Alex Monaco at Monaco Solicitors considers the key point employers need to know about managing staff during the Covid-19 pandemic:
In March 2020 the UK went into lockdown for coronavirus (covid-19). Workers must only travel to and from work if it’s absolutely necessary. Non essential shops are closed. Construction sites are still open, and places of work are being allowed to determine for themselves whether they are essential or not.
In this pandemic, there have been unprecedented effects on employees’ rights, including the right to get paid, and the right to health and safety
Can I force an employee to attend work if they are vulnerable, or a danger to a vulnerable person?
If your employee is pregnant, old, or suffers from a disability or ill-health which you should already know about, then It’s to be hoped that you would be receptive to proposals for your employees to work remotely where possible, or to go use the government Coronavirus Job Retention Scheme to put employees on temporary ‘furlough leave’ (see below).
If your employees are living with someone in that category, but you are still forcing them to come to work, then you could be breaking the law.
Whilst the law on this is not yet entirely clear in relation to covid-19, we advise that it could be unlawful for you to insist on your employees attending work because by doing so you may be subjecting them to one or other of the following:
-breach of health & safety law
Coronavirus Job Retention Scheme aka ‘furlough leave’
If your business has been affected by covid-19, there is now the government Coronavirus Job Retention Scheme, known as the furlough leave. Under the scheme, you can let employees stay at home, knowing that the government will pay you 80% of their salary, up to a maximum of £2,500 per month until at least the end of June 2020. This can be backdated from 1st March 2020.
You need to agree with employees the way this scheme will apply to them, specifically whether they are happy to accept only 80% of their wage up to a maximum of £2,500 per day, or whether they insist on receiving the full 100% (with no upper limit). You can’t just put them on it without their agreement. You can make employees redundant if they don’t agree, however.
Can you dismiss employees for self isolating and not coming into work?
No! You might be allowed to discipline them, but you can’t legally dismiss employees. If you tried to, it would amount to automatically unfair dismissal under s.100 Employment Rights Act 1996.
There is a case about this kind of dismissal between Harvest Press Ltd & McCaffrey 1999 ILRL 778. It doesn’t of course relate directly to the coronavirus, but it is a good example of automatically unfair dismissal.
Can you reduce the salary of employees?
You can reduce the salary of employees if you are justified in doing so. During these times of coronavirus, we are seeing employers telling employees to take a pay cut. Is that constructive dismissal? Can employees refuse? If other people are also being asked to take a pay cut too, then it would be easy for you to justify it.
You can simply give employees their notice and give them another contract of employment with the lower pay. Then you can tell them that if they don’t agree to work on the new contract, their employment will end when their notice period is over.
Self employed affected by coronavirus
On 26 March 2020 the Chancellor announced 80% pay for self employed out of work due to coronavirus / covid-19. The main points of this scheme are:
- The money will be available in June 2020.
- It takes an average of your last 3 years’ income.
- It is only for people on less than £50,000 p.a..
- Recipients can work at the same time as receiving this.
Are employees entitled to pay when self isolating for coronavirus?
Employees are legally entitled to Statutory Sick Pay (SSP) if they have symptoms, or been advised to self isolate by a doctor or other medical authority. They can get an isolation note online on the NHS 111 website
If employees want to self-isolate because of Coronavirus, but they are not sick themselves, then the current legislation does not entitle them to SSP. We hope this will change soon.
If an employee is a vulnerable person, for example old or with underlying health conditions, then again, the current legislation does not entitle them to SSP. Still, we would advise them to get an isolation note online on the NHS 111 website mentioned above. This would then entitle them to SSP.
If your employee is pregnant, then you must do a risk assessment. If it is unsafe for them to attend work, you have to suspend them on full pay. If that is within 6 weeks of their due date, then they are entitled to start their maternity leave at that point, as per the legislation here.
If, however, employees are able to work remotely, and you agree that they may do so, then in those circumstances, employees will be entitled to their usual pay.
You should seek to discuss any problems with your employees and see if you can agree on the best way forward.
This latest legislation is contained in The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020.
Are employees entitled to pay if you tell them to stay off work?
If you have a good reason to ask employees not to attend work (eg they have recently returned from a country badly affected by coronavirus, or had contact with someone with the virus), then you can ask them to stay away. Employees will be entitled to their contractual pay.
If you decide to reduce the hours of work of your employees or to close your place of work, then employees are entitled to pay as normal, without any reduction. Of course you can instead put them on the government’s furlough leave scheme (see above) whereby the government pay 80% of their salary whilst they are at home.
(See S151 Social Security, Contributions and Benefits Act 1992 and S147-154 Employment Rights Act 1996 for relevant legislation)
What are employee rights if they take time off to care for dependents?
On 4th April, the government announced that it would extend the Coronavirus Job Retention Scheme (mentioned above) to people with childcare responsibilities caused by covid-19 restrictions. This is great news for parents, but it must be agreed with you as the employer – furlough is not an automatic right.
So, what are their automatic rights? Well they are set out in the pre existing legislation, Section 57A-57B Employment Rights Act 1996 . According to the legislation, in an ’emergency’, employees have a right to ‘reasonable’ time off work to care for dependents. Their dependents may themselves be unwell, or their usual carers/school/other provider can’t operate because of the covid virus restraints.
The time off is unpaid, unless their employment contract or insurance policy provides for payment in such circumstances. What is a ‘reasonable’ amount of time off will depend on their particular situation. You are required to consider their case without reference to any inconvenience or disruption to the business.
Undoubtedly the coronavirus crisis does count as an emergency, and what is ‘reasonable’ is an ongoing period of time for as long as the schools and nurseries are shut, at least. But the first port of call for employees should be asking for full pay or at least furlough leave, whereby the government will pay you 80% of their normal pay up to a maximum of £2,500 per month.
If employees get coronavirus, will they get sick leave and pay entitlements?
If employees have been diagnosed as having contracted Coronavirus or are suspected by medical authorities as having it, they will be entitled to the usual sick leave and entitlements to pay, as with any other sickness and sickness absence.
If employees are made redundant due to covid 19 do you still have to consult them?
Normally, where making over 20 employees redundant, you have to consult for a period of 90 days before making redundancies. But with coronavirus, there is probably a defence open to you due to ‘special circumstances’, which could compress this period, so you wouldn’t have to consult for the full 90 days. You would however probably need to consult for at least say 14 days. If you don’t do that it’s procedurally unfair dismissal.
If less than 20 people are being made redundant, then you have a duty to consult employees. This duty is not defined by statute, but is generally said to include more than one meeting, and a chance for employees to make some reasonable input into the decision.
If employees have been laid off because of coronavirus but want to leave their job can they choose redundancy?
If employees are laid off for 4 weeks in a row, or for 6 weeks in any 13 week period, they can write to you and ask you to give them a statutory redundancy payment plus their notice pay. If you don’t reply, they can resign but they have to give notice, as per their notice period (which is the longer period of either their contract or statutory notice period). Then they have a claim for their statutory redundancy pay.