The purpose of this document is to provide information and guidance with regard to the questions raised from an employment law perspective. It looks to answer questions commonly asked and also deal with common scenarios.

Please note that as the political and legislative landscape is constantly changing with regard to Coronavirus, we anticipate that further changes will be implemented, and this document is in no way a definite and final opinion on all employment matters related to Coronavirus and is no substitute for individual tailored advice.

Further, please note, this in no way seeks to provide any health and safety guidance or advice. Specifically, if you have any queries with regard to health and safety and how it impacts on your obligation towards Coronavirus, then you will need to seek specialist advice from your health and safety consultant.

The previous advice in respect of country specific travel has now been withdrawn and replaced with the generic stay at home guidance which can be found here.

Further guidance can be found from:

(In Wales)
The Welsh Government: Coronavirus (COVID-19): business and employers

(Or in England)
Public Health England and BEIS: COVID-19: guidance for employees, employers and businesses (applicable in England)

1 – Payment of Statutory Sick Pay

Q – In what circumstances is SSP payable?
Statutory Sick Pay (SSP) will be payable to an employee who is ill (incapacity) after 3 waiting days, subject to the employee meeting criteria such as earning at least £118 per week. SSP is £94.25 per week (£95.85 from April 6th 2020).

The recent Statutory Instrument and subsequent amendments introduced a new regulation with effect from 13 March 2020 which confirm that self-isolation due to COVID-19 is considered ‘incapacity’. Therefore, an employee who is in quarantine or self-isolation will be regarded as being incapable of working for SSP purposes.

It is our interpretation that the Coronavirus Amendment No. 2 Regulations extends SSP entitlement to those individuals who are unable to go to work or carry out their role from home during the 7-day or 14-day isolation period.

Government guidance first published on 16 March 2020 “strongly advises” employees to work from home if they are vulnerable, which is classed as aged over 70, pregnant, or have a specified underlying health condition, including chronic respiratory diseases, chronic heart, kidney or liver disease, diabetes and those with a weakened immune system (see the Government guidance for a full list). It also strongly advises them to avoid social mixing in the community and limit use of public transport. It is our interpretation that the intention of the Coronavirus Amendment No. 2 Regulations is to extend SSP entitlement to those individuals who are vulnerable and unable to undertake their role from home.

Further temporary changes have now also been brought into legislation commencing 13 March 2020:

1. temporarily making statutory sick pay payable from the first day of sickness absence;

2. small employers (with fewer than 250 employees) will be reimbursed for any SSP paid to employees in respect of the first 14 days of sickness related to COVID-19; and

3. a temporary alternative to the fit note will be introduced in the coming weeks which can be used for the duration of the COVID-19 outbreak. This system will enable people who are advised to self-isolate to obtain a notification via NHS 111 (including its website) which they can use as evidence for absence from work, where necessary.

2 – Dealing with Employees and the Payment of SSP (See Vulnerable Worker Advice Below Too)

Q – Can I send an employee home from work to self-isolate? If so, what pay is the employee entitled to?
Where you have reasonable and genuine concern, you can seek to send the employee home and request that they stay away from work. An employee’s right to pay where their employer sends them home from work will depend upon the precise circumstances of that decision, and if the employee is showing any symptoms of COVID-19. This is discussed below in various scenarios.

Scenario 1: Employer suspends for reason not falling within government self-isolation advice i.e. they have no symptoms nor do they live with someone who displays symptoms
Where an employee is suspended by their employer on health and safety grounds, because of a possible risk of infection which does not fall within the government’s self-isolation advice for COVID-19, the employee will have the right to continue to receive their full pay.

Scenario 2: Employer suspends for reason falling within government self-isolation advice
Where an employer is considering suspension because an employee falls within the circumstances in which public health advice is to self-isolate then the position in terms of pay may be different. In those circumstances, an employer may direct the employee to return home and seek medical advice. If the employee falls within the category of people who have been advised in government guidance to self-isolate then they will fall within the new deemed incapacity rules for SSP. In those circumstances it is likely that the employer could treat them as being on sick leave and pay them SSP (subject to any contractual sick pay policy). However, see the vulnerable worker advice in respect of, for example pregnant employees).

