may be allowed to do so.
Workers cannot however be compelled to take annual leave during sickness absence and must be allowed to reschedule a period of holiday which falls within a period of sickness absence should they wish to do so.
It is likely that the same principle would apply to someone who is absent because they have been forced to self-isolate (i.e. someone who qualifies for SSP).
14. Can we cancel a worker’s annual leave?
You are entitled in your employment contract to require workers not to take statutory annual leave on certain dates.
In the absence of any such contractual right, an employer may refuse a worker’s holiday request by serving a counter-notice. This must be given at least as many calendar days before the date on which the leave is due to start as the number of days which the employer is refusing.
Unless your employment contract provides otherwise, you must give notice of this requirement which is twice the length of the period of leave to be taken.
15. Is a healthy worker entitled to reschedule holiday?
In light of the current restrictions on movement, many workers are seeking to reschedule periods of holiday to a date later in the year. It is up to you whether you allow employees to reschedule and it may be beneficial to require employees to take their holiday as planned, or even to give them notice of your requirement to take some of their holiday, during this period.
If you allow employees to reschedule holiday you may face operational difficulties later in the year when everyone wants to book their holiday at the same time.
16. Can we withdraw offers of employment or delay start dates for new recruits in light of the coronavirus outbreak?
If a new recruit has accepted an unconditional offer of employment, there is a binding contract of employment so you would have to serve contractual notice to terminate the contract.The amount of notice pay due will depend on how much of the notice period falls after the agreed start date.
Whilst it would be a breach of contract to impose a varied start date, you can agree this with a new recruit as an alternative to giving notice.
17. What do we know about the furlough scheme in light of the latest Government guidance?
The Government’s guidance is detailed but leaves a number of questions outstanding, such as whether the scheme applies retrospectively to those who have already been laid off without pay, and whether furlough leave could be rotated amongst employees provided each employee is off for a period of at least three weeks. Here is what we do know:
- The scheme is expected to be up and running by the end of April.
- It will run for at least 3 months, starting retrospectively on 1 March.
- It applies to any UK business, charity, recruitment agency or public authority who has been up and running with a PAYE payroll scheme on or before 28 February 2020
Who does it apply to?
- It applies to any employees who have been on your PAYE payroll since 28 February, including employees on flexible or zero hours contracts.
- The scheme covers employees who have been made redundant since 28 February if they are rehired, and employees who have been placedon unpaid leave after 28 February. It is unclear whether or not employees who have already been laid off on no pay will be able to benefit retrospectively from the scheme.
- Employees who are on SSP cannot be furloughed until their entitlement to SSP ends.
- Employees who are shielding in line with public health guidance can be furloughed. It is not clear however whether this only applies if there is no work for that employee to do so they would otherwise have been laid off.
How will it be paid?
- Employers will be able to use a portal to claim for 80% of usual monthly wage costs up to £2,500 per month, plus the associated employer national insurance contributions and minimum automatic enrolment employer pension contributions on that wage.
- Fees, commissions and bonuses are not included.
Employers may choose to top up employees’ wages to 100%, but there is no obligation to do this.
- Employers can only submit one claim at least every 3 weeks.
- For salaried employees, actual salary as of 28 February 2020 will be used to calculate the 80%
- For employees with variable hours, the calculation will be based on the higher of the same month’s earnings from the previous year or average monthly earnings from the 2019-20 tax year.
- Enhanced maternity, adoption, paternity or shared parental pay can be included as wage costs you can claim under the scheme.
What are the conditions?
- Employees must be furloughed for a minimum of 3 weeks.
- Employees who are placed on furlough cannot undertake any work for you.
- They can however take part in volunteer work or training provided no revenue is generated for your business. Workers who undertake work related training must be paid at least the national minimum wage for the time spent training.
- Employers will have to reach agreement with employees (whether express or implied) to put them on furlough. There is no statutory right to put employees on furlough.
18. What is the new Emergency Volunteering Leave (EVL)?
EVL is a new form of statutory unpaid leave. Employees will be able to take a maximum of four weeks leave in any 16-week volunteering period. This is unpaid leave, but otherwise terms and conditions continue as normal. Employees have the right to return to work on the same terms etc. at the end of the leave and are protected against detriment and dismissal for taking the leave. To take EVL, an employee must be certified as an emergency volunteer by an appropriate authority. A compensation scheme will be set up to cover any losses employees incur taking the leave. Certain employees will not be eligible for EVL, for example, if they work in the emergency services or where their employer employs 10 or fewer employees.