Coronavirus - Employment Issues

Author: Douglas-Jones Mercer

Date: 19 March 2020

The most recent advice from the government is that employees should be working from home wherever possible. Of course for some businesses this will be a simple move but for others working from home is impossible.

If employees have to take a sickness absence (including where they have to self-isolate or look after someone who is self-isolating) they will be entitled to statutory sick pay of £94.25 per week (which is now payable from the first day of absence). Your business may have its own sickness absence policy which unless discretionary you will still need to follow.

SMEs (businesses with fewer than 250 employees) can reclaim the cost of 14 days sick pay per employee, but there will likely be long delays for reimbursement. You will still need to pay your employees their sick pay entitlement now.

If an employee tests positive for Covid-19, you will be informed by the local health protection team who will provide you with advice as to who may be at risk. Employers have a legal duty to protect the health and safety of employees, so it is important to be transparent and pro-active.

Businesses with any number of employees should start taking preventative measures in line with government guidance now (and many are introducing policies to limit the exposure of employees to the virus and to the public where appropriate). Many businesses have already introduced guidance policies for staff on what happens for example if they have to self-isolate. Such measures will include:

• introducing and encouraging home working if possible, especially for any employees who come within the government’s ‘vulnerable’ definition (this should be backed up by a set Home Working policy – in order that staff know exactly what is expected of them should they be asked to work from home);

• limiting the number of people in any office or workspace;

• reorganising workspaces to reduce proximity between employees;

• providing access to hand sanitiser, tissues and other sanitation equipment as required.

Employers can instruct employees not to attend the workplace and should do so if employees are showing symptoms (a new persistent cough and/or a fever) or have been to any ‘red zones’ such as China or Italy.

Some businesses will need to take action to reduce the number of employees present in the workplace and in some circumstances to prevent business closure, actions which might need to be taken are:

- Giving notice to workers to take holiday. Employers are entitled to give notice to workers to take statutory annual leave, providing employment contracts do not specify otherwise.

- Asking for volunteers for unpaid leave or redundancy. Many businesses have taken this approach, notably Virgin Atlantic have announced this week that they are asking some staff to take up to 8 weeks unpaid leave. This approach can be softened in the way Virgin have, by allowing the unpaid leave to be spread over several months rather than leaving workers without any pay for a time.

- Considering whether any employee’s contracts can be terminated without the risk of unfair dismissal or redundancy payment claims. Generally, 2 years continuous employment is needed before a worker is entitled to bring a claim for unfair dismissal or a redundancy payment.

- If in the longer term reduced headcount may be required (even when the business reopens) then the employer may need to consider launching a redundancy process.

This note was written by Paul Shuttleworth who has vast levels of experience advising clients on employment and HR issues, including in relation to redundancies and drafting employment contracts and policies. You can contact Paul on pas@djm.law.co.uk or 01792 656502.

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