However, before doing this you need to be clear as to what the grounds of a belief that the employee falls within the public health advice.

Q – Where an employee refuses to attend work due to fears about Coronavirus, what action can I take as their employer and what pay is the employee entitled to?
If the employee can work from home then this may well resolve the issue. If not, the employer would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of the employee’s refusal.

If an employee refuses to attend work for no medical reason and cannot work from home then they will not be entitled to SSP nor wages and could be disciplined. However in these uncertain times, employers will be expected to adopt a sensitive and supportive approach.

Q – Where an employee self-isolates following either a direction by a medical professional or government guidance, what pay are they entitled to?
It is assumed for the purposes of this analysis that the employee is not exhibiting symptoms and has not been diagnosed with the disease in question, and that they cannot work from home during their self-isolation.

Where an individual self-isolates in response to either direction by a medical professional or government guidance they will be deemed incapable under the new deemed incapacity rules for SSP and will therefore be entitled to SSP (or any contractual sick pay which may apply in this scenario).

Q – In what circumstances could holiday be used by workers to cover periods of absence?
The normal rules on taking annual leave under the Working Time Regulations 1998 will continue to apply. Workers may wish to take annual leave as an alternative to scenarios where they would otherwise be on SSP or nil pay.

In addition the employer can compel the employee to take holidays, by giving them twice the length of notice of the holiday. So for example, if the employer requires the worker to take two weeks’ leave, it must give at least four weeks’ notice to the worker. This rule however is subject to change, should a contract of employment or holiday policy state otherwise.

Q – What pay is an employee entitled to where they have mild respiratory symptoms but no diagnosis of COVID-19?
An employee in these circumstances may be treated as being on sick leave and be paid SSP (or contractual sick pay if applicable). Current Government guidance is to self-isolate for 14 days where an employee has a persistent new cough or raised temperature.

Q – Where an employee is ordered to self-isolate or quarantined under the Health Protection (Coronavirus) Regulations 2020, what pay are they entitled to?
It should be noted that the law on compulsory detention or isolation during a pandemic differs between the constituent parts of the United Kingdom. However, from a Welsh/ English stance it is likely that an employee who is forced to abstain from work because of compulsory detention or other restrictions made under an enactment such as the Coronavirus Regulations would be entitled to SSP.

Q – Where an employee refuses to attend work because they have a disability which they believe puts them at high risk of serious illness if they catch COVID-19, can an employer dismiss them, or if not, what pay are they entitled to?
People who suffer from certain health conditions are at higher risk of serious illness or death if they contract COVID-19. A requirement imposed by an employer to continue travelling to and attending work, or to not pay or to dismiss them due to their absence in this scenario, could amount to discrimination. In addition, new Government advice has been issued with regards to vulnerable workers and they are likely to qualify for SSP if they cannot homework. See the Vulnerable Worker Section below.

If you have a situation such as this, please contact your employment law advisor for specific advice.

Q – An employee has been off with COVID-19 symptoms, it is now the 8th day but I have not received any GP Sick Note?
Under normal rules, an employee can self-certify for the first 7 days of sickness. After 7 days, it is for the employer to determine what evidence they require, from the employee, this is typically a GP Certificate (aka fit note (Med 3 form) issued by a GP or other doctor).

Public Health Wales guidance states that employers use their discretion around the need for medical evidence for a period of absence where an employee is advised to self-isolate due to suspected COVID-19, in accordance with the public health advice being issued by the UK Government.

Employees can now be directed to NHS 111 online to obtain a fit note evidencing their sickness or advice to self-isolate.

Q – An employee has called in to say that their relative is ill with a Coronavirus symptom, and they need to care for them. Is the employee allowed time off and what are they paid?
Here the employee would be entitled to take time off. This is considered Dependent’s Leave. Dependent’s Leave is unpaid leave, so no normal pay (or SSP) would be payable unless specified in their contract.

