As UK-based airline business Flybe went into administration recently, it has been predicted that the financial hit from coronavirus could reach £87bn this year. The virus, with no known treatment, has infected more than 82,000 people in over 47 countries and as of 16 March 2020, more than 1500 cases have been confirmed in the UK.
Coronavirus is a new illness which affects the respiratory system. Recently, the UK’s Chief Medical Officers have raised the risk level from ‘low’ to ‘moderate’ and the World Health Organisation has declared the outbreak a Public Health Emergency of International Concern (PHEIC). This is the 6th PHEIC declared since 2005, when the International Health Regulations came into force (other PHEIC include Zika and Ebola).
ISSUES FOR EMPLOYERS
All employers have a duty of care towards their employees. Under the Health and Safety at Work Act 1974, employers have additional duties to ensure that, so far as reasonably practicable, the health, safety and welfare of employees are protected. In particular, employers should consider their additional duties to ensure the health and safety of pregnant women and those who may be more susceptible to illness perhaps due to their health and/or age.
At present, the position is very much business as usual, however, employers should consider how their business may need to adapt should matters call for this.
In particular, the following HR issues should be considered:
The Government has now passed emergency legislation on 13 March 2020 which temporarily changes the scope of SSP to cover:
- individuals who are not ill but are unable to work because they have been advised to self-isolate in line with Government guidance
- SSP will be payable from day 1 instead of day 4 for affected individuals
- People who are advised to self-isolate for COVID-19 will soon be able to obtain an alternative to the fit note to cover this by contacting NHS111 rather than vising a doctor. This can be used by employees where employers require evidence. Further details to be confirmed.
- Those not eligible for SSP e.g. the self-employed or people earning below the Lower Earnings Limit can now more easily make a claim for Universal Credit or Contributory Employment and Support Allowance.
If your business operates any contractual sick pay entitlement, you should follow the terms as set out in your contract and if you have any concerns, contact our Employment Law Specialists.
On 11 March 2020, the Government released it’s proposed budget, which includes the following in regard to proposed changes to Statutory Sick Pay legislation:
Support for businesses
Some businesses may experience increased costs or disruptions to their cash flow as a result of COVID-19. The Budget announces a set of measures to provide support to businesses during this temporary period by either reducing their costs or bridging cashflow problems arising from the outbreak, and to protect people’s jobs.
Statutory Sick Pay – The government will support small and medium-sized businesses and employers to cope with the extra costs of paying COVID-19 related SSP by refunding eligible SSP costs. The eligibility criteria for the scheme are as follows:
- this refund will be limited to two weeks per employee
- employers with fewer than 250 employees will be eligible. The size of an employer will be determined by the number of people they employed as of 28 February 2020
- employers will be able to reclaim expenditure for any employee who has claimed SSP (according to the new eligibility criteria) as a result of COVID-19
- employers should maintain records of staff absences, but should not require employees to provide a GP fit note
- the eligible period for the scheme will commence from the day on which the regulations extending SSP to self-isolators come into force, 13 March 2020
- while existing systems are not designed to facilitate such employer refunds for SSP, the government will work with employers over the coming months to set up a repayment mechanism for employers as soon as possible
(1.32 Support for Business)
It is important to distinguish whether employees are self-isolating by choice or under medical guidance. This will invariably involve an exploration of the facts in each case and as such, you will need to speak with employees to establish:
- Have they been advised to self-isolate by either their GP or the NHS 111 health service? If so, can they provide evidence of this (employers may need to be flexible in requests for evidence which may not be promptly available under the circumstances).
- If not, is the employee requesting approval to self-isolate?
If the employee is choosing to self-isolate, it is important that you discuss whether they have genuine concerns that would make is appropriate for them to stay away form the workplace. There are different ways that this may be dealt with, for example:
- Agreed use of annual leave
- Agreed leave with or without pay
- Flexible working
Some employees may request time off to care for dependents. It is important to remember that employees are entitled to reasonable time off to care for children or dependents, however, this right does not attract pay unless your contracts provide for this.
If an employee has been advised to self-isolate by a health professional, the Government has said that you should pay sick pay in the normal way.
Lay-offs and short-time working
It is important to understand that these terms do not mean redundancy and they are temporary measures.
