Work Matters Bulletin: COVID-19 – March 2020


Our team: Michael McCartney, Mike Tremeer, Taj Rehal


Ever-increasing coronavirus (COVID-19) cases and guidance has understandably led to us receiving a large number of requests for advice on employment related issues.   In this mailing we summarise the most popular FAQs for you, including rights and pay for self-isolating employees and those with caring responsibilities.

  1. Are employees entitled to pay when self-isolating?

The Statutory Sick Pay (General) Coronavirus Amendment) Regulations 2020 came into force on 13 March 2020. These provide that people who self-isolate on advice from Public Health England or the NHS to prevent COVID-19, will be entitled to statutory sick pay (SSP) if otherwise eligible.  In these circumstances SSP will be payable from day one of absence. SSP is currently £94.25 each week increasing to £95.85 from 6 April 2020.

Currently, people advised to self-isolate include those:

  • diagnosed with COVID-19;
  • waiting for a COVID-19 test result;
  • asked to take a COVID-19 test;
  • who have travelled back from an area where the COVID-19 is known to be present;
  • who have been in close contact with someone with COVID-19;
  • who have a new continuous cough or raised temperature; or
  • who live in the same household as someone with the above symptoms.

The Government’s initial advice was that such employees would be able to obtain a written notice to cover their self-isolation by contacting NHS 111.  However, more recent advice is people should avoid contacting NHS111.  Therefore many self-isolating employees are unlikely to be able to obtain a written notice to cover their self-isolation.  However, given the Government’s advice that “We strongly suggest that employers use their discretion around the need for medical evidence for a period of absence where an employee is advised to stay at home due to suspected COVID-19”, we recommend that employers pay SSP (from day one) in any event.

For those employees not eligible for SSP, the Government has announced that they can now more easily make a claim for Universal Credit or Contributory Employment and Support Allowance.

Those employees who have chosen to self-isolate, without advice or symptoms, are technically not entitled to SSP. In the absence of a contractual right to pay in those circumstances, employers should agree what payment to make, or indeed, decide not to pay the employee on the basis that they were not ‘available for work’.  In exercising its discretion in this regard, ACAS guidance (available here) recommends that an employer should listen to staff concerns and their personal circumstances.  Options to consider include paying sick pay, working from home, or periods of annual or unpaid leave.

Employers also have legal obligations to provide a safe working environment and must adhere to their responsibilities under the Equality Act 2010.  If, for example, the employee has a disability which increases their vulnerability to COVID-19, the employer should consider if it can make reasonable adjustments to the employee’s working arrangements.  This may include, for example, agreeing to working from home on full pay, or adjusting their workload to accommodate any increased feelings of stress.

It is also important that employers are consistent in payment for self-isolation. Any difference in treatment between employees may give rise to a discrimination claim if it can be linked to a protected characteristic. 

  1. Can we require employees to self-isolate?

Employers have a duty to take reasonable care for the health and safety of their workforce.  If an employee insists on coming to work, and it is reasonably suspected that they are infected, or pose a health risk to other employees in some other way (e.g. they had recently travelled to an affected area), the employer may require them to go home and self-isolate to ensure their, and other staff’s, health and safety.

If the employee can work from home they should continue to be paid in the usual way.  If home-working is not an option, the employer may have the contractual right to: (i) reduce the employees’ hours and withhold pay; or (ii) give notice to the employee to take their outstanding holiday (notice must be at least twice the length of the holiday period).  Otherwise, the employer would be obliged to keep the employee on full pay as if they had been suspended, or risk claims for breach of contract and constructive unfair dismissal.

  1. How should we deal with an employee who has caring responsibilities (e.g. school has closed or a dependant has fallen ill)?

 You may wish to allow the employee to work from home, though this is likely to depend on the age of the child, the severity of their symptoms, and whether the employee’s job is suitable for home-working.  Employees working from home should be paid in the usual way.

If the employee is unable to work from home, they nevertheless have the statutory right to take a reasonable amount of time off work (i.e. a day or two) to deal with domestic emergencies affecting their dependants. This is unpaid (unless there is anything to the contrary in their employment contracts) and the intention is for the time to be used to deal with the emergency by, for example, arranging alternative care for the dependants.

However, with the current emphasis on self-isolation, it may be difficult to arrange emergency care.  Other alternatives include requesting the employee to take annual leave; make up their lost hours on return to work; or the option of extended unpaid leave.

  1. What information can I disclose to staff if an employee develops symptoms of COVID-19?

Health data is a “special” category of personal data under the GDPR, so it needs to be treated with caution. This should, however, be balanced with the duty of care owed by employers to other employees. We recommend that employers do issue an alert to staff to inform them if an employee develops symptoms and that they keep employees informed in the event of any change in circumstances. However, unless the employee consents to their name being used, any alert should avoid identifying anyone. If, for their own health needs, particular employees need to be made aware of the identity of the affected employee (e.g. a close co-worker who needs to self-isolate) then they may be informed but not in a generalised all-user email.

