The coronavirus has now definitely taken us into unchartered territory. People’s health is obviously number one priority, and the impact on the economy is going to be huge.
HR professionals are facing completely new challenges, by the day. No one knows how the situation is going to unfold and reacting quickly and creatively to the fast-developing situation will be key.
Each sector, each business, is going to face different problems as the impact of COVID-19 unfolds. We are very busy advising many of our clients on how to respond and how to plan. However, whilst specific legal advice will often be necessary, we wanted to provide a ‘basics’ pack to help our clients, consisting of:
a) An easy to understand coronavirus flow chart. b) The following article which looks at 5 key areas that will be affecting businesses. c) A template homeworking policy produced by employment law barrister, Daniel Barnett (see below under ‘Homeworking’).
Please note that as the situation changes the legal position will change. This note is accurate as at 18 March 2020, but as time goes on we would recommend that up to date advice is sought.
1. What do we have to pay staff if they are off due to coronavirus?
If staff are off work due to coronavirus, you need to consider their contractual and statutory right to be paid. However, in this exceptional situation, you will also need to carefully consider the practical impact of how people are paid when they are off.
What we mean by this is that complying with your legal obligations in relation to paid leave may mean that some people in your workforce, such as sub-contractors or casual / zero hours workers, are not paid for being off. Which is likely to mean they will come into work when they should be at home self-isolating, which in turn will put the rest of your workforce at risk. There is no easy solution, and clearly commercial factors will play a big part, but this is certainly something employers need to take into account.
In terms of contractual and statutory obligations, the main scenarios are as follows:
- An employee who contracts coronavirus and is not fit for work is entitled to sick pay: ether a) Statutory Sick Pay (SSP) – from day 1 as opposed to the usual day 4 – or b) contractual sick pay subject to the terms of their employment contract.
- If an employee is self-isolating on the advice of Public Health England (and note this advice is changing as the pandemic develops) – regardless of whether they are displaying symptoms – they are entitled to SSP from day 1. Whether they are also entitled to contractual sick pay will depend on whether they are fit to work and the contractual sick pay terms.
- If an employee has been told by their employer to self-isolate because of concerns that they may be infected (as opposed to self-isolating on the advice of Public Health England), there would be no entitlement to SSP but the employee should be paid full pay (analogous with suspension on full pay).
- If an employee has self-isolated because of their own concerns about infection, but on the advice of Public Health England they would not need to self-isolate, they are not entitled to SSP and are unlikely to be entitled to contractual sick pay (but this would depend on the contractual terms).
- If an employee has self-isolated, of their own volition or on the advice on Public Health England, but they are not sick and can work from home, then of course they are entitled to be paid their salary, but you would need to be clear that they are fit to work.
- Casual workers with no obligation be given work, or zero hours workers, will not be entitled to be paid for time off. They may be entitled to SSP or employment benefits (note there were changes in the budget to make it easier for those who do not qualify for SSP to claim benefits if they are self-isolating). These workers may therefore be more likely to come to work when they should be at home, for financial reasons. This is the practical issue that we refer to above.
Note that in the recent budget the Chancellor confirmed that businesses with fewer than 250 employees would be able to claim back from the government two weeks of SSP paid to staff affected by coronavirus.
2. How do we have to treat employees’ health information?
Under the GDPR, data relating to health is one of the special categories of personal data which benefits from additional protection. Even though we are in the midst of a pandemic, employers will need to make sure they comply with the GDPR.
If you already hold health information about employees, this can be used to identify them and help them take appropriate steps to avoid risk to their help, e.g. working from home. Business should also reach out to their staff to ask them to notify them of any existing health conditions that mean they are more at risk if the contract coronavirus. Business are going to need to react appropriately to individual cases, bearing in mind their duty of care to protect their workers’ health and safety.
Whilst it may be well intentioned, employers should avoid blanket approaches to particular types of employees, e.g. older workers, because this could potentially amount to discrimination. More focused approaches based in information / data will be more effective and carry less legal risk.
