These are unprecedented times and Chambers is seeing a significant increase in questions being raised by workers, employees, and employers alike. This post is intended to provide some outline guidance for the position as we see it, with links to useful information. It is not a substitute for formal legal advice – and if you do need formal legal advice, our Employment Team is ready to help.
Since this post was first drafted, the Chancellor has announced a further package of support for businesses and employees. The announcement can be seen here. It is highly significant, and includes:
Further detail (updated 22 March 2020) can be found here – this is recommended reading.
What happens if an employee has to self-isolate because they are symptomatic or within a household where another is symptomatic?
If an employee has to self-isolate either because s/he is symptomatic or within a household where another is, they will be entitled to statutory sick pay (“SSP”) pursuant to Section 2 of The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 (amending The Statutory Sick Pay (General) Regulations 1982).
Note that, to qualify, the employee’s average weekly earnings must be above £118. The legislation covers agency. The Government has expressed an intention to introduce entitlement to sick pay from day 1 of the employee’s absence; it is currently paid from the fourth “qualifying day” within the “period of incapacity”.
The rate of SSP is currently £94.25 per week. The self-isolation guidance can be found here.
Small businesses should be aware that SSP relief is part of the package of measures announced by the Chancellor and set out here.
What happens if a vulnerable adult wishes to self-isolate as a protective measure?
There is specific guidance relating to “older people and vulnerable adults”, who are at increased risk of severe illness from coronavirus. They are those who are aged 70 or older (regardless of medical conditions) or under 70 with a specified health condition (in effect, anyone instructed to get a flu jab as an adult each year on medical grounds). That specific guidance can be found here.
If a vulnerable adult chooses to self-isolate as a measure to reduce their social interaction and exposure, they would not be entitled to SSP. This is because the advice is not yet for vulnerable adults to self-isolate. In this regard, they would not be entitled to paid time off work other than by agreement or via the use of their annual leave entitlement.
Should employers instruct vulnerable adults to work from home?
This is a matter for the individual employer, but Chambers considers that there are at least two specific cases where employers may wish to tread with additional caution, namely disabled individuals (many adults who are “vulnerable” within the meaning of the guidance will also be disabled for the purposes of the Equality Act 2010); and pregnant women.
Within some workforces working from home is not possible i.e. emergency services, the care industry, nurseries, hospitality, retail etc. However, employers may decide that it is a reasonable management request for vulnerable adults to stay at home. Whether to do so will depend on the individual employer and employee circumstance.
Vulnerable adults may of course wish to work from home in any event.
Employers have a duty of care to their workforce. There is a specific duty of care on employers to make reasonable adjustments for disabled employees. This may include reduced working hours to enable travel outside of rush hour, an increase in cleaning and hygiene measures within the office, and/or the provision of a permanent desk for that employee. A vulnerable adult whose condition amounts to a disability may ask for provision for home-working, and that request should be accommodated if possible. It may well constitute a reasonable adjustment.
Employers have specific obligations to protect the health & safety and welfare of staff. This is particularly relevant for pregnant women and/or those with high-risk pregnancies. A risk assessment will be paramount to identify the risks posed in the continued presence of pregnant woman in the workplace. Whether an employer should instruct their pregnant employees to work from home will depend on the employer and the outcome of a risk assessment.
If the risk assessment identifies risks which can’t be avoided by taking additional steps at work, then the employer shall (if it is reasonable to do so, and would avoid the risk) alter the woman’s working conditions or hours of work. If it isn’t reasonable to do that, or if altering working conditions or hours won’t remove the risk, then the employer shall suspend the employee from work – subject to Section 67 Employment Rights Act 1996, which gives the employee the right to be offered to be provided with suitable alternative work (if it is available). Refusing suitable alternative work may mean that the employer can refuse to provide paid suspension.
Where employees (rather than workers) are involved, it is clear that the suspension must be on full pay if the suspension is on maternity grounds (Section 68 of the 1996 Act). The 1996 Act is also clear that the employee is to be regarded as suspended from work on maternity grounds only if and so long as she continues to be employed, but is not provided with work or does not perform the work she normally performed before the suspension (Section 66 of the 1996 Act).
