Preparing for Coronavirus – what are your legal obligations as an employer?
Tughans’ employment team are currently advising clients on their legal obligations as employers arising from the evolving Covid-19 (“Coronavirus”) outbreak, as the number of confirmed cases in Northern Ireland increase and both the UK government and Assembly escalate preventative measures.
The following advice note is provided as guidance only. You should take specific advice on your individual circumstances. This advice note is current at the date of issue, 24 March 2020.
Our employment team is closely following the Coronavirus outbreak and can provide responsive and immediate advice, as the situation requires.
The UK Government has announced a series of emergency measures to provide assurance to employers and employees during this period.
- Coronavirus Job Retention Scheme
This extra-ordinary Scheme is available to all employers in the UK and creates a new concept of “furlough”, during which an employee is not required to work but continues to receive at least 80% of their usual pay, with the cost to their employer reimbursed by the UK government.
This Scheme is designed to allow employers to retain employees who would otherwise have been laid off due to the Coronavirus outbreak, and protect the income of those persons. Employees cannot do any work an employer who has furloughed them. If furloughing an employee will result in a reduction of pay, employers must seek employee consent to this change unless suitable contractual arrangements for reduced work and pay are already in place.
The Government will meet the cost to employers of 80% of furloughed employees’ salary, up to a maximum of £2,500 per month (assumedly gross). The Scheme will run for an initial period of three months, which may be extended. This scheme will be operated by HMRC via an online portal and backdated to the start of March. Employers can top up the remaining 20% but are not required to do so. There will be no repayment requirement or maximum claimable.
The Chancellor has indicated that furlough will cover workers on the PAYE system, and that it may include some workers on zero-hours contracts, depending on their arrangements. It is not clear if the scheme will extend to those on PAYE with “worker” status.
We await further information on how furlough will interact with other employment law rights and in particular those around sick leave and pay. However, we understand that as the Scheme is subject to employment law, continuity of service will be preserved and entitlements such as annual leave will continue to accrue.
Where a certain amount of work is still required (and permitted) and employees cannot work from home, it may be necessary to carry out a process of pooling and selection before furloughing. You should seek advice on your individual circumstances.
Certain employees have an implied right to be provided work and it is not clear how furlough can be applied to them.
- Statutory sick pay cover
The Government will meet the cost incurred by employers with fewer than 250 employees of providing statutory sick pay (SSP) to qualifying persons who are absent due to Coronavirus, for up to 14 days.
SSP will be payable from the first day of Coronavirus related absence.
- Statutory self-employment pay
Further emergency measures have been announced to cover those who would not ordinarily qualify for SSP. This new entitlement would allow self-employed persons and “freelancers” access “statutory self-employment pay” to cover their loss of income, capped at the lesser of either £2,917or 80% of their monthly earnings, averaged over the last three years.
Coronavirus related absence
There are a number of aspects to dealing with Coronavirus related absences.
Employees with confirmed or suspected Coronavirus should certify their absence. The usual rules on certification of absence still technically apply, meaning that an employee is entitled to self-certify for the first seven days of absence, after which they can be required to provide medical certification.
Employees can receive appropriate certification from the NHS helpline and should not attempt to attend their GP for this purpose.
It is likely that some discretion around the usual certification process will be required, given the difficulties caused by self-isolation, availability of testing and pressure on the NHS helpline.
In their official guidance, the Government “strongly suggest that employers use their discretion around the need for medical evidence for a period of absence where an employee is advised to self-isolate due to suspected COVID-19.”
- Employees with Coronavirus
These employees should receive sick pay in accordance with your internal procedures.
Employees who are not sick but are self-isolating in accordance with current medical advice can be required to work from home. Where this is not possible and the employee is rendered unable to attend their workplace, employers should consider their eligibility for sick leave and pay.
To be eligible for statutory sick pay, an employee must be “incapable” of work, as defined in the Statutory Sick Pay (General) Regulations (Northern Ireland) 1982.
Emergency legislation has been passed which updates the 1982 Regulations to make it expressly clear that an employee undergoing self-isolation due to Coronavirus is incapable for work and will be eligible for statutory sick pay.
This means that an employee who is self-isolating in accordance with current medical advice should be treated as on sick leave and will be entitled to statutory sick pay and any enhanced entitlement under your internal procedures.
