Employers’ Guide to employees’ rights in respect of absences and your duty of care to them during the period of the Coronavirus pandemic

The World Health Organisation (WHO) has declared Coronavirus (COVID-19) a Public Health Emergency of International Concern, and on 28^th February 2020 it raised its global assessment from high to very high. The Coronavirus is having an unprecedented effect on businesses in the UK. Understandably, it is proving difficult for employers to continue normal business operations and difficult decisions are having to be made. As such, we have put together a collection of questions that we have been asked by our clients which we feel your business might find useful if you find yourself having to respond in some way to the effects of Coronavirus.

The COVID-19 pandemic is continually changing and the government and Acas advice for employers is being updated as the situation develops. You can keep track of the guidance for employers from the following sources:

Public Health England and BEIS: COVID-19: guidance for employees, employers and businesses (applicable in England).

Acas: Coronavirus: advice for employers and employees (relevant to employers throughout the UK).

WHO guidance: Getting your workplace ready for COVID-19 (applicable globally).

For information on the circumstances in which individuals should self-isolate:

Public Health England: COVID-19: stay at home guidance (applicable in England)

For details of the Coronavirus Job Retention Scheme, click here

What is the Coronavirus Act 2020?

For the most part, the Coronavirus Act 2020 will remain in force for two years. It brings into force the following changes:

• Employees and workers will be able to take emergency volunteer leave in blocks of two, three, or four weeks’ unpaid leave. A UK-wide compensation fund will be established to compensate for loss of earnings and expenses incurred at a flat rate for those who volunteer through an appropriate authority
• Regulators will be able to register, on an emergency basis, suitable individuals as healthcare professionals
• Changes will be made to NHS pensions to allow skilled and experienced staff who have recently retired from the NHS to return to work.
• SSP rules will be amended to allow SSP to be claimed from the first day of incapacity, which will have retrospective effect from 13 March 2020;
• Enable employers with fewer than 250 employees to reclaim SSP paid in respect of the first 14 days of COVID-19-related sickness absence, which will have retrospective effect from 14 March 2020

Statutory Sick Pay (SSP) and COVID-19

1) In what circumstances is SSP payable?

Regulation 2 of the SSP Regulations has been amended by emergency legislation, which now provides that a person is deemed incapable of work where he is:

”isolating himself from other people in such a manner as to prevent infection or contamination with Coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland(d) or Public Health Wales(e) and effective on 12th March 2020.”

This means that both individuals who have contracted Coronavirus disease and those who are self-isolating following government guidance will be entitled to SSP.

2) What changes to the normal rules on SSP and fit notes have been made in light of COVID-19

a) Amendments which have taken effect

SSP rules have been extended to cover those who self‑isolate in accordance with government guidelines.

The government indicated an intention to also extend SSP to those caring for those within the same household who were exhibiting symptoms of COVID-19.

The government introduced a new system of isolation notes which employees can use to provide evidence to their employers that they have had to self-isolate due to COVID-19, either because they have symptoms, or because they live with someone who has symptoms.

SSP can be claimed from the first day of incapacity (from 13 March 2020).

b) Forthcoming changes 

The Coronavirus Act 2020 will bring the following into force:

• Enable employers (with fewer than 250 employees) to reclaim any SSP paid to employees in respect of the first 14 days of sickness absence related to COVID-19. 

Absence and pay: no symptoms or diagnosis

3) Are you entitled to send an employee home from work to self-isolate?

If the workplace and the nature of the role allow for remote working then this may provide you with a simple solution.

Given the current circumstances, there are a range of reasons that you may wish to send an employee home to self-isolate. Understandably, you may be acting out of caution (in circumstances where government guidance does not suggest that self-isolation is required), the employee may have had contact with someone who has been infected or travelled to a country with a particularly large outbreak (which may fall within the circumstances in which the government recommends self-isolation), or they may be exhibiting symptoms.

Where the employee falls within the category of individuals who are being advised through public health guidance to self-isolate, or where the employee is exhibiting symptoms, then you may be entitled to treat the employee as on sick leave.