In more general terms, the guidance from other European countries indicates that employers should not collate health information about their employees. They should not be subjected to temperature checks or questionnaires to assist employers to identify whether they might have COVID-19. We do recommend that regular guidance is issued and employees are encouraged to report symptoms and adhere to the Government’s guidelines.

  1. As a result of the downturn in business, can an employer lay off employees?

The first thing to check are contracts of employment. A contract of employment can have an express clause which allows the employer to reduce hours (short-time working) with a corresponding reduction in pay. A contract of employment can also have an express clause which allows the employer to suspend employment completely for one or more days (lay off) with no pay (although there maybe an entitlement to a statutory guarantee payment).

In certain industries or businesses, even where there is no express clause, there can be clause implied through custom and practice in that industry/business. Typically, lay-off and short-time working are used in sectors such as manufacturing, and often for certain types of worker, such as those working on the factory floor or piece-workers (workers who are paid according to the work they produce rather than the hours that they work), but it can happen in other sectors.

Statutory holiday entitlement continues to accrue during any period of lay off or short-time working as the employment contract continues.

There are various rules and requirements, but in brief, if an employee is on lay off/short-time working for 4 weeks in a row or 6 weeks in a 13 week period they can apply for redundancy and if they have at least 2 years’ continuous service, a statutory redundancy payment.

If there is no contractual right to short-time working or lay off in an employment contract then it will be a breach of contract to force employees to take unpaid leave. Any unpaid leave will have to be agreed with the employees by consent.

  1. Can we require employees to take unpaid leave?

Again, the first thing to check are the contracts of employment. This situation is the same as suspending employment with no pay (lay off) mentioned in the above response.

If there is a contractual right to lay off then this can be used, but we would advise a short process of consultation before implementation otherwise exercising this right without prior consultation could be viewed as a breach of the implied obligation to maintain trust and confidence.

If there is no contractual right to require unpaid leave in an employment contract then it will be a breach of contract to force employees to take unpaid leave. Any unpaid will have to be done through agreement with employees with their consent. 

  1. What options do I have to reduce the number of staff?

 Asking employees to work from home will not be practical or possible for many employers – such as those that operate restaurants, hotels and other hospitality businesses.  Alternatively, the impact on business and expected future impact might already call for more drastic measures.  Those employers will inevitably be considering redundancies.

For unfair dismissal purposes, a redundancy situation exists if there is a closure of a business or workplace, or other diminished need for employees to carry out work of a particular kind.  In current circumstances, when there is expected to be a material adverse impact on the demand for goods and services for a sustained period, many employers will already be experiencing an obviously diminished need for employees.

Whilst many employers will therefore have a fair reason for making dismissals, they will also need to consider what constitutes a fair process in order to avoid liability for unfair dismissals.  A fair process involves a series of meetings with affected employees during which they are advised of the proposal to make their role redundant and the reasons for this.  They should be afforded the opportunity to understand the employer’s rationale and given the opportunity to ask questions and make suggestions that are considered by the employer and responded to.  Where appropriate, they should also be advised of the reason why their role has been identified as being redundant and allowed to comment on any scoring exercise that has taken place.

In normal circumstances, we recommend that a redundancy consultation process should consist of at least three meetings with the employees – the first to announce the proposal to make their role redundant, the second to allow the employee to ask questions and suggest alternatives and the third to confirm the decision and give notice of termination (which must also be confirmed in writing).

Usually such a process will take a minimum of 10 to 14 days.  That seems unrealistic in the present circumstances for many clients.  As such, provided that the key consultation points can be covered, we anticipate that such a process could be condensed to seven days – or even shorter in extreme cases.

Employers should also consider the following:

  • employees with less than two years’ continuous service do not have the benefit of unfair dismissal protection.  As a result, their employment can typically be terminated swiftly with little risk;
  • if wider scale redundancies are necessary, an employer should be able to demonstrate that it has given thought to alternatives or ways of mitigating the effects of the redundancies.  That could include inviting:
    • employees to take a temporary period of unpaid leave;
    • volunteers for redundancy to reduce the numbers of compulsory redundancies;
    • employees to accept a reduced salary; and/or
    • employees to accept a shortened working week with an associated reduction in salary; and
  • that any proposal to dismiss 20 or more employees from a single establishment within a period of 90 days will trigger an obligation to carry out a more formal collective consultation exercise.  This will create additional headaches for employers due to the need to elect employee representatives in most cases and the minimum 30 day consultation period that will apply.

Whilst it is to be expected that most employees will not welcome a request to take unpaid leave or reduce their salary, we would anticipate that the majority of them will appreciate the almost unprecedented current circumstances.  If they understand that the alternative is that redundancies will be required, any creative measures might be more appealing to them as, looking at this from an employee’s perspective, the job market is likely to be extremely difficult in the coming months with many people looking for work and fewer roles available.

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