Guidance for employers on dealing with the current COVID-19 outbreak

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.

Workplace closures

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.

Unpaid leave

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.

Redundancy

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.

For more advice please contact us on info@barnes-law.co.uk