Where your business has been forced to close or reduce its headcount, see “what steps can I take to protect my business if I am being forced to temporarily close?” below. 

4) Where you send an employee home from work to self-isolate, what pay are they entitled to?

An employee’s right to pay where you send them home from work will depend upon the precise circumstances of that decision.

Where the employee is able to continue to work from home then, subject to any contractual provision to the contrary, they will continue to be entitled to their normal rate of pay.

Scenario 1: you suspend for a reason not falling within government self-isolation advice – where an employee is suspended on e.g. health and safety grounds, because of a possible risk of infection which does not fall within the government’s self-isolation advice, it is likely that they have the right to continue to receive full pay on the basis of an implied duty to pay wages.

Scenario 2: you suspend for a reason falling within government self-isolation advice – where you are considering suspension because an employee falls within the circumstances in which public health advice is to self-isolate then the position in terms of pay may be different. In those circumstances, you may direct the employee to return home and seek medical advice. If the employee falls within the category of people who have been advised in government guidance to self-isolate it is likely that you could treat them as being on sick leave and pay them SSP (subject to any contractual sick pay policy).

5) Where an employee refuses to attend work due to fears about Coronavirus, what action can you take and what pay are they entitled to?

If the employee can work from home then this may well resolve the issue. If not, you would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of the employee’s refusal.

If there is no discrimination, and the public health advice is such that the employee could reasonably be asked to continue to attend work then it is possible that the employee could be investigated for misconduct in terms of their refusal to follow a reasonable management instruction, and their unauthorised absence.

If the absence is unauthorised then the employee would likely not be entitled to pay as they are not willing to attend work.

6) Where an employee self-isolates following either a direction by a medical professional or government guidance, what pay are they entitled to?

Where an individual self-isolates in response to either direction by a medical professional or government guidance they will be entitled to SSP, or any contractual sick pay which may apply in this scenario.

7) What should I do if an employee is living with someone who is suspected to have, or has been diagnosed with, COVID-19?

If a member of an employee’s household is suspected of having, or has been diagnosed with COVID-19, they will need to self-isolate for 14 days in accordance with the Stay at home guidance.

The employee will be deemed incapable for work under the new deemed incapacity rules for SSP. They will therefore be entitled to SSP, or any contractual sick pay which may apply.

Closure of schools

It is of course not usually practical to have employees working from how whilst also providing child-care; however, during the current outbreak it may be that as an employer you will need to take a pragmatic approach to dealing with this. As the schools and nurseries close, a lot of employees that are parents will face this issue. It may be that you’ll need to be flexible with employees working hours.

If it is not possible that they work at home, you may want to consider:

• reaching agreement with the employee; and/or,
• exploring the use of dependant’s leave, parental leave and annual leave.

Please contact us for further information on these types of statutory leave and the employees’ corresponding right of pay.

Absence and pay: symptoms or diagnosis

8) What pay is an employee entitled to where they have mild respiratory symptoms but no diagnosis of Covid-19?

An employee in these circumstances may be treated as being on sick leave and be paid SSP or contractual sick pay. Although their mild respiratory symptoms may not have ordinarily resulted in them taking sickness absence, the fact that they have symptoms likely brings them within either the normal definition of incapacity, or the deemed incapacity provisions as amended by the emergency legislation discussed in question 1 above.

Mandatory isolation

9) Where an employee is ordered to self-isolate or quarantined under the Health Protection (Coronavirus) Regulations 2020, what pay are they entitled to?

An employee who is forced to abstain from work because of compulsory detention or other restrictions made under an enactment such as the Coronavirus Regulations would be entitled to SSP.

10) Where an employee is ordered to self-isolate or quarantined under the Coronavirus Regulations, can they continue to work from home/the quarantine location?

This would depend upon the terms of the order under the Coronavirus Regulations. If they have the facility to work from the location to which they are quarantined, and they are well enough to do so, then this should be possible provided that the restriction imposed upon them under the Coronavirus Regulations does not explicitly or implicitly prevent them from working.

