Guidance for employers on dealing with the current COVID-19 outbreak
20 MAR 2020
Sickness absence & pay
If you suspect that your employee may have COVID-19, it will be reasonable for you to require the employee not to attend the office, in order to comply with health and safety obligations to other staff. Your employee will be eligible for statutory sick pay from day one and government guidance asks employers to use their discretion and respect the medical need to self-isolate in making decisions about sick pay.
However, if the employee is being sent home where there is no government guidance to that effect, the employee would be entitled to be paid in the normal way because they have a contractual right to be provided with work (most employees do). There is a duty to pay wages for work that the employee is willing and able to perform, which the employer’s actions have prevented them from carrying out.
Sick pay if they do not have COVID-19?
There has been a government announcement about a temporary change to statutory sick pay rules to ensure that those who are self-isolating in accordance with government guidance are entitled to statutory sick pay from day one of their absence, even if they have not been infected with COVID-19.
The Employer might also have a company sick pay scheme. In those circumstances, the company sick pay will depend on the terms of the sickness absence policy.
Currently, the government suggests that employers should use their discretion around the need for medical evidence where an employee is staying at home in accordance with the government’s public health advice.
Temperature screening at work
The Employer should be allowed to take employees temperature when they arrive at work as long as employees consent to it. If this reveals that an employee has a high temperature, they should then be required to self-isolate in accordance with current government guidance.
Sickness absence procedures
Absences related to COVID-19 should be treated in exactly the same way as any other type of absence. Employees should report sickness absences in the normal way.
Home working & pay
Normally employment contracts have a provision that allows employers to direct where an employee works, if so, employers have the right to direct their employees to work from home.
However, even where there is no such contractual entitlement, in the current circumstances, it is likely to be reasonable to require employees to work from home, particularly given that government guidance encourages home-working wherever possible.
On the other hand, an employee is not entitled to demand to work from home simply as a protective measure, except if an employee is in a high-risk group because of their age or as a result of under-lying health conditions. If you refuse to allow home working for such groups, it would likely to amount to indirect age or disability discrimination.
Most schools have now been closed and employees are likely to need to stay at home with their children. In such instances, staff could be invited to take other types of leave, such as parental leave, perhaps on a part-paid or more flexible basis than usual. Employees could also take a period of unpaid time off to deal with an emergency situation involving a dependant. Employees have a right to unpaid time off to deal with emergency situations involving a dependant, including where there has been an unexpected disruption to caring arrangements.
The employees remain entitled to their normal pay while working (provided they are carrying out their normal duties) at home.
For longer periods of closure, employers will need to consider whether they are contractually entitled to place staff on short-time or temporary layoff, although such provisions are relatively uncommon outside certain industry sectors.
Under the Working Time Regulations, employers can require employees to take all or part of their statutory annual leave at specified times by giving them the appropriate amount of notice.
Any holiday to which employees are entitled in excess of their statutory entitlement will be governed by the rules of the employer’s holiday policy.
Pay cuts & pay freeze
Imposing a pay cut or requiring employees to reduce their hours unilaterally will generally amount to a breach of contract. Employees could choose to resign and claim constructive dismissal, or (more likely) protest against the pay cut, keep working and bring unauthorised deduction from wages claims in the employment tribunal or a breach of contract claim in the county court. The position may be different if the contract allows the employer to reduce an employee’s hours.
If employees are prepared to agree to a pay cut or reduced hours and pay, perhaps on the understanding that the arrangement will be temporary and revisited once the current crisis is over, it would be possible to implement a pay cut or change in hours by consent. Employees may be willing to agree to reduced hours or a pay cut in circumstances to avoid measures like redundancies.
It will generally be a breach of contract to require an employee to take a period of unpaid leave, entitling the employee to resign and claim constructive dismissal, or bring an unauthorised deduction from wages claim in the employment tribunal or a breach of contract claim in the county court.
However, employees may be willing to agree to take a period of unpaid leave.
There is a requirement for employers to consult with employees where an employer is proposing to dismiss 20 or more employees at one establishment within a period of 90 days. Consultation must take place for 30 days if there are between 20 and 99 redundancies and for 45 days if 100 or more redundancies are proposed. It is not clear whether the current pandemic would be regarded as special circumstances making the normal periods of consultation not reasonably practicable.
