As the Coronavirus/COVID-19 pandemic develops here in the UK, we have continued to receive queries from both individuals and employers on how various employment issues should be dealt with as a result of the Coronavirus. We have therefore set out a list of frequently asked questions.

As the pandemic is continually changing and advice issued by the government and Acas is being updated, we will endeavour to provide article updates as soon as possible.

1. If an employee displays symptoms of COVID-19 but has not been diagnosed, what pay are they entitled to?

Employees displaying symptoms of COVID-19 will be treated in the same way as those employees who have been diagnosed with the disease with respect to pay, that is they will be entitled to the usual sick leave and pay entitlements including statutory sick pay or contractual sick pay, in the event this is provided in the employment contract or within any polices.

Statutory sick pay is now available from the first day off work, not the fourth. This was implemented by the Government in a bid to help contain the virus.

2. If an employee refuses to attend work because they are scared of the risk of infection, what can the employer do and what pay is the employee entitled to?

The employer should firstly consider whether home working is an option, and if so, the employee would be entitled to receive their usual pay.

If an employee cannot work from home then the employer will need to consider current public health advice, the Governments advice and the specific reason that the employee is concerned about attending work.

If public health advice states that the employee in question could reasonably be expected to continue to attend work then the employee will not be entitled to receive their normal pay or SSP.

However, despite this, Acas guidance suggests that it is good practice for an employer to treat absence as sick leave and follow the usual sick policy or agree for the time to be taken as annual leave. Employers may therefore want to take a flexible approach to the unexpected absences that the virus may cause.

3. If an employee self-isolates following advice from a medical professional, or government guidance, what pay are they entitled to?

In this situation, if professional medical advice or Government guidance is being followed then the employee will be deemed incapable for work under the new deemed incapacity rules for SSP. They will therefore be entitled to SSP, or contractual sick pay in the event that this is provided in the employment contract or within any policies.

4. If the employer decides to temporarily close the workplace due to a lack of employees being available, a downturn in work, or Government restrictions, what pay are employees entitled to?

If the closure of the workplace is temporary, employees will be entitled to receive their full contractual pay.

If prior to the workplace closure employees were either self-isolating as a result of displaying symptoms, being diagnosed with COVID-19 or as a result of Government guidance then they will remain on sick leave until they are fit to return to work. They will then be treated in the same way as those employees who were sent home as a result of the employer deciding to close the workplace. As such, they too would be entitled to receive their normal pay.

We realise that this is an unprecedented time and so, in an effort to avoid redundancies, employers may want to consider coming to an agreement with staff over working hours and pay in the short term. On Friday 20^th March 2020, the Government announced a number of measures to assist both employers and employees during this difficult time. One of the measures included access to support under the Coronavirus Job Retention Scheme.

This new scheme allows UK employers to access financial support to continue paying part of their employee’s salary for those employees that would have otherwise been laid off as a result of the pandemic. In order to qualify for the scheme, the employee must not undertake any work for the employer while they are furloughed, but will remain on the employer’s payroll.

Any employer is eligible to apply for the scheme, including sole traders, partnerships, limited company’s, limited liability partnerships and charities.

In order to access the scheme affected employees must be designated as “furloughed workers” and must consent to this change in status and potential change in pay, unless their employment contract expressly states otherwise. The employer will therefore need to go through a change of terms exercise and obtain the express consent of each concerned employee. If you would like help with this process please contact our employment team at employment@berrysmith.com. 

Under the scheme, HMRC will reimburse 80% of furloughed workers wage costs, up to a cap of £2,500 per month. The employer will need to submit information to HMRC regarding the furloughed employees and their pay through a new online portal which will be set up soon.

An employer may decide to pay its employees the extra 20% of their salary, however this is not compulsory.

In the event that an employee refuses to provide their consent to be deemed a furloughed worker the employer will need to assess the situation and consider redundancies if necessary, provided that a fair selection and fair procedure has been applied.

5. Can an employer lay-off employees or implement short-time working?

Employees can only be laid off or placed on short-time working where the employer has the contractual right to do so (i.e. there is a specific lay-off or short-time working provision contained within an employee’s contract of employment).

Due to the current unprecedented situation which many employers will be faced with as a result of the Coronavirus, laying off employees or implementing short-time working (where there is the contractual right to do so) may not be the solution due to the fact that after a certain period of time employees have the right to claim statutory redundancy payments. Therefore, implementing these provisions may only provide a short-term fix.

Therefore, as an alternative, employers could propose coming to an agreement with their staff whereby hours and pay are reduced for the short-term in order to avoid mass job losses. Employees may be agreeable to this proposal in order to reduce the chances of them being made redundant as a result of the company being unable to continue paying their staff their full contractual pay. The new Coronavirus Job Retention Scheme announced by the Government on 20^th March 2020 may assist in this situation. Please see the answer to question 4 above.

6. If an employee needs time off to look after a child/relative who is self-isolating or a child as a result of school closures, what pay are they entitled to?

This will depend on the specific circumstances of the case.

The Government recently announced that if one member of the household is sick or has symptoms then the rest of the household should also self-isolate. Therefore, if this is the case and an employee is looking after a child/relative who is self-isolating as a result of Government guidance and they both live in the same household, then the employee will be entitled to SSP.

If an employee is taking time off work to care for a child/relative who is not self-isolating then such leave will be unpaid, unless pay is provided in the employment contract or within any policies. However, employers in this situation may wish to exercise their discretion and pay SSP.

With the closure of schools announced last week, many parents and carers will be unable to attend work. Employers should therefore consider if homeworking is appropriate and, in the event, that it is, employees should receive their normal pay. Again, we would suggest coming to an agreement with staff over proposed options / pay.

We are currently offering a new retainer service for employers with regards to the Coronavirus pandemic. Through this retainer we are offering employment related guidance and template documentation for a fixed monthly fee. If you would like to learn more about this service please contact our employment department at employment@berrysmith.com .