Social Distancing

11) Where an employee falls into one of the categories the government has “strongly advised” to work from home, can I require them to come into work if their role cannot be carried out remotely?

The government issued the Social distancing guidance which “strongly advises” certain categories of vulnerable employees to practice socially distancing measures including working from home and avoiding public transport. Those categories are:

• Individuals aged over 70.
• Women who are pregnant.
• Individuals aged under 70 with an underlying health condition

The government also issued the Shielding guidance which sets out the categories of people the government consider to be “extremely vulnerable from COVID-19”. These include organ transplant recipients, people with certain cancers, those with severe respiratory conditions and women who are pregnant and have significant heart disease.

The government’s announcement on 23 March 2020 that all members of the public must stay at home, except in very limited circumstances, means that all employees must be permitted to work from home where possible. If you are an employer that is permitted to continue operating (meaning that employees who cannot carry out their work from home are permitted to commute to work) then you should consider the position very carefully before requiring an employee to come into work if they fall into one of the vulnerable categories identified above.

To do so could amount to a breach of your duty of care and a breach of the implied term of mutual trust and confidence. This could amount to a repudiatory breach of contract resulting in a claim for constructive dismissal and/or discrimination. Further, where an employee from one of the vulnerable groups subsequently contracts COVID-19 because they were required to come into work, they will potentially have a claim for personal injury.

12) Where an employee falls into one of the categories the government has “strongly advised” to work from home, what are they entitled to be paid if they remain at home and it is not possible for them to work remotely?

Affected employees are potentially entitled to SSP or contractual sick pay if applicable. However, unlike self-isolation for seven or fourteen days, social distancing for vulnerable employees may be required for many months. A potential option will be to put the employee onto furlough leave.

13) What special considerations apply where the employee is in one of the categories the government has “strongly advised” to work from home because of a protected characteristic?

Many individuals advised to work from home in the Social distancing guidance will fall into a vulnerable category because of a protected characteristic: age, pregnancy or maternity, or disability. Employers should be aware that, where those employees cannot carry out their role from home, requiring them to remain at home on SSP could be discriminatory.

If you have an employee in this situation and you are unsure how to proceed, you should contact us for further guidance.

Using annual leave

14) Can you staff carry forward annual leave if they are prevented from taking due to the pandemic?

The government has passed emergency legislation relaxing the restriction on carrying over the four weeks’ annual leave derived from EU legislation with immediate effect. It is now permitted to carry over such leave where it was not reasonably practicable to take it in the leave year as a result of the effects of the coronavirus. Carried-over leave may be taken in the two leave years immediately following the leave year it was due to be taken in.

The additional 1.6 weeks statutory leave derived from UK legislation and any enhanced contractual leave cannot be carried over under these provisions, but can be done so by agreement.

If you are unsure as to the impacts of coronavirus on your employees’ annual leave, including identifying how much annual leave can be carried over, you should contact us for further guidance.

15) In what circumstances could holiday be used by workers to cover periods of absence?

Workers may wish to take annual leave as an alternative to scenarios where they would otherwise be on SSP or nil pay. Workers are entitled to take statutory annual leave during sickness absence but may not be compelled by you to do so.

Workers who are not on sick leave can be instructed to take statutory annual leave, provided that they are given the required level of notice and this must be twice the length of the period you are requesting they take (as such, this is unlikely to be a viable option in the current circumstances). Obviously, if an employee agrees to take holiday at your request, no notice is required.

16) What rights do furloughed employees have in respect of holiday leave and pay?

The government has passed emergency legislation relaxing the restriction on carrying over the four weeks’ annual leave derived from EU legislation with immediate effect. You are now permitted to carry over such leave where it was not reasonably practicable for you to take it in the current leave year as a result of the effects of the coronavirus. Carried-over leave may be taken in the two leave years immediately following the leave year it was due to be taken in.

The additional 1.6 weeks statutory leave derived from UK legislation and any enhanced contractual leave cannot be carried over under these provisions, but this can be done so by agreement.

