COVID-19 Coronavirus employment law

The advice and guidance from the Government to employers and employees on COVID-19 Coronavirus is changing on a daily basis as it attempts to slow the spread of the virus in the community.

This is a note on the guidance as we know it on 19th March 2020. It is very likely to change so please keep watch the news bulletins and go to https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19   for the latest information.

The challenge facing employers as they deal with the direct and indirect impacts of the outbreak on their businesses and their workforce should not be underestimated. This note will try and answer some frequently asked questions from an employment viewpoint to assist employers and employees through this fast-moving crisis.

  1. What is the current scope of the advice to self-isolate?

The latest guidance was issued on 12th March 2020. This says that those with symptoms of coronavirus ie new continuous cough and/or high temperature, should self-isolate even if the symptoms are mild.

The length of self-isolation should be 14 days (this has changed from 7 days).

On the 16th March 2020, this guidance was extended in that if the employee lives with others and any in the household have symptoms of coronavirus or have been have been advised by their GP to self-isolate, then all household members must stay at home and not leave the house for 14 days. The 14 day period starts from the day when the first person became ill. 

Should another household member develop coronavirus symptoms in the 14 day isolation period, the isolation period does not need to be extended, but the person with the new symptoms has to stay home for a further 7 days.

Further guidance on social distancing and for vulnerable people was also published on 16th March 2020. This relates to those who are at increased risk of severe illness from COVID-19. These are:

  • Those over 70
  • Those with underlying health conditions (diabetic, immune suppressed etc)
  • Those who are pregnant.

The social distancing measure include:

  • Avoiding non-essential use of public transport
  • Varying travel times to avoid rush hour
  • Working from home where possible

As things stand right now, those in these vulnerable groups would not be self-isolating if they refused to come into work so would not qualify for SSP. This may change of course.

  1. Is statutory sick pay payable from day 1

The Prime Minister announced that SSP would be payable from day 1 as a temporary measure on 4th March 2020. However, the legislation putting this into effect has not gone through. That is expected this week. Given the announcement by the Prime Minister, businesses should be looking to pay SSP from day 1 or contractual sick pay if they offer it.

  1. What about sick notes

The government advice on this has changed since the beginning of the outbreak and those self-isolating with symptoms or because of a household member has the symptoms or has been advised by their GP or NHS 111. The advice is that NHS 111 will no longer be issuing certificates or GP’s so employers should be relaxed about insisting on them. This does require an element of trust.

  1. What is the situation with pay if the employer requires staff to leave the workplace?

If an employer takes a conservative approach as they have concerns about the employee and asks them to stay away from work in circumstances where they are not required to self-isolate and are not sick, the employee is entitled to full pay.

  1. Can an employer lay-off staff without pay?

If there is an expressed lay-off clause in the contract of employment, an employer can lay an employee off without pay or place them on short time working for an indefinite period or a period maybe expressed in the contract.

In those cases an employer should pay statutory guarantee payments which are £29 per day for 5 days in any 3 month period or their daily rate if they earn less. Pro-rata for part time.

To qualify an employee must:

  • have been employed continuously for 1 month (includes part-time workers)
  • reasonably make sure they are available for work
  • not refuse any reasonable alternative work (including work not in their contract)
  • not have been laid off because of industrial action

They can apply for redundancy and claim redundancy pay if they’ve been laid off without pay or put on short-time and receive less than half a week’s pay for:

  • 4 or more weeks in a row
  • 6 or more weeks in a 13-week period

To do that they must:

  • Write to you employer to claim redundancy within 4 weeks of the last day of the lay-off or short-time period.
  • You have 7 days to accept their claim or give them a written counter-notice.
  • If you do not give you counter-notice, they can assume they’ve accepted your redundancy claim.
  • A counter-notice means you expect work will soon be available – it must start within 4 weeks and must last at least 13 weeks.
  • An employer can withdraw their counter-notice in writing.

Resigning

An employee must resign to get redundancy pay. The timing is crucial – they have 3 weeks to hand in their notice, starting from:

  • 7 days after they gave written notice to you (if they did not get a counter-notice)
  • the date you withdrew your counter-notice

If there is no expressed lay-off clause in the contract of employment, an employer will need to agree with that employee the terms of the layoff ie without pay, or reduced pay etc etc. If no agreement can be reached, then the employer may have no other choise but to make redundancies.

  1. What happens if an employee needs time off to look after children now the schools have closed.

On 18th March 2020, the Prime Minister announced that schools will be closing except for the children of key workers (the list of key workers should be published today 19th March 2020).

If an employee wants time off to look after their children, they have the right to unpaid leave for one or two days to sort out arrangements. There is no entitlement to paid leave or long term unpaid leave.

Obviously, employers are encouraged to be flexible in these extraordinary times but that is up to each employer to decide.

Encouraging working from home if at all possible (obviously sometimes this is not possible) or some kind of flexible arrangements can be agreed. This is a time to be creative whereever possible.

  1. Help from the Government

The government has announced several measures to help businesses in the current crisis. This information can be found on the link at the top of the page.

Those workers of zero hours contracts and Agency Workers who can demonstrate that they earn in excess of £118 per week will be eligible for SSP if they self-isolate or are otherwise sick.

The self-employed and Consultants have no entitlement to SSP in any circumstances and they should seek help to apply for Employment Assistance Allowance or Universal Credit.

I expect that the government may announce further measures to help employers keep staff employed by paying a % of their wages as in Ireland and other countries but they haven’t announced anything yet and may not, we just have to see.

If you have any further questions, please call 07841255480 or ashley@heeleyresourcing.co.uk

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