How far can a purely legal analysis get us?
We are facing an unprecedented situation. Strict curbs have now been announced by the Prime Minister as the country faces a state of emergency and there is a stronger emphasis placed on staying at home to protect the NHS and save lives.
Even if we restrict our focus to employment issues, we are conscious that the law cannot provide all the solutions. In our experience good leadership and a clear communication strategy are the most important attributes that any organisation can deploy as the virus continues to spread. It is equally important to keep up to speed with Government and sector-based guidance, which is changing on a daily basis.
Given that, it can still be helpful to be aware of the legal framework, and how existing principles and guidance are likely to be applied in this new environment. In that context, we hope that our answers to the questions that follow will be helpful. In all cases, the starting point will be the relevant contractual terms, and the answers to the following questions should be read in that light.
What does the latest stay at home guidance mean for our organisation?
The latest restrictions (announced by Boris Johnson on the evening of 23 March) state as follows:
You should only leave the house for one of four reasons:
- Shopping for basic necessities, for example food and medicine, which must be as infrequent as possible.
- One form of exercise a day, for example a run, walk, or cycle - alone or with members of your household.
- Any medical need, or to provide care or to help a vulnerable person.
- Travelling to and from work, but only where this absolutely cannot be done from home.
These four reasons are exceptions - even when doing these activities, you should be minimising time spent outside of the home and ensuring you are 2 metres apart from anyone outside of your household.
Some types of business have been told to close completely, but if your organisation is not one of those, then staff can still travel to come to work where this “absolutely cannot be done” from home. However social distancing must be applied in the workplace setting.
Business and private travel (other than to a place of work) will not be permitted.
Do we have to pay staff who have been told to self-isolate but are not sick?
Emergency changes to the statutory sick pay rules came into effect on 13 March, which mean that staff who are self-isolating in accordance with official public health guidance will be eligible for SSP, provided that they are unable to work from home. ACAS guidance adds that it is “good practice” to pay contractual sick pay too in this situation, where the employer provides this.
Further emergency changes to the underling primary legislation have now been included in the emergency Coronavirus Bill, which will suspend the three waiting days and streamline the requirements for medical evidence for the duration of the outbreak. Employers with fewer than 250 staff will also be eligible for a rebate of up to two weeks’ SSP per employee, where it is COVID-19-related.
What about staff who have to stay home because of school closures or other COVID-related reasons?
There is no obligation to pay staff in this situation, unless they are able to work from home. However, they may have a statutory entitlement to take at least some of this time as unpaid dependents’ or parental leave, or be able to take paid holiday over this period.
It is possible that there will be further changes in this area, but, as things stand, employees will not be eligible for SSP unless they are themselves required to self-isolate and cannot work from home.
Can we instruct staff to take their holidays at a time to suit the business?
This is best achieved by agreement, but some contracts will allow employers to require their employees to take holiday at a specified time, though a period of notice will normally be required. If there are no provisions in the contract, the default position under the Working Time Regulations for statutory holiday is that the notice given must be twice as long as the period of leave to which it relates.
Should we be making changes to our occupational sick pay?
It is certainly worth reviewing the terms of any occupational sick pay scheme as part of a wider risk-assessment. Whether or not it would be feasible to change it at this stage to respond to the outbreak will depend on whether the scheme is discretionary or contractual, and the nature of any changes proposed.
Even if changes are not possible, it would be sensible to communicate with staff about how the existing scheme will be operated in the context of a major outbreak.
Can we re-deploy staff to cover for sickness absences?
Yes, with their agreement. In some cases the terms of their contract, in theory at least, will allow the employer to instruct them to cover another role. It would not be reasonable to expect them to perform a role, even in the short term, which is beyond their capabilities or puts their health and safety at risk.
What adjustments do we need to consider for vulnerable staff?
There is a greater onus on employers to consider adjustments for staff who are most at risk if they contract the virus, particularly if they are pregnant qualify as disabled under the Equality Act.
Can we lay off staff without pay?
No, in the absence of a contractual right to do this. However, this can be done by agreement, particularly if it is the only alternative to the employer’s business going under. If there is a lay-off clause in the contract, complex statutory rules are likely to be engaged, which are beyond the scope of this note.
The Government has recently announced a scheme to cover 80% of the wage costs (up to a maximum of £2,500 per month) of employees of UK businesses laid off because of the current crisis, for a minimum of three months. This may well be a very attractive option for many businesses and their employees, but will involve negotiations with any recognised trade union.
However, if you have got to the point of contemplating lay-offs, you will probably need to consider starting individual (and if necessary collective) redundancy consultation, if only to prepare for when the Government scheme ends.
Where can I find out more information?
Here is a selection of the general resources on the outbreak, which should be supplemented by appropriate sector-based guidance. All advice is subject to change on a daily basis, so you will need to check regularly for any updates.