There is now some updated ACAS guidance on holiday leave during furlough. The revised

The new ACAS guidance says this:

“Bank holidays are usually part of the legal minimum 5.6 weeks’ paid holiday. Employees and workers must get their usual pay for bank holidays. 

Employees and workers may still be required to use a day’s paid holiday for bank holidays, including when they’re furloughed. If bank holidays are given on top of the 5.6 week’s paid holiday, employees and workers should check their contract or talk to their employer about taking this holiday.

If employees and workers usually work on bank holidays but are currently furloughed, they should check with their employer to see if they have to take holiday on that day or if they can take the time off at a later date.

If employees and workers cannot take bank holidays off due to coronavirus, they should use the holiday at a later date in their leave year.

If this is not possible, bank holidays can be included in the 4 weeks’ paid holiday that can be carried over. This holiday can be taken at any time over a 2-year period.”

What is still not clear is whether “usual pay” for bank holidays (or other annual leave during furlough) means the new salary under furlough or the pre-furlough salary. The safest course for employers is to pay pre-furlough salary, although it is arguable that the furlough salary rate be used.

17) Is a worker who is in self-isolation entitled to reschedule holiday?

A worker who is subject to self-isolation should be entitled to reschedule their annual leave, if they wish to do so.

Where a worker is subject to self-isolation because government guidance recommends that they do so (for example, if they live with someone with symptoms) but they are not incapable of working due to their own ill health then the position is less clear. In the absence of further guidance, employers might want to consider allowing workers to reschedule at least the four weeks’ leave contained in regulation 13 of the WTR 1998 where it is affected by self-isolation.

18) Are employees permitted to take pre-arranged annual leave during a period of lay-off?

Yes, if the employment contract continues during lay-off then employees’ rights in terms of annual leave will be unaffected.

19) What level of pay should employees receive if they take annual leave during a period of furlough leave? 

Whilst we don’t have any official guidance on this yet, the HMRC Customer Support twitter page tweeted that it is possible to take annual leave when on furlough, and it must be paid at full pay.

Your duty of care

20) What special considerations apply where the employee is pregnant?

Employers have additional duties to protect the health and safety of new and expectant mothers in the workplace.

As pregnant women have been “strongly advised” to socially isolate, avoid travelling on public transport and work from home where possible, where the nature of the employee’s role means that they cannot work from home and there is no suitable alternative work available that they could do from home, you may have to consider suspending the employee on full pay.

21) What should you do where an employee who is at work starts displaying symptoms?

The government guidance from Public Health England, BEIS and the Acas guidance advise that if anyone becomes unwell with a new, continuous cough or a high temperature in the business or workplace they should be sent home and advised to follow the Stay at home guidance.

22) At what point should you close the workplace?

If someone with COVID-19 comes into a workplace, the workplace does not necessarily have to close. In England, the local Public Health England health protection team (HPT) will get in contact with you to:

• Discuss the case.
• Identify people who have been in contact with the affected person.
• Carry out a risk assessment.
• Advise on any actions or precautions to take.

High risk employees and discrimination issues

23) Where an employee refuses to attend work because they have a disability which they believe puts them at high risk of serious illness if they catch COVID-19, can you dismiss them, or if not, what pay are they entitled to?

People who suffer from certain health conditions are at higher risk of serious illness or death if they contract COVID-19. A requirement imposed by you to continue travelling to and attending work, or to not pay or to dismiss them due to their absence in this scenario, could amount to discrimination. In addition, if the reason the employee self-isolates is because of a disability that puts them into a high risk category such as an auto-immune disease or a respiratory condition, disability discrimination issues may arise.

24) What about other high risk employees who choose to self-isolate?

Some employees may fall into a high risk category in relation to COVID-19 but are not disabled. The World Health Organisation (WHO) has identified that those aged over 60, or who suffer from cardiovascular disease, a respiratory condition, diabetes, an auto immune condition or who are pregnant, are at a higher risk of developing more severe symptoms.

