Since the coronavirus outbreak
in the UK, the Government has responded with a raft of new measures to help employees
and employers.  Although the
circumstances are exceptional, employers need to take care that they comply
with the usual employment law requirements. These changes have been pushed
through quickly and it is uncertain how some of these will play out.

John Cato of Witan Solicitors of Birmingham and Northampton responds to some of the big questions arising out of these changes, with a focus on statutory sick pay and the new scheme to help employers avoid making their staff redundant.

You should check the Government website for the
latest guidance in conjunction with this article, as the guidelines on the
coronavirus (Covid-19) are changing daily and speak to us for specific advice
for your business.

What are
the changes to certifying for statutory sick pay (SSP)?

Employees usually have to provide a doctor’s certificate after the first seven days of absence. In a press release, the Government urged employers to use their discretion about what evidence, if any they ask their employees to give. To avoid spreading the virus and doctors’ surgeries becoming overwhelmed, employees can now provide an isolation note from NHS 111. The other usual eligibility criteria for SSP still apply.

Can a
self-isolating employee claim SSP?

Yes, where the employee is unable to work from home and is self-isolating following guidance from Public Health England, Public Health Wales or NHS Scotland, they will be able to claim SSP from day one. At the time of writing, this means that they are absent from work because either the employee or someone in their household has symptoms of coronavirus. Previously employees could only claim SSP if they were actually ill.

When is
SSP payable for employees who are unable to work because of coronavirus?

SSP is
now payable from the first day of absence; usually it is only payable on day
four. The regulations are not yet available, but this change should apply
retrospectively from 13 March 2020.

Can an
employee claim SSP who is staying at home because they are vulnerable, or they live
with someone who is ‘shielding’?

No. The current
changes to the SSP regulations do not cover this scenario.

Can we
claim back SSP?

Smaller
businesses (employing less than 250 people) will be able to claim back the
first 14 days’ SSP from HMRC. The regulations have not yet been published but
this should apply retrospectively from 13 March 2020.

Do we
have to pay company sick pay to self-isolating employees?

This
depends on the wording of your contracts or sick pay scheme but it is unlikely
that self-isolating will be expressly covered. The trade unions are making the
case for sick pay clauses to be interpreted in line with the changes to SSP,
but there is no case law requiring this.

Do we
have to pay staff I have sent home?

Restaurants,
cafes and pubs have been ordered to close or only sell take-outs. Many shops
have been ordered to close or limit their business to online sales. Initially
requested by the Prime Minister, this became law on 26 March 2020. Many
employers have sent their staff home.

If you
have not already made employees redundant, you have to pay their usual wages or
SSP to those off sick or self-isolating, unless employees are on short-time
working or temporary unpaid lay-off.

What are
short-time working and lay-off?

Short-time
working is working less than half the contractual hours. Lay-off means no work
and no pay. You can only put staff on short-time working or lay-off if your
contracts include clauses allowing this.

Otherwise
you can ask your employees to agree to short-time working or lay-off. This may
lead to the employees being able to claim a redundancy payment.  Furlough leave may be a better alternative.

What is
furlough leave?

An
employee who is not working and is temporarily absent from work is described as
being on furlough leave.

What
government support is there to pay employees on furlough leave?

You will be able to recover up to 80% of your employees’ usual salary or wages (to a maximum of £2,500 per month) plus employer National Insurance contributions and 3% pension contribution through the government’s job retention scheme.

Unless
you have the contractual right to lay-off employees, you will need their
consent to be furloughed. We can advise you on how to reduce your employee’s
salary to ensure all their pay is covered by the scheme. We recommend getting
employees to sign a furlough leave agreement.

When does
the scheme start?

The
scheme will apply from 1 March 2020, initially for three months. However, the
online service is not expected to be up and running until the end of April.

Which
employees can be furloughed?

There are
conditions to be met. The scheme only applies to employees you employed before
1 March 2020.

If you
need to keep some staff working, you will have to make some difficult decisions
about who to keep and who to ask to take a furlough.  We can advise you on how to safely select
employees to put on furlough leave, without risking discrimination claims. If
you have already made employees redundant, you may be able to rehire them and
recover salary through the scheme.

Can
employees take holiday when on furlough leave?

Although
this is not covered in the guidance, it is expected that employees who have
booked holiday will still be able to take this during furlough leave.

When can
I get employees to return from furlough leave?

You
should include in your furlough leave agreement that you can require employees
to return to work on their usual pay, even if this is before the scheme comes
to an end.

We can
help you support and retain your staff and manage the difficult employee
relations issues arising from these unprecedented challenges.

Please email our employment law team.

This article is for general information only and does not
constitute legal or professional advice. Please note that the law may have
changed since this article was published.