However, if the relative lives with them, then they would need to self-isolate themselves and would qualify for SSP.

3. Advice Re: Vulnerable Employees

Q- Who are consider as ‘vulnerable’?
ACAS has identified vulnerable persons as being, but not limited to, those who:

• have a long-term health condition, for example asthma, diabetes or heart disease, or a weakened immune system as the result of medicines such as steroid tablets or chemotherapy;

• are pregnant;

• are aged 70 or over; or

• care for someone with a health condition that might put them at a greater risk.

Q – Have any details been given on which long-term health condition?
Public Health England have identified those individuals who have:

• chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis;

• chronic heart disease, such as heart failure;

• chronic kidney disease;

• chronic liver disease, such as hepatitis;

• chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), a learning disability or cerebral palsy;

• diabetes;

• problems with your spleen – for example, sickle cell disease or if you have had your spleen removed;

• a weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets or chemotherapy; or

• being seriously overweight (a body mass index (BMI) of 40 or above)

• anyone instructed to get a flu jab as an adult each year on medical grounds.

Relevant employees have been contacted and advised to completely self-isolate for 12 weeks.

Q – I have a pregnant employee, what do I need to do?
Based on current Medical evidence, it is currently unclear whether Coronavirus poses a greater risk for pregnant individuals (or their unborn child) as compared to the general population. However, due to the lack of evidence, the view has been taken to deal with the matter as precautionary and assume that pregnant employees may be particularly vulnerable.

Normal practice is that once an employee notifies their employer that they are pregnant, a risk assessment of their workplace should be undertaken to not only identify risk to the employee, but also their unborn child. In light of Coronavirus, this risk assessment must be continually reviewed, especially if the circumstances change.

At present, there is no legislation or guidance to compel employers to force pregnant employees to stay away from work. Further, an employer should be careful not to make assumptions that pregnant employees are not able to attend work, as simply requiring all pregnant employees to work from home is likely to be pregnancy discrimination.

As a starting point, you should discuss matters with your pregnant employee. Pregnant employees should be afforded the option to work from home (if possible), as this will limit and reduce any potential exposure to Coronavirus (COVID-19). For clarity, employers are not legally obliged to allow pregnant employees to work from home but need to act reasonably.

If home working is not possible due to the nature of their role or workload, then employers should be sympathetic towards pregnant employees who are concerned about attending work due to risk of infection and discuss what can be done to alleviate their concerns.

As a last resort, pregnant employees could be suspended on medical grounds (on full pay) if there are concerns. If the period of suspension continues into the 4th week before the expected week of childbirth, or the employee is ill after the start of the fourth week, this will trigger the commencement of maternity leave.

See below for vulnerable worker SSP entitlements.

Finally, and as a preventative measure, it is advisable to ensure that Public Health Wales good practice guidance is followed by other employees, by providing the relevant information and products (hand wash/sanitizer) about good hygiene and how to avoid spreading infection (such as social distancing). Public information posters can be obtained here.

Q – I have an employee which is over 70 years old and/or has a long-term health condition, what do I need to do?
Government guidance states that Coronavirus can cause more severe symptoms in older people and/or those with long-term conditions like diabetes, cancer and chronic lung disease. Due to the additional risk, employers have a duty to protect the health and safety of their employees, which includes taking additional care with employees who are known to be vulnerable.

It is advisable that you meet with any employees who may fall into the ‘vulnerable’ category to discuss the potential risk (an assessment could be conducted) and discuss how any potential risk to Coronavirus can be managed. Subject to their particular health condition, guidance concerning Coronavirus may be obtained from specialist websites such as Asthma UK or Kidney Care UK. Further, in some circumstances it may be appropriate to obtain medical advice as well.

It is important to discuss matters with the individual, rather than make any assumptions as this potentially could lead to a claim of age or disability discrimination.