Such employees may wish to self-isolate, even before seeking medical advice. If possible, you could offer flexible working, or allow the employee to take holiday or unpaid leave. Whether they are entitled to SSP is likely to depend on the latest government guidance.

Homeworking

25) Are we entitled to require an employee to work from home?

If there is already an established requirement to work from home where appropriate or where instructed to do so (or in the case of a business continuity issue such as a pandemic), then there is unlikely to be an issue in applying that obligation in an effort to contain the spread of COVID-19.

If not, imposing home working would arguably constitute a variation of the contract requiring employee consent. However, where an employee is faced with either being on SSP or nil pay as an alternative, they may well be willing to consent to working from home as a way of preserving pay. In the circumstances and given the time sensitive nature of the COVID-19 outbreak, employee consent is likely to be the most realistic means of validly imposing a home working requirement where none previously existed.

26) Can we refuse to allow an employee to work from home if they will also be looking after children who have been sent home from school or nursery?

In normal circumstances, it would not be appropriate for an employee to work from home while also providing childcare. However, as the COVID-19 outbreak escalates, we may need to take a pragmatic approach. If all schools and nurseries close, the majority of parents in the workplace will face this issue and putting a blanket ban on working from home while also looking after children may preclude a large proportion of the workforce from performing any duties. In these unprecedented circumstances, it may be necessary to take a more relaxed and flexible approach to homeworking and allow employees to work around their childcare responsibilities.

We recommend contacting us regarding getting a Homeworking Policy in place if this is a new way of working for your business or if this is something you have not put in place before.

Travel

27) Can we require an employee to undertake work-related travel overseas?

This depends upon the nature of the FCO advice on travel to the areas of the country in question. It would not, ordinarily, be appropriate to continue to require work travel to areas which the FCO has advised against travelling to. In most cases it would not be a reasonable request to require travel to such areas, and it may breach your health and safety obligations, and the obligation of trust and confidence, to impose such a requirement on employees. It could even result in a personal injury claim should the employee contract the illness while undertaking work-related travel in these circumstances.

28) What is the position where an employee is stranded overseas on a work trip?

If an employee is unable to travel home because they have contracted COVID-19 and are either not permitted to travel or too unwell to do so, you could treat them as being on sick leave in terms of pay, although we envisage that most employers would likely continue to pay full pay in these circumstances. You would also need to consider the additional expenses incurred by the employee in terms of accommodation and subsistence and ensure that assistance is provided to make arrangements, and that the employee is reimbursed for such expenses. If medical assistance is required, you should ensure that the employee is able to access its business travel insurance policy.

If the employee is unable to travel home because they are subject to lockdown or precautionary isolation and unable to access transport home, similar considerations will apply. However, the employee should continue to receive full pay on the basis that they are only in that situation because you sent them overseas.

If there is a breakdown in the pre-arranged transport home (for example, due to flight cancellations), you should explore other options to repatriate the employee. You remain bound by implied duties towards the employee, and it is likely that ongoing responsibilities towards the employee would require you to make reasonable efforts to find a way for the employee to return home.

29) What is the position where an employee is stranded overseas following a holiday?

Where the employee is unable to travel home because they have contracted COVID-19 and are either not permitted to travel or too unwell to do so, you should treat them as being on sick leave in terms of pay. The employee is entitled to take annual leave if they prefer to do so, but they cannot be compelled to do so.

30) Can an employer restrict employees’ travel during non-working time?

You could consider advising the workforce that anyone who does travel to such an area will be required to remain at home on their return, and that contractual pay (including contractual sick pay) will not be payable in respect of such self-isolation. You would need to consider whether taking that approach amounts to a breach of contract or unilateral change in terms and conditions if they do not fall within the government advice for self-isolation.

If you do issue any directions in terms of non-work-related travel, you should consider whether any requirements or conditions on sick pay are indirectly discriminatory. For example, if you attempt to restrict travel to certain countries, employees who are nationals of those countries could, potentially, claim indirect discrimination on the basis that the new policy disproportionately affects them.

31) Where an employee returns from a holiday in a high-risk area, can they be required to stay away from work?

