In the News: Coronavirus Employer obligations

Last Updated: 24 March 2020

Due to the nature of the virus and the fact that the situation is changing every day, as the previous guidance issued, we will be reviewing and updating this blog regularly. If you have any specific questions, we will also try to account for these here.

If your question is not answered here, we have set up a specific email helpline to answer any further queries which you may have. This will be a free service which we are offering to both employees and employers, to ease any anxiety which persons may have about employment rights and coronavirus. The contact details are: coronavirus@thrivelaw.co.uk

In the course of the past few weeks, the working environment has changed. First, we were told that everyone should be working from home where possible. Then the pubs and bars and restaurants closed. Then the Government introduced the Coronavirus Job Retention Scheme. And now, the rule is that everyone should be staying at home, and only travelling to work where necessary (and where it is impossible to work from home).

It’s easy to see, with the quick amendments that have gone on, how people might be confused and wary of what support is out there for businesses, what to advise their employees, and how to proceed moving forward.

This blog is intended to be a “Catch All” blog, providing all the basic guidance on coronavirus and your obligations towards employees. But, we also have the following blogs which should be helpful for you:

We also have our helpline, discussed above, at coronavirus@thrivelaw.co.uk which provide free advice, to ease any anxiety which persons may have about employment rights and coronavirus.

Should Employees be at Home?

The simple answer is: yes, where possible (and not a key worker). All employees should be at home where they can work from home, and if they are from a vulnerable group, display symptoms, or are living with someone who displays symptoms, then they should not be attending work, even if they would usually be required to do so (further on this below).

Those individuals, who are unable to attend work due to displaying symptoms, living with someone who displays symptoms or being directed as vulnerable by the Government, should all qualify for sick pay, either company sick pay or SSP. After the first week of self-certification, 111 can now issue “isolation notes”.

The Government has advised against “all but essential” global travel for at least 30 days. However, it is clear that if the remit of someone’s job requires them to leave the UK, that would likely fall within the criteria of essential.

What Financial Support is Available for Employers?

Employers should contact their accountants to see what grants and loans might be available before making any drastic decisions. Business support has been put in place and there are more details here.

We know that for many TAX and VAT are automatically deferred so please do look into this with your chosen financial adviser or speak to Julie Bickerdyke Julie@notjustanfd.co.uk who may be able to help.

Where the employer cannot afford to keep their employees, and such employees would usually be laid off or being made redundant, the Government’s Coronavirus Job Retention Scheme will essentially pay some of the salaries for those members of staff. They will be retained as employees, but 80% of the salary (up to £2,500) will be paid for, for 3 months, by the Government under this Scheme.  Once furlough ends, they will go back to work as normal.

It is a grant so is not repayable by the company. The current guidance is that all UK businesses will be eligible.

Dependent on the contract, it is likely that you will require the employee’s consent, as their status will change to a “furloughed” employee.   We are recommending this is done in writing in case evidence is needed or a dispute arises down the line.

An employer will also be able to choose whether the employee only receives the Government subsidised 80%, or whether the employer meets the cost of the additional 100%. If the intention is for the employer to receive only 80% of their salary then you will, again, need to obtain their agreement to such a decrease in salary.

At this point, we should add, that we are still awaiting further government guidance and draft legislation, so there are still some points that are still unclear, and the advice below may be subject to change as the further information develops. For further information on this scheme and furlough, we have published a blog here.

Schools Closures

Schools closed on Friday, however “key workers” are continuing to be supported at schools. Key workers include NHS workers, police services, social care workers, and delivery drivers, and the full list is available here. Schools are expected to make plans to facilitate this and care for the most vulnerable children.

For employees who are not key workers, our advice to employers is that you work with parents to come to arrangements which facilitate the necessary childcare. This might be flexible working arrangements, working from home (where possible), or a combination of both. Parents are eligible for parental leave and time off for dependents, but this would be unpaid. However, you always have the discretion to pay them for this time (as below).

If an employee is sick due to Coronavirus (or symptoms) or living with someone with symptoms

In this scenario, the usual sick pay provisions will apply as they would be classed as “unfit to work”. The current guidance is that employees should be encouraged to go home as soon as they show symptoms, and large companies should consider whether to have an “isolation room” from which they can call 111 and gain medical advice.

An employee will be required to certify themselves as sick (“self-certify”), in accordance with the employer’s sickness policy for the first 7 days. After 7 days the employee must obtain a sick note; this was previously obtained from a GP, but new changes mean that a sick note can be obtained from 111 online as well. The usual sick pay provisions will apply, meaning that employees will need to check their contract and if they have contractual sick pay this will kick in. If not, Statutory Sick Pay (‘SSP’) will be paid, if they are eligible. SSP is currently set at £94.25 a week and, since 4 March 2020, sick pay entitlement has been available from the first day of sickness (previously, the first three days were unpaid). This is expected to result in an extra £40 for people receiving SSP.

The Government Guidance is precise on how long people should isolate and be in specific quarantine following symptoms.

Self-isolation directed by an employer or workplace closure

Where a workplace is closed, the reaction by the employer is, again, conditional on the company’s policies and preference. They may have a policy which specifically addresses workplace closures, which they should follow in these situations. If the workplace is closing, the business may wish to consider the support available to those businesses (as above), if those employees could otherwise be made redundant.

