By Jonathan Rennie, partner and employment law partner at TLT Solicitors’ Glasgow office
Pay and self-isolation
The position in relation to pay depends on the circumstances. If employees are unwell due to COVID-19 then normal sick pay policies and procedures will apply.
If you require employees to stay away from work as a precaution, it is likely that this should be on full pay, as a form of health and safety suspension.
The government has brought into force new legislation which allows all employees who are self-isolating, in order to prevent the infection or spread of COVID-19, to receive statutory sick pay (SSP).
The government has announced that the SSP rules will be amended, so that SSP will be available from day one of absence (rather than day four). At the time of writing, this legislation had not yet been published.
Employers should follow the latest government guidance for employers on COVID-19 and be flexible about evidential requirements for SSP.
Lay-off and short-time working
COVID-19 is affecting the global economy, evoking memories of the 2008 crash.
The repercussions for employers could include a diminution in work and the possibility of forced closures of public-facing businesses, such as restaurants, pubs and non-essential retail outlets.
Providing there is suitable contractual provision, an employer can ‘lay off’ an employee, without pay, where there is temporarily no work available. Note, however, that an employee who is away from work because of sickness absence will not be ‘laid off’ because the reason for absence is sickness, not lack of work.
Employees who are laid off may be entitled to a statutory guarantee payment of up to five ‘workless days’ in a three-month period. However, an employer may have their own policy in respect of a guarantee payment, which may offer an enhanced rate of payment. However, this is purely discretionary.
The maximum statutory guarantee payment is currently £145, made up of £29 per day for five days in any three-month period, unless an employee earns less than this (in which case it will be at their normal daily rate) or works part-time (the payment being calculated proportionally).
Short-time working allows an employer to reduce the hours worked or the level of pay either temporarily or indefinitely.
If you do not have short-time working or lay-off clauses in your contracts, it may be possible to obtain employee agreement to incorporating these into contracts, as a more palatable alternative to redundancy. Furthermore, a temporary reduction in work under short-time working will not break an employee’s continuity of service, which could make an employee feel more comfortable accepting this option.
A redundancy situation may arise as a result of forced closure of certain businesses, or by a reduction in work caused by large-scale self-isolating and ‘social distancing’. Employees with more than two years’ service are entitled to be taken through a fair redundancy dismissal process, and receive a statutory redundancy payment.
However, given that Covid-19 issues are likely to be relatively short-term, employers may wish to consider options short of redundancy.
One alternative may be to offer employees short periods of voluntary paid or unpaid leave, or an agreed temporary reduction in pay and hours (outside of the short-time working/lay-off scheme outlined above).
Any such arrangement must be agreed in consultation with employees. Be wary of solely relying on any variation clauses in your contracts of employment; these will be subject your duty to maintain employees’ trust and confidence. It will, therefore, be very difficult to rely on any such clauses to impose a contractual change. However, in certain circumstances, it may be possible to use a ‘dismissal and re-engagement’ process in order to force through a contractual variation.
Remember that if you are undertaking a large-scale dismissal and re-engagement process, then collective consultation obligations will bite. The same applies to any large-scale redundancies.
Under the Working Time Regulations, it is possible to require workers to take annual leave at a time specified by the employer. Employers must give at least twice as much notice as the period of leave they are requiring employees to take.
So, during a period of shutdown or a temporary downturn in work, it may be possible to ask employees to use annual leave until the situation returns to normal.
This may, however, be difficult to manage from an employee relations perspective. It would also have to take account of pre-booked leave and would have to be implemented in a non-discriminatory manner.
Time off to care for dependants
In the Spring 2020 Budget, it was announced that SSP will also be available for those who are caring for those who have been advised to self-isolate. However, this is not explicitly covered in the new legislation that was published on March 12, 2020. So, those caring for people who are self-isolating will only be entitled to SSP if government guidance changes so that they are also required to self-isolate.
Employees who are off work because they are
– caring for someone who has become unwell; or
– caring for someone self-isolating in accordance with government guidance; or
– taking time off because they need to look after children or arrange childcare because of school closures
may wish to make use of the statutory entitlement to time off to care for a dependant.
There is no statutory right to pay for this time off, but you may pay employees for this time off, at your discretion.
The amount of time off an employee takes to look after someone must be reasonable for the situation. It is intended as a short-term solution to cover an emergency situation. If more time is needed, then you may wish to consider other options, such as home-working, holiday or an agreed period of special leave (whether paid or unpaid).