Where pregnant “workers” are involved, Regulation 16 MHSWR 1999 implementing the Pregnant Workers Directive (Directive 92/85) applies. A failure to carry out a risk assessment will (if the employer is notified of the pregnancy) amount to a detriment: Hardman v Mallon t/a Orchard Lodge Nursing Home  CMLR 59.
So the protection offered by Regulation 16 must cover “workers” (in the extended sense) as well as “employees” (in the narrow sense). If suspension is the only option, it is hard to see how a failure to offer paid suspension, following a Regulation 16 risk assessment, to a pregnant worker could amount to anything other than unfavourable treatment within the meaning of Section 18 Equality Act 2010 (which prohibits discrimination on the ground of pregnancy or maternity)
Chambers’ view is therefore that pregnant employees and workers may well be in a position to require working from home or (if that is not possible) suspension from work on full pay. That is a potentially harsh consequence for the employer, but it is well-established that the employer has to assume the risk of the economic and organisational consequences of pregnancy. These protections extend to workers, not just employees. This will cover, for instance, zero-hours workers.
What can businesses do to mitigate the impact of COVID-19? Redundancies, lay-off, and short-time working
Chambers is aware of many small businesses who are in serious financial difficulties as a result of the pandemic. Businesses may want to reduce staff costs, and to do so with urgency.
Small business must be made aware of the support package recently announced by the Chancellor (which can be found here). In particular, the package covers SSP relief for SMEs; a 12-month business rates holiday for retail, hospitality and leisure businesses in England; grant funding (£10,000 for all business in receipt of small business rate relief or rural rate relief); loan facilities; and flexibility for tax.
Even with these measures, a business may want to reduce staff costs (although this is hopefully mitigated by the recent announcement from the Chancellor – see above at the head of this post).
Can I tell my employees to take paid leave?
Yes, you can ask your employees to take paid annual leave. However, you need to give twice as many days’ notice as the number of days’ holiday which the employee is told to take. In practical terms, if you want the employee to take a five days’ paid leave, you need to give ten days’ notice.
Can I tell my employees to take unpaid leave or to reduce their hours?
This will depend on the terms of the employment contract. Unless the employment contract provides for suspension without pay (in legal terminology, “lay-off”) or reduced hours (“short-time”), then the employer is required to continue to pay the employee.
An employee is laid off for a week if his remuneration under the contract depends on being provided with work of the kind which he is employed to do, but he is not entitled to any remuneration in respect of the week because the employer does not provide such work for him: see section 147 Employment Rights Act 1996
In other words, if the employee’s pay depends on work being done, but no work is provided, then they are “laid off”.
The same piece of legislation also provides for reduced hours – in legal terminology, “short-time”, which is where the employee’s remuneration for the week is less than half a week’s pay (because the employer is providing less work).
Again, these are only options open to the employer if a) the contract provides for them or b) the employee agrees to vary the contract.
If the lay-off or short-time working continues for too long, the employee may become entitled to a redundancy payment. If the employee is laid off or kept on short-time working (or a combination of both) for at least four consecutive weeks, or for a total of six weeks in any 13-week period, then they become entitled (subject to a few caveats) to redundancy pay.
The legislation also provides for “statutory guarantee payments” (SGPs) for employees who are laid off. The level of those payments is fairly limited – £29 per day for 5 days in any 3-month period.
What should I do?
Employers may wish simply to discuss issues directly with their staff. Unless there is a contractual right to lay staff off, or to vary working hours, employers are not entitled to take those steps – but there is nothing preventing employers from agreeing changes to the contract of employment. Employers may find that their interests, and the interests of their employees, are the same – for the business to survive.
However, the starting point must be the package of measures which has recently been announced. The detail, again, can be found here. It is essential reading.
What about other resources?
ACAS has a clear and helpful guide entitled Coronavirus (COVID-19): advice for employers and employees. It is worth a read.
The Chancellor’s package of measures has already been linked to above (and again here) – employers may wish to keep an eye on it.
Public Health England has published a document entitled Guidance for employers and businesses on coronavirus (COVID-19). It is also worth a read.
The situation is developing rapidly.
This article is written by Heather Platt, Naomi Gyane and Ezra Macdonald and . Any questions or comments should be sent to firstname.lastname@example.org.