In this article James Leo, Partner and Head of Employment at Wilkes looks at the recent developments around COVID-19 and what it means for the world of Employment Law.
As the UK moved to the ‘delay’ phase of their coronavirus action plan, employers must take action to protect their workforces whether UK-based or working cross-border.
The outbreak of coronavirus, known officially as COVID-19, raises key points for us to consider within employment law, immigration, Health & Safety and data protection law for UK employers.
Social distancing and vulnerable people
Current government advice is for everyone to stop unnecessary contact with other people – ‘social distancing’. This includes:
- working from home where possible
- avoiding busy commuting times on public transport
- avoiding gatherings of people, whether in public, at work or at home
Employers should support their workforce to take these steps. This might include:
- agreeing more flexible ways of working, for example changing start and finish times to avoid busier commuting periods
- allowing staff to work from home wherever possible
- cancelling face-to-face events and meetings and rearranging to remote calling where possible, for example using video or conference calling technology
There has also been guidance issued by the government that strongly recommends people with a higher risk of catching coronavirus practice strong social distancing measures.
Employers must especially be aware and take extra steps for anyone in their workforce who falls within a vulnerable group. They include, but are not limited to, those who:
- have a long-term health condition, for example asthma, diabetes or heart disease, or a weakened immune system resulting from medicines such as steroid tablets or chemotherapy
- are pregnant
- are aged 70 or over
- care for someone with a health condition that might put them at a greater risk
employers can access the latest government information and advice online.
On Monday 23 March 2020, all schools within the UK closed until further notice. This has caused a further strain on employers and employees due to a number of staff subsequently facing childcare arrangement issues. School will only be available to people who are ‘key workers’. A list of ‘key workers’ for whose children schools will remain open, is also now available here.
Employers may reasonably expect their employees to make use of these facilities – where the employee’s partner is a key worker for example – without going into invasive investigation that might breach anyone’s data protection rights.
Self-Isolation and Sick Pay
Employees in self-isolation should follow their workplace’s usual sickness reporting process.
Employees can ‘self-certify’ for the first 7 days off work. This means following their workplace process but not having to get a note from a doctor or NHS 111.
On 20 March 2020, the government introduced a new ‘online isolation note’ service which allow employees to get an online self- isolation note to provide to employers with certification of coronavirus absences. Those self-isolating due to coronavirus for more than 7 days can get an online self-isolation note from the:
Individuals will be prompted to answer a few questions, after which an isolation note will be emailed to them. The service can be also used to produce an isolation note on behalf of someone else, while those without an email address can have the note sent to a trusted family member or friend, or directly to the employer.
It is a good idea to check your workplace’s policy on absence from work. Employers might need to be flexible if asking for self-isolation notes due to the severity of the virus causing hospitalisation in some cases.
Must “vulnerable” employees who are required to self-isolate be paid? Can they be placed on sick leave, or required to use their holiday entitlement?
Employers are most likely unable to specify that employees take holiday for any long period of self-isolation in the absence of a contractual right to do so. These employees may not be “sick”, and may not be covered by sick leave provisions and employers are advised to read into their contracts and policies and consider their position.
Employees who according to government guidance should self-isolate to remain away from their workplace, are more likely to be considered as either working from home or on a period of leave. If the employee should work from home, the employer would be expected to pay the employee as normal.
Employers struggling to cover staff costs due to COVID-19, may be able to access support to continue paying part of employee wages, to avoid redundancies. This has been named as the Coronavirus Job Retention Scheme.
Employers who intend to access the Coronavirus Job Retention Scheme, should discuss with employees becoming classified as a furloughed worker. This would mean that they are kept on their employer’s payroll rather than being laid off.
To qualify for this scheme, employees should not undertake work for the employer while they are furloughed. This will allow the employer to claim a grant of up to 80% of the employees’ wages for all employment costs, up to a cap of £2,500 per month.
At the employer’s discretion, it is possible to fund the differences between this payment and the employee’s salary.
James Leo explains, “Specific legal advice should be sought where necessary, as the situation is changing daily. This is an entirely new situation to everyone and employers are having to think about what steps they can take to facilitate home working including encouraging employees to ensure that they have the correct set-up at home to be able to work there if required to do so along with what options are available to staff and ensuring that their businesses are protected.”
For any further guidance on this issue or any other employment related matter, please contact James Leo on 0121 710 5970 or any other member of the Employment Team at Wilkes. You can also email us on [email protected] and a member of the team will be in touch.