Authors
kathryn clapp

Kathryn Clapp

Senior professional support lawyer

Read More
Shireen Shaikh

Shireen Shaikh

Senior professional support lawyer

Read More
Authors
kathryn clapp

Kathryn Clapp

Senior professional support lawyer

Read More
Shireen Shaikh

Shireen Shaikh

Senior professional support lawyer

Read More

18 March 2020

Coronavirus: Employment FAQs

  • IN-DEPTH ANALYSIS

When is an employee entitled to sick pay in relation coronavirus?

Employees will be entitled to statutory sick pay (SSP) either if they are sick with coronavirus, or else are self-isolating on government medical advice in order to protect others from infection (known as 'deemed incapacity'). Regulations will be passed to enable employees to receive SSP from day 1 of sickness or self-isolation. Regulations will also be passed so that SSP can be paid (for up to 14 days) to employees who are caring for those with coronavirus or who are self-isolating.  

Contractual sick pay is a different matter. Employees will be entitled to this only when they are sick, in accordance with any relevant provisions of the employment contract. However, employers may use their discretion to extend this to situations where the employee is self-isolating on government medical advice. There is currently no obligation on employers to pay contractual sick pay in these circumstances but Acas recommends it would be good practice.

Should we disclose the identity of any person suffering from coronavirus to the wider workforce?

The workforce ought to be told that a fellow-employee has coronavirus but the identity of the person should not be disclosed publicly without the employee's consent. It would be best practice, due to data protection and privacy considerations, to let the workforce know of a case on an anonymous basis. There may be circumstances where it would be reasonable to disclose the person's identity without their consent (for example to protect the vital interests of others), but advice should always be sought before doing this.

What issues should we consider if employees are required by their employer to work from home?

If people are asked to work from home, they should be reminded about and given access to any homeworking policy and reminded that they have the same duties to their employer as they do when in the workplace. This might be a good time to draw attention to the importance of protecting confidential information, abiding by data protection policies and procedures and IT security policies. It might be appropriate to run or re-run any online training for staff on these issues.

The employer's duty of care, to protect the health and safety of staff, also applies to homeworkers and can often be overlooked. Key areas to think about are:

    • Is the workstation at home correctly set up? Where possible, get employees to take an online self-assessment course.
    • Is ergonomic equipment required if homeworking is being required for a prolonged period?
    • Employees at home for long periods may feel isolated and stressed due to anxieties about coronavirus. Can the employer show it has mitigated the risk of mental ill-health by providing opportunities for regular contact between colleagues as well as opportunities for support in relation to workload?
    • If there is an accident at home during working hours, this should be reported as a workplace accident in the usual way to the relevant health and safety or human resources contact.

Do we have to pay employees normal pay if they have to take time off due to school closures?

No. The government has indicated that employees who are caring for those with coronavirus, or caring for those who have been recommended to self-isolate, will be entitled to statutory sick pay (SSP) for up to 14 days (at the time of writing legislation has yet to be passed). This does not appear to cover the situation where caring responsibilities arise as a result of school closures. Employees have the right to take a reasonable amount of time to deal with emergencies (probably a couple of days). Thereafter they could either take unpaid leave or paid holiday. Employers might consider granting parental leave (which is unpaid) to employees for these purposes, waiving the usual notification requirements (21 days) for taking the leave due to the exceptional circumstances.

However, watch this space as in these extraordinary times the government may legislate in future to allow for some kind of paid time off for looking after children due to school closures.

Where there is a downturn in work, can we insist that employees take unpaid time off?

No, unless an employer has reserved a right in the employment contract to require people to take unpaid time off (effectively to be laid off). It is relatively unusual for employment contracts to contain such a provision (although it is common in some sectors such as manufacturing) but it is always worth checking.

Where there is no existing right, employers may seek to introduce such a right, effectively asking employees to agree to such a change due to the extraordinary circumstances. If this cannot be introduced by consent, as with any other change, it may be introduced after appropriate consultation with staff. If consultation fails to produce the desired result, the change may be imposed but this carries the risk of claims for constructive unfair dismissal so advice should always be taken before resorting to such a drastic measure.

When there is a downturn in work, can we insist that people take paid holiday?

Employers are able to stipulate that employees should take holiday at certain times but if they do so, they are required to give twice the amount of notice for the length of holiday they are requiring employees to take (regulation 15 Working Time Regulations 1998). So, for example, they have to give 2 weeks' notice if they want employees to take a week's leave. It is always an option to encourage staff to take paid leave for a set period.

Does a pregnant employee have a right to insist that they work from home or do other work if they feel at risk in commuting to work or consider their work to carry extra risks of exposure?

Government advice should be followed in this regard. Currently it is government advice that pregnant employees should practise social-distancing for a period of 12 weeks and work from home where possible. Pregnant employees are entitled to health risk assessments from their employer and any such assessment should factor in the nature of the work and the particular risks to the employee's health. If there is medical advice that continuing to work in the role or environment would present a particularly heightened risk to the employee from coronavirus, then this should be followed. In circumstances where an employer has to suspend a pregnant employee on medical grounds, the employee is entitled to be paid if there is no suitable alternative work to do. The law in this area is complex so advice should be sought.

 

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