The continuing spread of coronavirus is concerning and will be unchartered territory for employers. The sharp fall in the markets shows the effect it is already having on the world economy and some UK businesses will already be feeling the impact on trade. But what about your staff – should you be taking positive action – what about employees who self-isolate – are they entitled to be paid?
Employers will need to heed the latest government guidance before sending employees out to affected areas.
Even where travel is not to directly affected areas, you would be best advised to limit employee travel abroad to essential business travel only.
There is no requirement to increase your normal workplace cleaning regime but a communication to staff could be issued which includes:
– how to reduce the risk of viruses spreading and how to self-isolate by circulating the latest NHS guidance. https://www.nhs.uk/conditions/coronavirus-covid-19/
– who to speak to in the event of any concerns?
Sickness and Self-isolation – who pays?
An employee who does have symptoms and follows the absence reporting procedure will be entitled to their normal sick pay entitlement, this could be Statutory Sick Pay (SSP) if they qualify or your business may top this up contractually to full pay or half pay for a specified period of time.
For those who are not showing symptoms but follow medical advice to self-isolate however, the position is not straight forward. A recent detailed review of the SSP regulations by Emma Ahmed of Hill Dickinson LLP Solicitors resulted in the conclusion that, provided an employee is issued a notification to self-isolate, such employees will be entitled to SSP (currently £94.25 per week). The government has just today announced that the usual 3 waiting days when an employee does not get SSP, will not apply for Coronavirus cases such that they will be entitled to SSP from day one.
If the relevant employee has a contractual entitlement to full or half pay during a period of sickness absence, they may well argue further that they should get full pay as if it were normal sick leave rather than just SSP. Many employers will understandably want to minimise the costs associated with self-isolation, particularly when the future extent of the spread of the virus is unknown.
Greggs has announced this week that it will pay normal pay whereas Wetherspoons announced last week that it will only pay SSP.
For those employers who only pay SSP, then the sick pay cost exposure is more limited. For those employers however who do provide full or half pay for periods of sickness absence, the exposure is potentially much greater.
Certainly, ACAS have advised that it would be “good practice” for such employers to pay contractual sick pay as normal.
Whilst legally businesses should be able to pay SSP only to those who are medically advised to self-isolate (unless their contractual sick pay can be reasonably interpreted to cover circumstances such as these) the decision may still be more difficult. Employees will probably expect to be paid and may try and come in once they know they will not be getting full pay which is likely to then cause problems amongst the other staff.
Rather than pay full pay as a matter of course however other ways to consider to minimise the cost to the business include:
– The employee being allowed to work from home, where possible and subject to the normal safeguards for homeworking such as IT security;
– The employee being able to use paid annual leave to cover some or all of their period of self-isolation;
– The employer agreeing to pay normal pay for a maximum period of self-isolation e.g. one week with any balance being paid at SSP only.
Where an employee has not received medical advice to self-isolate but chooses to do so, the position is more straightforward. They will not be entitled to normal pay or SSP.
Absence and absence triggers
For absence resulting from an employee following medical advice to self-isolate, it is very likely that it would be considered unfair to dismiss.
If an employee decides to self-isolate even though the guidance does not require them to do so, it may be possible to discipline them for unauthorised absence but it will be important to take into account their individual reasons and circumstances before deciding on any action, e.g. if they have underlying medical conditions and are aware colleagues have recently returned from travel abroad.
There is then also the possibility of an employee attending for work despite medical advice to self-isolate. Whilst this is only likely if the employer decides to pay SSP only for their absence, as an employer you will owe a duty of care to your other staff and if the employee refuses to go home, suspension followed by disciplinary action could be justified.
Reduction in work due to effect of coronavirus on trade
If your business is affected such that there is insufficient work for your employees to do, then you may need to lay off your employees (send them home for a full week/s) or put them on short-time (reduce their working week).
Whether or not the employees will be entitled to be paid as normal for this time, will depend upon whether their employment contracts allow for this and if not, whether they agree it. Even if their contract allows for this, or they agree it, they will still be entitled to a Statutory Guarantee payment for the first 5 days of lay off/short time in any period of 13 weeks (currently £29 per day or their normal pay if less).
Disclaimer: The information in this article is provided for general information purposes only and is not legal advice. Specific legal advice should be taken on your particular circumstances.
ACAS have also published their own guidance which can be found at https://www.acas.org.uk/coronavirus
Karen Coleman, Excello Law. Employment Solicitor. Last Updated 4 March 2020.