It is likely that you could require employees who return from a high-risk area to remain at home. Whether they are entitled to SSP or full pay will depend upon whether they fall within the guidance from the relevant public health authority on self-isolation.

Changing terms and lay off

32) If the workplace temporarily closes due to insufficient numbers of employees being able to attend work, what pay are employees entitled to?

Those who are already being treated as unable to work due to either self-isolation or diagnosis with COVID-19 will remain on sick leave until they are fit to return to work. At that point, they will be treated the same as the employees who were sent home at the point of closure.

Any temporary closure of the business will be treated as the employer’s decision and so, in principle, the employees will remain entitled to full pay. However, you will be able to take advantage of the Coronavirus Job Retention Scheme.

33) In what circumstances should the employer consider lay-off and short-time working?

Laying off employees means that you do not provide your employees with any work (and no pay) for a period while retaining them as employees; short-time working means providing employees with less work (and less pay) for a period while retaining them as employees.

You must have the contractual right to lay an employee off or place them on short-time working. If employees are laid-off or put on short-time working in circumstances where you do not have the contractual right to do so then you may be in fundamental breach of contract entitling the employee to resign and claim constructive dismissal.

A better option is likely to be the Coronavirus Job Retention Scheme which will pay employees’ salaries of up to £2,500 a calendar month as long as they are kept on the payroll.

34) Can I defer bonus in light of the economic effect of the outbreak?

Whether a bonus payment can be deferred will depend on the precise terms of the bonus scheme and whether it is discretionary or contractual.

If the bonus is discretionary you may have more latitude in terms of deferring the bonus. The exercise of discretion is subject to limits, but the unprecedented context would be relevant in this context.

You could also consider seeking employee consent to waive or defer bonuses. In normal circumstances they would be unlikely to agree to this, but in the context of the COVID-19 outbreak and expected widespread lay-offs and redundancies, they may be more open to this approach.

35) Can I withdraw offers of employment or delay start dates for new recruits in light of the COVID-19 outbreak?

The starting point is whether a contract of employment has been entered into.

If an offer of employment has been accepted without conditions, there is a binding contract of employment. This means that notice would need to be served in order to terminate the contract before they commence employment.

If there is a binding contract in force then any change in the start date will constitute a change in contractual terms and so is likely to need the consent of the employee.

Government Assistance 

36) What help for struggling employers is offered by the government?

In the Spring 2020 Budget, the government announced several measures to help employers who are struggling with the economic consequences of COVID-19.

On 17 March 2020, the Chancellor set out the detail of the measures the government will introduce to support employers, including:

• Employers with fewer than 250 employees to reclaim SSP paid in respect of the first 14 days of COVID-19-related sickness absence, which will have retrospective effect from 14 March 2020.
• A 12-month business rates holiday for all retail, hospitality and leisure businesses in England.
• A Coronavirus Business Interruption Loan scheme.
• A HMRC Time to Pay scheme and deferring payment of VAT.

On 20 March 2020, the government announced:

• The introduction of a Coronavirus Job Retention Scheme.
• The extension of the interest-free period under the Coronavirus business interruption loan scheme from six to 12 months, and that it will be available from 23 March 2020.
• VAT payments will be deferred in respect of the next quarter and not be due until the end of the financial year.
• Further measures for medium-sized and large business will be announced next week.

Coronavirus Job Retention Scheme (furlough leave)

The introduction of a new Coronavirus Job Retention Scheme (furlough leave) was announced by the government on 20 March 2020. Under the scheme, all UK employers, regardless of size or sector, can claim a grant from HMRC to cover 80% of the wages costs of employees who are not working but kept on the payroll (“furloughed”), of up to £2,500 a calendar month for each employee.

Click here to see our “Coronavirus Job Retention Scheme (‘CJRS’)” page for more details.

Summary

The government guidance is constantly evolving as the Coronavirus pandemic develops. As such, you should try to keep up to date with the latest guidance that is available and cont act us if your query is dealt with under one of the FAQs listed above. 

Louis Howlett

Laura Kelleher