Alternatively, an employer has the options of allowing use of annual leave, requiring lost time is made up or giving exceptional leave. In the case of workplace closures, employers can’t usually deduct pay from employees or require that the time is unpaid where the employee is fit and able to work.

If the employee works in an industry that doesn’t mandatorily require them to be at the site of your workplace, they should now be permitted to work from home but they may also be eligible for flexible working/home working under these circumstances. Click here to read a recent blog we have written about this.

Remember – Where an employee is ready and able to work and their employer is not allowing them to, they may be entitled to be paid in full, for their normal contractual hours.

With regard to layoffs mainly concerning fields of employment such as manufacturing, construction etc, employees may find that they are subject to a lay off during the coronavirus outbreak. What this means is that if a business shuts down operations or requires the employees not to come into work, employees affected are given a guaranteed minimum amount as a means of getting by. Those affected should see if there is a “layoff clause” included in their employment contracts. Again, they may be eligible for the Coronavirus Job Retention Scheme (as above).

Self-Isolation by the employee as a protected measure

Employers must be particularly considerate when dealing with vulnerable employees who are at a higher risk of catching coronavirus.

Employees in the above categories may choose to self-isolate where they do not have symptoms. If they do so, there is no legal obligation to pay them full pay, but employers should always be considerate and seek to support those who are most vulnerable at this time, especially where this may amount to a disability or because they are pregnant as actions in this regard could be discriminatory too.

An employee could also have the option of taking this leave as holiday, but the employer would have discretion to refuse that request. Perhaps the best response may be to simply offer vulnerable employees the opportunity to work from home, as this should take place unless impossible to do so.

An exception to this would be when someone suffers with health anxiety. If an employee suffers from health anxiety this could mean an employer would have to allow them sick leave because they may be self-isolating as a result of this anxiety. It may also be seen as a reasonable adjustment to do so.

An employee could seek to engage their company’s flexible working/homeworking policy. This could assist where an employee has health-related anxiety as it may be a reasonable adjustment to their role allowing them to continue working rather than take sick leave, which inevitably helps both parties. This could be any flexible arrangement agreed between the employer and employee and could vary their place and hours of work (subject to agreement).

Anyone can request flexible working, not just those with caring responsibilities and disabilities.

Self-Isolation to care for dependents

For parents who have caring obligations to quarantined children, or for the school closures (as above) they may also be able to use parental leave, time off for dependents, or they may themselves, whilst caring for dependants, be advised by 111 or a GP to isolate in which case this is sick leave.

If an employee is taking time off to care for a relative or parent who has been struck down with the coronavirus, an employee is entitled to take dependents leave in emergency situations to help their dependants. Such individuals hold the legal right to do this. However, they do not hold the legal right to be paid for this leave.

We recommend checking your policies and taking each situation on a case by case basis depending on the facts.

An employer should consider offering parents who must care for quarantined children either flexible working arrangements or allowing them to work from home, but are allowed to reasonably restrict home working if they are concerned that childcare arrangements means that a full working day will not be completed.

Coronavirus and the impact of being self-employed

Recommendations regarding self-isolation extends to those who are self-employed. A real issue here is that a high majority of self-employed workers may not be self-isolating, on the basis that they cannot afford to.

We have received indication today that, in a long awaited updated, the Government have made an amendment to the coronavirus bill which (if accepted) will entitle freelancers and self-employed people to what’s termed “statutory self-employment pay”.

If this change is accepted then it will mean that self-employed and freelance (undefined) workers will have their income “topped up” by the Government to the lower earnings of:

  • 80% of their monthly net earnings, averaged over the last three years; or
  • £2,917 per month.

Whichever one of those is lower. This should hopefully ensure that as many people who can stay at home and be at home, are now doing so, without fear of financial repercussions.

Coronavirus and the impact of being on a zero-hour contract

The issue with workers on zero-hour contracts is that hours are not guaranteed which means if the employer chooses, they do not have to offer any hours. So, rather than offering work from home opportunities, instead they may simply not offer any hours which is of course detrimental to the employee. The real concern here is that there is nothing a worker can do under these circumstances, as they cannot claim SSP when they are not being offered any hours (should they then become unwell).

If someone on zero hours contracts who is working regular hours and then becomes unwell whilst working, SSP may apply, provided they are eligible.

Zero-hours workers who are no longer offered hours may be eligible for Universal Credit. The Government initiative is to make it easier to access benefits such as Universal Credit, to ensure that those who should be self-isolating, are. There may also be an option to furlough those employees and the employer may therefore recover 80% of their wages under the Coronavirus Job Retention Scheme.

Keeping up to date

We will keep you updated on this provision and any other changes to the law on sick pay or otherwise as a result of the virus. You can subscribe to our updates here.

ACAS have also released advice on what employers and employees should do in regard to the coronavirus.

For government advice, updates and areas which are affected (updated by the Department of Health and Social Care every day) please see the link here.

Have we answered your question? If not, we also have a separate page for the frequently asked questions which we’ve had in relation to Coronavirus, here.  There is, of course, also our helpline at: coronavirus@thrivelaw.co.uk, where we hope to be able to help you.

Anything within article should not be taken as legal advice. Any information provided will be general advice and for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. If you wish to obtain specific advice to your situation and your decisions, please contact us and we will thereafter be able to advise.

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