With an increasing number of people self-isolating as a result of COVID-19, and governmental guidance being released daily, many employers are looking to balance the health and wellbeing of their employees with their legal duties (at the same time as keeping the business going).
In these uncharted territories, here are some of the questions looking for answers.
How to Work From Home (WFH)?
Businesses who have previously promoted agile working are better placed to meet this challenge. But what about others, where working from home is less recognised and the government is advising working from home where possible?
Employees may be worried about contracting COVID-19 and would rather work from home.
As a starting point, it is important that you listen to the concerns that your employees have and consider home working.
Pay should be unaffected by home working.
Employees can be expected to follow reasonable instructions about where they work. There may be mobility clauses in employment contracts dealing with this. But what is reasonable is shifting as the nation listens to the government’s updates.
Employers should be careful to ensure that any refusal to allow working from home is based on a sound business rationale.
It is also worth being alert as to whether specific groups are impacted by rules around working from home and ensuring that there is no discriminatory impact.
What if an employee does not want to work from home?
Some employees prefer working from home more than others and productivity levels will vary. The social aspect of coming to work is important for many.
It is important to communicate with employees and to give clear explanations as to why decisions around home working are being taken. When decisions are understood they are more easily accepted and respected. This is directly relevant to employee morale and loyalty.
When would my business need to close?
At the moment, the official guidance states that the workplace does not necessarily have to close if an employee has been infected with COVID-19.
What are layoffs?
It may be that you will need to close your business for a short amount of time. Some contracts of employment may include the right to lay-off employees (i.e. to not provide employees with work temporarily). This is not most contracts. Otherwise this would need to be mutually agreed with an employee.
In these changing and uncertain times, some employees may consider this if allowing the business to close prevents health risks and in the long term, may increase job security by cutting costs.
What if I’ve offered an employee a job but can no longer afford to take them on?
As well as hiring freezes, we are unfortunately seeing job offers being withdrawn. This could amount to a breach of contract where a job offer has been made and accepted by an employee.
If an unconditional offer has been accepted, then the offer is binding, even if a contract has not yet been signed. This is also the case if the conditions of a conditional offer have been met.
If a contract has been signed, it is binding.
What practical steps should I take during a redundancy consultation process?
For many businesses, particularly in the hospitality, retail and travel industries, redundancies will be inevitable.
Collective redundancy consultation will be needed when 20 or more employees are made redundant within any 90 days period at a single establishment. Getting this wrong could be a costly mistake for employers who could face a group action from employees claiming up to 90 days gross pay each.
If you decide that redundancies are unavoidable, you must identify who is a risk and organise selection pools and objective selection criteria. Being open minded and looking for ways to avoid redundancy including identifying alternative roles may be impossible in these difficult times but consultation is important to manage the risk of unfair dismissal claims.
What pay is a sick employee entitled to?
As of 12 March 2020, an individual is incapable of work where they:
- Have coronavirus.
- Have coronavirus symptoms.
- Are isolating themselves from other people based on doctor or NHS 111 guidance.
An employee will be entitled to either Statutory Sick Pay or contractual sick pay if offered as part of the employment contract.
Employees are entitled to SSP (£94.25 per week for up to 28 weeks) if they have informed their employer that they are unable to attend work and they earn at least £118 per week pre-tax. They must also have 3 months of continuous employment.
Before now employees must have been sick for at least 4 days in a row to qualify for SSP. In these changing times, the government has announced that they will implement emergency legislation making SSP available from the first day of sickness absence.
No date has been set for this yet.
Can my business afford Statutory Sick Pay?
As a way of helping small employers (fewer than 250 employees) handle the strain of mass SSP, the government has announced that they will reimburse the first 14 days of SSP related to COVID-19 for each affected employee.
Again, no date has been set for this yet.
Relaxation of Fit Notes:
For an employee to qualify for SSP or contractual sick pay, they usually must provide a fit note.
Employers are being encouraged to be flexible and accept that an employee may not be able to provide a sick note if they have been told to self-isolate by their doctor or NHS 111.
The government has announced that a temporary alternative will be available in the following weeks which will allow people who are advised to self-isolate to obtain a notification via NHS 111.
What if the employee is not sick, but they need to stay home to take care of someone who is?
Employees are entitled to take time off to take care of a dependant in an unexpected event.
Dependants include children, parents, spouses/civil partners, a person who lives in the household (but is not a tenant, lodger, or employee), a person reliant on them to make care arrangements or a person who would rely on them in the event of an accident (for example an elderly neighbour).
There is no right to a set amount of time off and pay depends on the employer’s policy, usually unpaid unless stated otherwise.
There are no right or wrong answers to some of the questions as we face these challenging times, but it is well known that companies who talk and listen to their workforce in times of change are the businesses who best weather storms.
For advice on employment matters, please contact Rhian Radia an expert from our Employment Team on 020 7631 4141 or email rradia@bishopandsewell.co.uk.