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Yulia BarnesManaging Partner
Yulia Barnes is our Managing Partner. She is an experienced solicitor and advises on a wide range of contentious and non-contentious matters for both private and corporate clients.Yulia started her legal career at a large international Magic Circle firm. She then became a partner at a regional law firm and headed a Dispute Resolution Department. She then moved in-house before starting her own Boutique practice, Barnes Law, with the aim of providing exclusive services to high net-worth individuals and privately-owned businesses. More details can be found on her LinkedIn profile.
Expertise Yulia and her team are widely recognised for their professional and practical approach to matters. She is committed to ensuring that her clients’ objectives are achieved in the most cost-effective way possible.
Approach Yulia has a wealth of experience working with businesses of all sizes: from large multinational corporations to start-ups. She has particular expertise in a hospitality industry, investment funds, private and corporate clients, and focuses on startups and technology-driven companies. Yulia brings the same level of attention to detail, professionalism and a personal touch to every case and client, and truly immerses herself in her clients’ businesses. She prides herself on her problem-solving, commercially astute approach and her track record of partnering with clients to help them achieve their strategic objectives.
Will joined Barnes Law as an Associate Solicitor in Spring 2023, shortly after qualifying in September 2022.
Will works mostly on real estate and corporate/commercial matters. Will enjoys providing advice on transactional matters.
Away from the office, Will can be found reading or playing golf. While he played rugby until university, and rowed throughout his degree, he now tends to watch both from the sidelines. During the winter he can also be found skiing.
Will plans to continue developing his legal skills and experience at Barnes Law, under the expertise and guidance provided by Yulia.
Mark is an experienced solicitor whose practice areas include intellectual property (IP), IT, data protection and general commercial law.
Mark advises businesses of all sizes – from sole traders to corporations. Among his clients are: clothing and lifestyle brands, restaurants and food suppliers, IT companies, banks, hedge funds and venture capital firms, education providers, medical and pharmaceutical brands.
Outside of his practice, Mark also advises members of the Institute of Directors as part of its Directors’ Advisory Service.
- Prosecuting a UK trademark application on behalf of an education provider and representing them in related UK IPO opposition and revocation proceedings;
- Advising a publisher and a delivery business on data protection matters, B2B and B2C Ts & Cs of sale, website and app Ts & Cs, all aspects of global brand protection;
- Advising footwear brands, alternative asset managers and hedge funds on their global brand protection, including overcoming various refusals, representing them in opposition proceedings and settlement negotiations;
- Representing a central bank in opposition proceedings before the UK IPO;
- Advising a lifestyle brand concerning trademark clearance and protection, negotiations for a website/app development and maintenance agreement.
Ioulia TatawatFamily Law Adviser
Ioulia has a solid background in family law and offers guidance, clarity, and support to clients during one of their most challenging times in their life.
She advises on all three pillars of separation: divorce, children matters and financial settlements. Ioulia is a member of Resolution and is keen to try to settle matters at early stages.
Ioulia is dedicated to assisting clients and navigating them through their legal matters with clarity and support.
Alex joined Barnes Law in September 2023 after finishing his master’s degree in law. Prior to joining Barnes Law, Alex worked in property litigation at Ashfords. Alex assists Yulia on a variety of both contentious and non-contentious matters.
Outside of the office, Alex enjoys reading and hiking. Prior to working in law, Alex was a competitive tennis player.
Alex continues to develop his skills in legal practice under Yulia’s guidance, he plans to sit the Solicitor’s Qualifying Exams (SQE) in 2024.
Mehves joined Barnes Law in August 2023, right after graduating from Queen Mary, University of London (LLB Senior Status). As part of her qualification journey, Mehves is currently pursuing her Legal Practice Course (‘LPC’) at the University of Law. She also holds a degree in European Union Law from Maastricht University, Netherlands.
Mehves works closely with Yulia on a variety of contentions matters and also writes Barnes Law’s legal blogs, manages social media accounts and is responsible for marketing.
Outside of work and studies, she enjoys running, tennis and yoga.
Mehves is looking forward to developing her legal skills at Barnes Law.
Julia PodgornovaInvestor Relationship Manager
Julia guides clients in making important business decisions based on comprehensive risk assessment and strategy. She supports investors in devising strategies designed to maximise each business’s potential from pre-seed to IPO.
Julia’s particular area of expertise are IT start-ups at different stages. Julia supports business through their fund-raising journey. As an Investor Relations Manager, Julia communicates with investors to facilitate a smooth round and legal part of each transaction.
In her free time Julia enjoys sailing, ballroom dancing, art exhibitions and travel.