- Employees who are not sick and told not to work
Where there is work available and can be completed by an employee, but they have been instructed not to attend work or carry it out for whatever reason, they should receive their usual pay.
- Employees who do not want to attend work.
Employees who are otherwise able and permitted to attend work may not want to because they are concerned about being infected. As an employer, you have a duty to protect your employees’ health and safety and should listen to their concerns. If the concerns are genuine, you should try and resolve them. It may be possible to offer home working or arrange a period of annual or unpaid leave. Ultimately, refusing to attend work can be a disciplinary offence, but any eventual dismissal must be within the range of reasonable responses available to you in the circumstances, which could be problematic. You should take specific advice on how to proceed.
- Employees with care responsibilities.
Employees may request time off to care for an affected dependant, deal with school closures or similar. This will engage their right to time off for a dependant. This leave is unpaid and gives reasonable time off to deal with an emergency or make arrangements for further care. Employees can take holiday or parental leave to cover longer periods. You should consider what’s reasonable in the circumstances.
- Employees with underlying conditions.
You should take particular care with employees who have underlying medical conditions which might place them at increased risk, considering your duties under health and safety legislation and also the Disability Discrimination Act 1995, where applicable.
You should communicate with them regularly and act in accordance with current medical advice for vulnerable persons. This may prevent such employees from working, unless they can work from home. You may also need to consider other options, such as furlough or other leave types.
- An employee falls ill at work.
If the employee has relevant symptoms, your health and safety obligations will be engaged. You should isolate the employee and follow the UK government’s official guidance.
- An employee with Coronavirus attends work.
In this circumstance, you should isolate the employee and follow the UK government’s official guidance immediately. Your case will be assessed by the relevant public health authority. If your workplace has to close temporarily, you can ask employees to work from home if this is possible and in the absence of any specific contractual arrangements, employees should receive their usual pay.
Employees who are not sick, and who are not being treated as on sick leave, can be asked to work from home if this is possible. If an employee is working from home, they should receive their usual pay. You may need to take additional measures to address issues around health & safety, company equipment, working time, data security and confidentiality which arise due to home-working.
Short-time working and lay-off.
If your workplace is forced to close or business is reduced, this might engage existing rules on short-time working and lay-off. It may also engage the Government’s emergency Coronavirus Job Retention Scheme, as set out above, and you should consider this first.
You should check your employment contracts to ensure that they contain relevant clauses on reducing employee hours and pay. If they do, you will be able to reduce your employees’ hours (“short-time”) or lay them off. The default position is that employees should receive their normal pay unless their contract allows for unpaid or reduced pay lay-off.
A suitable existing lay-off clause may allow you to place an employee on “furlough” under the Government’s Coronavirus Job Retention Scheme. You should consider this before laying off staff, given the potential implications for employees and the risk of triggering a redundancy situation.
Employees who are on unpaid short-time or lay-off are entitled to guarantee pay. This is currently a maximum of £29 a day for 5 days in any 3-month period. Employees on short-time or lay-off can claim that they are redundant after 4 consecutive weeks, or after 6 weeks in a 13-week period. You should monitor these time frames carefully. These payments are much less than those available during “furlough”, during which the Government will cover 80% of an employee’s wages, up to £2,500 per month.
If your employment contracts do not allow you to reduce employee hours and pay, you may be able to consult with your employees about your business circumstances and reach an arrangement for an emergency period of furlough or partial closure.
This is preferable to unilaterally implementing short-time or lay-off, which would be a breach of contract entitling your employees to resign and allege constructive dismissal. You should take advice in these circumstances.
Health and safety.
All employers have a legal duty to provide a safe place and system of work. Specific duties exist for pregnant employees. You should consider current medical advice and what steps are appropriate in your circumstances. This may change depending on the nature of your business and the risk of contact with infected persons. You should take specific medical guidance if you have concerns.
Data concerning health is considered as special category personal data under the GDPR. You should consider the enhanced requirements for processing such data. It is likely that you will have to communicate news of confirmed or suspected cases to other employees who might be affected. You must balance your health and safety and data protection obligations. For example, you may be able to communicate necessary information to your employees without disclosing information which would identify the individual employee who has (or may be) infected.
If you have any concerns or queries arising from the above, please contact a member of the Tughans’ employment team or your usual Tughans’ contact, who will be able to refer you.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.