3. Temporary measures such as laying off or redeploying staff
Businesses are going to be hit by the impact of COVID-19 on their staff and the customers/suppliers. There are some potential options available in terms of responding to this temporary situation, namely temporary laying off staff, short time working and redeployment.
Businesses can temporarily lay off staff (or put them on short time working – i.e. reduce their hours) if they have a right under the employment contract to do so. Typically, employment contracts in the manufacturing sector contain this kind of provision, but they do appear in other sectors. If a business is considering this option the first port of call is to check their employment contracts, because unless they expressly give the employer this right, any attempt to enforce lay off / short time working could give rise to claims, such as constructive dismissal, breach of contract and unlawful deductions from wages.
That said, in these highly unusual circumstances, employees are likely to appreciate that for some businesses, such a measure may be the only way of ensuring survival, and so may agree to being temporarily laid off or having their hours reduced. Employers should ensure that they properly explain the situation the business is in, and what temporary lay will mean for their staff, and get their consent in writing.
If staff are laid off they will be entitled to receive a statutory ‘guarantee payment’ for workless days, of up to £29 per day and limited to five days in any three-month period. A lay-off for four or more consecutive weeks also entitles an employee to claim a statutory redundancy payment in certain circumstances.
Another potential option is redeploying staff to cover absence hit areas of the business. Again, the first port of call should be the employment contract – check to see if this gives you the right to give employees different duties or move to a different site. If the differences are minor, such a move could arguably be deemed to be a reasonable management instruction, but this will depend on the circumstances. If they contract does not allow you to redeploy, then as with other measures such as temporary lay off, staff may agree to do this. The key to managing such a scenario effectively is going to be how businesses engage with staff, e.g. clear communication, transparency and reacting positively with staff concerns to reach a solution. Obtaining buy-in from employees will be essential to making any such temporary measures work.
If it is viable, homeworking is a very effective practical step to try to maintain productivity while increasing numbers of employees are asked to self-isolate at home and many businesses have already started to ask people to work from home.
Of course, working from home is not appropriate if someone is sick; in which case they will go on sick leave.
If homeworking is an option, you will need to consider the following issues:
- Health and safety. A health and safety risk assessment should be carried out for employees working from home. The scope of an assessment will depend on things like the type of work being undertaken and the length of the period of home working.
- GDPR. Employers should ensure that adequate measures are in place to comply with GDPR legislation. Typical issues can be employees using unsecure networks, personal desktop computers/laptops and other devices and personal and/or unsecure email addresses.
Employers may wish to review their current IT/homeworking/bring your own device policies and update them as appropriate. To this end, Daniel Barnett, who some of you will have heard of and is an employment law barrister, is offering a copy of his Homeworking Policy for free here.
5. What happens when staff need time off because schools close?
The Government has confirmed that schools are going to close indefinitely on Friday 20 March. Children of key workers or vulnerable children will be able to attend school.
The practical impact of school closures will be huge, with many people left without childcare.
When responding to the practical impact of this, businesses need to bear in mind that statistically more women have childcare responsibilities than men, and therefore failing to react appropriately to this scenario could potentially give rise to sex discrimination claims as well other potential claims such as constructive dismissal.
Employees are entitled to unpaid time off to sort out childcare under the Time off for Dependents legislation. In summary, this gives employees reasonable unpaid time off to care for those who rely on them for care, which would include their children. However, the right to time off is designed to deal with unexpected/emergency situations and entitlement is typically for a few days at most, e.g. time off for employees to look after their children until alternative care arrangements are put in place.
Given the strain school closures will put on childcare services in the UK, it is likely that many people will not be able to find alternative childcare arrangements. In these circumstances, there is going to need to be a high degree of trust and pragmatism between businesses and their employees during this difficult period. Sticking to the letter of the Time off for Dependents regulations may not provide a solution if the school closures last for weeks or months.
Businesses should give thought now to practically how they will respond, e.g. homeworking, ensuring cover for key areas of the business, allowing different working hours/patterns, part-time working, using annual leave or parental leave.
Paul Ryman, Partner | firstname.lastname@example.org
Carl Atkinson, Partner | email@example.com