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.
Zoe Lagadec, employment law expert with Mulberry’s Employment Law Solicitors 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 your solicitor 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.
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