Last updated 26th March 2020 at 10.00am
Please be advised that the information provided below is for guidance only and was correct at the time of publication. As the situation in relation to COVID-19 is developing and changing on a daily basis, it is recommended that you always check for the latest information.
A. Yes, an employee will be entitled to SSP if they are self-isolating because:
See below for information on the current rate of SSP.
Employers should also take care in reviewing each employee’s contract of employment as employees may also be entitled to additional contractual sick pay.
SSP is currently payable at £94.25 per week for up to 28 weeks. (Employers to note that this will increase to £95.85 per week as of 6 April 2020). This is payable from day one of any COVID-19 related absence.
On 17 March 2020 the Chancellor of the Exchequer, Rishi Sunak MP, announced that small and medium sized businesses with fewer than 250 employees (as of 28 February 2020) will be reimbursed for up to 2 weeks SSP per each eligible employee for any COVID-19 related absence. This will have retrospective effect from 13 March 2020. Employers are therefore highly advised to maintain a record of absence and any SSP paid. The government has also announced that SSP rules will be changed so that SSP is payable from day 1, rather than day 4 of absence.
The Prime Minister announced strict lockdown measures on 23 March 2020 that individuals should stay at home unless they need to go out for one of the following reasons:
It therefore appears that the Government are saying that, in addition to key workers, individuals can travel to work but only if the work really cannot be done from home. Employers should however be taking all possible steps to facilitate home working.
Employees who are working from home should be paid as normal and employers should consider implementing a working from home policy.
Employees in certain vulnerable groups (over the age of 70, with underlying health conditions or pregnant) have been strongly advised to follow social distancing and to self-isolate for 12 weeks. Employers should therefore be supporting any employees who fall within this vulnerable category to work from home if possible.
If it is essential for your employees to attend work in person then ensure you are implementing procedures to ensure that your employees are always 2 metres apart.
You should check the employee’s contract of employment. Employees do have a statutory right to a limited amount of unpaid time off to care for dependents in an emergency situation (usually only a couple of days at most). There is also a statutory right to parental leave.
The government announced that all schools would close on 20 March 2020 other than some provision remaining for the children of key workers and vulnerable children. Guidance has been published here on who may count as a key worker.
You could discuss with employees about whether working from home or flexible working is possible instead as it may be that they are still able to perform their work from home with some flexibility around caring for their children. Alternatively you can permit employees to take paid holiday.
There is no legal requirement to pay the employee for parental or dependant’s leave, or other discretionary periods of leave (unless the employee’s contract provides otherwise or the employer has specifically agreed otherwise).
You should also take care to ensure you are consistent among employees otherwise there is a risk of indirect discrimination if you treat employees differently without a good reason.
Businesses can make redundancies in the normal way, and current employment rights, protections and obligation will continue to apply.
However, if an employer needs to make an employee redundant in order to cut costs, they can instead discuss with the employee (and indeed should consider as an alternative) them becoming classified as a ‘furloughed worker’ (see below for more details). This would mean they would remain on the payroll, rather than being made redundant. Their employment would continue but they could not undertake any work for the employer while classified in this way.
Employers which have already announced or made redundancies or commenced redundancy consultation will need to consider whether and how the government’s furlough scheme may change their intentions. Employees are likely to bring this up on any appeal against dismissal or otherwise so employers will need to consider whether they can put any redundancies on hold or reinstate and furlough instead.
Yes, as per the Working Time Regulations 1998 an employer can require an employee to take mandatory leave however they must give employee’s two days’ notice for every day that they require the employee to take off.
For example, if you require an employee to take 5 days annual leave then you will need to give them 10 days’ notice before the date in which you require the leave to start.
Yes, as per the Working Time Regulations 1998 you can refuse an employee’s annual leave by serving a counter-notice. You must however give at least as many days’ notice as the amount of days you are refusing.
For example, if an employee has 5 days annual leave planned which you wish to cancel you must give them 5 days’ notice prior to the date on which the leave was due to start.
You will only be able to do this is there is an express right to do so in the employees employment contract allowing for the right to be laid off without pay. If it is not in the contract or agreed otherwise then you will need to pay employees for this time, which would defeat the object. In our experience not many businesses will have lay-off provisions in their contracts, in which case most will be reliant on so-called “furlough leave” (which is also likely more attractive to employees too). Beware forcibly laying off employees on no or reduced pay without a contractual right or express agreement to do so and it would likely be a fundamental breach of contract, meaning that the employee could sue for unpaid wages or resign and claim constructive dismissal.
On 20 March 2020 the government announced the creation of the Coronavirus Job Retention Scheme. This allows employers to “furlough” their employees as an alternative to making them redundant. They can then apply to HMRC for a grant of up 80% of the wages of each “furloughed” employee up to a maximum of £2,500 per month. If your employee’s employment contract does not include a provision for this then you will require their consent to be “furloughed”. This is hoped to be up and running by the end of April 2020 and will be backdated to 1 March 2020. We don’t yet have all the details on this scheme, including how it applies to those who have already been made redundant.
Employers are being urged to contact HMRC to explore this option as an alternative to making any redundancies.
All arrangements with staff must be clearly communicated and documented to help ensure that businesses don’t inadvertently commit to or assume liability for costs/payments above and beyond those covered by the government.
Other alternatives which business may want to consider is temporarily agreeing changes in duties, if there is particular work which needs to be done. Employers and employees can also agree that employees are able to take on alternative outside work to supplement their income.
Yes. As per GDPR ‘special category data’ includes medical information and personal data regarding an individual’s health and so consideration to this must be given. The Information Commissioner (ICO) have however issued some guidance here.
In essence, the ICO have indicated that you should keep staff informed about any cases within your organisation but that you probably don’t need to name individuals and that you shouldn’t provide more information than necessary.
Yes, however you will not necessarily need to collect lots of detailed information. It would however be reasonable to ask employees/visitors whether they have visited a particular country or are experiencing symptoms of Coronavirus.
In an attempt to minimise the data you collect you could request that visitors consider government advice prior to visiting your organisation and ask employees to call 111 if they suspect that they are suffering from any symptoms or have visited particular countries.
Employers do have a duty to take reasonable steps to ensure the health safety and wellbeing of their employees. Employers should take the following precautions such as:
For employees working from home, any equipment provided to them should be checked for health and safety compliance and employers are required to carry out a risk assessment of an employee’s home / remote working set up.
If you need specific legal advice please contact our specialist employment lawyers direct on 0808 239 5497 or send us an email.
Companies of all sizes have to navigate complex and ever-changing employment law obligations whilst at the same time deal with the demands of running a business.
At Hodge Jones and Allen we provide clear and commercial advice to business owners/managers and HR teams on all types of employment matters. We are results-focused and committed to helping achieve the best outcome and protect your business.
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An initial discussion with us will include exploring your funding options. You may have the benefit of funding through your legal expenses insurance provider. If you don’t, we’ll be able to provide clear and upfront cost estimates with you to ensure that you remain in control of your costs at every stage.
We will discuss options, risks and desired outcomes and agree a strategy with you. .We will go through the relevant time scales and next steps and advise how we can try to achieve a positive resolution quickly so that your time and the cost to your business is as minimal as possible.
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The Claimant, who had less than 2 years’ service, had claimed that he was harassed because of his sexual orientation and resigned allegedly in response. We were able to refute the allegations made throughout with clear evidence in support of the performance related concerns which had been raised with him.
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