In the unfortunate circumstances that your business may need to temporarily close down, it may be that you will seek to rely on lay-off and short-time working clauses in your employee contracts. It is important that these clauses are sufficiently clear, in your contracts and that you take advice before implementing these processes.
A lay-off is where employees are not provided with work temporarily and short-time working occurs when employees are temporarily laid off for a number of contractual days/hours each week. We address payment for these circumstances below.
The law says an employee has been laid off for a week if:
- The terms of their employment contract provide that whether or not they are paid depends on their employer providing them with the work they are employed to do.
- They are not entitled to any remuneration that week because their employer does not provide work for them.
Section 147(1), Employment Rights Act 1996 (“ERA 1996”).
It is important that if your employees are genuinely sick and therefore not available for work, they will not be treated as being laid off and will instead be treated as sick (Johnson v Knowsley Caravans Ltd ET/5071/74). If you are at all unsure which applies, please contact our Employment Law Specialists.
The law says an employee has been put on short-time working where:
- By reason of a diminution in the work provided for the employee by the employer (being work of a kind which under the contract of employment the employee is employed to do).
- The employee’s remuneration for the week is less than half a week’s pay
Section 147(2), ERA 1996
If the terms in the employee’s contract allow, an employee can be laid off without pay where there is a specific term in their contract allowing the employer to do so. An employee may be entitled to Statutory Guarantee Payment (SGP) on up to five “workless days” in a three-month period.
The current rate of SGP is £29 a pay and up to a maximum of £145 in any three month period.
An employee will not be entitled to SGP in the following circumstances:
- They do not have at least one month’s continuous employment before the period for which they are claiming an SGP.
- The workless day is due to industrial action.
- The employee has unreasonably refused an offer of alternative work.
- The employee does not comply with reasonable requirements imposed by their employer with a view to ensuring that their services are available.
Section 29, ERA 1996
Risk of Redundancy!
It is important to remember that if you implement either short-time working or lay-offs for too long, employees may follow a statutory procedure to apply for redundancy payments and leave.
The law say that the employee must have been laid off or kept on short-time working (or a combination of the two) for at least:
- Four or more consecutive weeks; or
- A total of six weeks (of which no more than three are consecutive) in any period of 13 weeks
Section 148, ERA 1996
All employees have the right to request flexible working after 26 weeks of employment. An employer must then meet with the employee and consider this request reasonably. What is reasonable will depend on the circumstances of each case and our Employment Law Specialist can advise you on any issues you may have in this regard.
Employers have three months to consider a flexible working request, however, if the request is made in relation to the health and safety of an employee, this will need to be addressed more urgently.
An employer may have a number of legal justifications for refusing a flexible request, which include:
- it will cost your business too much
- you cannot reorganise the work among other staff
- you cannot recruit more staff
- there will be a negative effect on quality
- there will be a negative effect on the business’ ability to meet customer demand
- there will be a negative effect on performance
- there’s not enough work for your employee to do when they’ve requested to work
- there are planned changes to the business, for example, you intend to reorganise or change the business and think the request will not fit with these plans
It is important that an employee is given the right to appeal a decision to refuse flexible working.
Discrimination claims can be very costly for employers and for more information on these costs, read more about this topic here.
There is a risk that some employees may feel that they are being treated unfairly due to their race and employers should consider reviewing their harassment at work policies and reminding employees that there is a zero tolerance approach to harassment at work, that includes the harassment of individuals due to their race.
ACAS have provided the following recommendations for good practice:
- keep everyone updated on actions being taken to reduce risks of exposure in the workplace
- make sure everyone’s contact numbers and emergency contact details are up to date
- make sure managers know how to spot symptoms of coronavirus and are clear on any relevant processes, for example sickness reporting and sick pay, and procedures in case someone in the workplace develops the virus
- make sure there are clean places to wash hands with hot water and soap, and encourage everyone to wash their hands regularly
- provide hand sanitiser and tissues for staff, and encourage them to use them
- consider if protective face masks might help for people working in particularly vulnerable situations
- consider if any travel planned to affected areas is essential
As always, our Specialist Employment Law Consultants are available 24/7 to answer your queries and to offer advice tailored to the facts of any Employment Law issue you may have in a way that is commercially sensitive to the needs of your company. Please call in our 24-hour client advice line: 0800 151 2935 and quote your Client Account Number on all correspondence and telephone calls.
For further Information, see the following links: