19th March 2020
Corvid-19 and Employment – what are your options as an employer?
With all the rapid changes that have occurred over the last few days, we would like to share a guest blog from Helen Astill, an experienced HR consultant from Cherrrington HR.
Please be aware, that the situation has now changed and more support for business has been announced. You can find a good summary here,on the Birmingham Chamber of Commerce website
Quite understandably I have had lots of queries about what to do in various situations regarding staff: that have been abroad; showing symptoms; not showing symptoms but have been in contact with someone who has; are over 70 years of age or has one of the underlying medical conditions listed by the government that suggests that they are in a higher risk category; lives with someone in the higher risk category, not showing any symptoms but doesn’t want to come to work; or very recently has children who will no longer be able to go to school when they close on Friday etc.
And most of these situations result in questions about what to do and how much should people be paid. In addition, I have had queries from businesses who are now struggling with a sudden cessation of income and wondering what their options are from a financial perspective.
The current position is:
• Self-isolating is now considered to be sickness for SSP purposes (not just the normal expectation of incapacity.)
• Current SSP rules apply, with payment from 4th day.
• Employers pay all SSP.
What has been proposed in the budget is that:
• SSP to be payable for Coronavirus related absences (including self-isolation) from day 1 [No mechanism announced yet for recouping the SSP, but that will follow at some point. It is believed that this will be backdated to 13th March, but we await confirmation of that date.]
• Reimbursement of SSP to employers with fewer than 250 staff, for up to a fortnight’s absence for coronavirus type issues.
As things stand now, people in the more vulnerable categories are entitled to SSP for up to 12 weeks because that is the period they are currently being told to self-isolate for (even though the employer will only be able to recoup 2 weeks of that from the government). A failure to pay SSP would not only be an unfair deduction from wages but it would probably be an act of discrimination: sex discrimination for those pregnant, age discrimination for those over 70, and disability discrimination for those with underlying medical conditions.
If an employee is sick for more than seven days, their employer can ask for evidence that they are sick. This usually takes the form of a fit note (or note from the NHS 111 service). Employees may face challenges obtaining a fit note because those with coronavirus symptoms are currently advised to self-isolate for 14 days and not to go to their GP and so you are advised to rely upon self-certification for the moment, but keep good records so that you can make your claim when the system is in place. If you use the Breathe HR system (or any other HR system), you could add a Corvid-19 sickness category to the drop-down sickness category list to ensure that you have a reliable record. If you use sickness absence trigger systems such as the Bradford Factor, you may have to consider either suspending it or deducting Corvid-19 related absences to ensure that people are being treated fairly.
However, if the employee is able to work from home and you have sufficient work for them, they should be paid at their normal rate.
If you have an employee who has chosen not to come to work, but is not showing any symptoms of the virus or is not self-isolating because they are living with someone who has shown the symptoms, they are not eligible for SSP (or any other sort of company sick pay) because they are not sick. These are people who may be concerned that they may pick up the virus and pass it onto a vulnerable relative. If they can’t work from home, you could offer the option of taking paid leave or unpaid leave, but ultimately if they refuse an order to return to work, it could be a disciplinary matter. However, you are urged to be compassionate and sensitive to their worries, as they are probably incredibly worried about the situation and are likely to respond emotionally rather than rationally. The ACAS website is very informative on these matters and is kept up to date – see https://www.acas.org.uk/coronavirus
And now we have the situation that the schools are being closed – probably until the autumn term at the earliest. I am normally the first person to say that working from home is incompatible with looking after dependants, but we are living in exceptional times, so we need to make exceptional adjustments. It is better to have an employee who is partly productive than one who is not productive at all (especially if you may have other staff incapacitated by the virus) so adapting to the situation is better than nothing. As I said above, if they are working from home (and this can include online training or planning), they should be paid the normal rate of pay.
Don’t forget that you should ensure that the work can be done safely from home and that you should put in place a homeworking policy. If you haven’t already got one, please get in touch. You need to consider things like H&S and GDPR. Should employees have company IT equipment and mobile phones? Ideally, they should not be using their own personal equipment unless you are happy that it will not introduce viruses (of the computer variety!) into your systems or compromise your data.
However, if the work the employee does is one that cannot be done at home, then you have a number of options: you could ask them to take paid annual leave or unpaid emergency domestic leave (for a few days to set up care arrangements.) If they have no-one else to look after the children (especially since any grandparents over the age of 70 should be in social isolation) you may use unpaid parental leave. This allows employees to take up to four weeks of unpaid leave (per child) in any one year up to a lifetime maximum of 13 weeks before the child’s 18th birthday.
Don’t forget that for some people you may need to consider what you will offer with regards to bereavement leave. There is new legislation coming into effect in April with regards to paid Parental Bereavement Leave for those losing a child under the age of 18, so if you haven’t already got a policy for that and need one, please get in touch.
But what if the business is suffering financially? You have a few options:
If you have a layoff or short term (LOST) clause in the employees’ contracts, you can lay them off.
This means that you can send them home and “lay them off” or provide short term working (if it is less than 50% of their normal work). It is a form of temporary redundancy. To do this you would still have to pay for the hours they work (if it is short-time) or a minimum of £29 per day (£30 from 6th April). However, this is paid for a maximum of 5 days in any 3-month period (i.e. £145 or £150 depending on the dates).
If the employee has been off for 4 weeks in a row or 6 weeks in any rolling 13 week period he/she could then write to you saying that they consider themselves as being constructively dismissed by reason of redundancy and unless you wrote back saying that you envisaged that work would be back to normal within the next 4 weeks for at least a period of 13 weeks, they would be entitled to receive their statutory redundancy pay.
However, if you haven’t got a LOST clause in their contracts, you don’t have the legal right to do this. You could of course discuss the situation with staff, and they may agree to vary their terms – but if not, you have to continue paying them full pay – even if you send them home.
And of course, redundancy is an option if you have no other choice. But the government is urging employers to consider the finance packages that they are putting in place to try to preserve as many jobs as possible.
Here are some other links that may be useful in the coming weeks and months. They are updated regularly so do check with them to see if the situation changes.
More about Helen
Based in Worcestershire, Cherington HR is run by Helen Astill, who has considerable experience in all aspects of practical human resource management and development, gained from a variety of senior positions in both public and private sectors, including several years as HR and Support Services Manager at the global engineering group GKN plc.
You can contact Helen here if you’d like to talk about your particular business situation.