At present, there is no specific advice for employers as to how employees classed as vulnerable should be treated. However, our advice is that you should seek to accommodate the wishes of vulnerable people who are concerned about attending work due to the risk of Coronavirus. These wishes may include introducing arrangements such as homeworking.

Also, if you do have vulnerable employees, it is advisable to ensure that Public Health Wales good practice guidance is followed by other employees, by providing the information and products (hand wash/ sanitizer) about good hygiene and how to avoid spreading infection (such as social distancing). Public information posters can be obtained here.

Relevant vulnerable employees have been contacted via public health, to advise them to completely self-isolate for 12 weeks.

See below for vulnerable worker SSP entitlements.

Q – We have an employee who is refusing to attend work, because they live with a vulnerable person and fear getting infected? What should we do and do we have to pay them?
Current government guidance is that employees should work from home where possible. As their concern is linked to a vulnerable person, it may be reasonable for an employer to allow this while refusing similar requests from other employees who do not have a direct link with a vulnerable person.

However if homeworking is not possible, and the employee refuses to come to work due to a genuine concern that they have, as an employer, you are expected to try and resolve these concerns. An option could be explored such as altering working hours so it is not necessary to travel on public transport during rush hour.

If the employee’s concern cannot be remedied, and they do not wish to attend work, then there is the option for the employee to take time off as holiday (where they would be paid) or for a period of unpaid leave to be taken instead.

Q – If a vulnerable person cannot work from home and chooses to follow the Government Advice and self-isolate (even if they have no symptoms) are they entitled to SSP?
Government guidance first published on 16 March 2020 “strongly advises” employees to work from home if they are vulnerable, which is classed as aged over 70, pregnant, or have a specified underlying health condition, including chronic respiratory diseases, chronic heart, kidney or liver disease, diabetes and those with a weakened immune system (see the Government guidance for a full list). It also strongly advises them to avoid social mixing in the community and limit use of public transport. It is our interpretation that the intention of the Coronavirus Amendment No. 2 Regulations is to extend SSP entitlement to those individuals who are vulnerable and unable to undertake their role from home.

Relevant vulnerable individuals have been contacted by public health and advised to completely self-isolate for 12 weeks.

4 – Homeworking

Q – What is the exact guidance from the Government regarding Homeworking?
On Monday 16 March 2020, the Government recommended that people should work from home where they can. This is not a decree to force employees to work from home, just a recommendation that if possible, then employees should work from home.

The further announcement on Monday 23 March 2020, reinforced this. The Prime Minister advised that ‘Travelling to and from work [is permitted], but only where it is absolutely necessary and cannot be done from home’.

Following this, there was contradictory reference to necessary work i.e. key workers.

Clarification has now been given that all employees may travel to work as long as they fully observe the 2-metre distancing rule.

Q – Are we entitled to require an employee to work from home?
If there is already established advice to work from home where appropriate or where instructed to do so (or in the case of a business continuity issue such as a pandemic), then there is unlikely to be an issue in applying that obligation in an effort to contain the spread of COVID-19.

If not, imposing home working would arguably constitute a variation of the contract requiring employee consent. However, where an employee is faced with either being on SSP or nil pay as an alternative, they may well be willing to consent to working from home as a way of preserving pay.

Where home working is being newly introduced, or expanded, the employer should ensure that the health and safety implications have been considered and that the necessary infrastructure is in place. Given current circumstances, this may prove difficult. From a practical perspective, employers should ensure that employees are asked to confirm that they have a safe working environment at home.

Q – We have employees who cannot work from home. What can we do?
As stated above, the recommendation is that employees should work from home if possible. Certain job roles cannot be relocated to home working, such as production lines workers.

Consideration can be given to alternative work, if available, if this then allows the employee to work from home. However, if not possible, then the employee can remain at work.

If the employee does not wish to remain at work, alternative arrangements can be considered such as using holiday, or taking unpaid leave or furloughing the employee under the Coronavirus Job Retention Scheme.

Q – Can we refuse to allow an employee to work from home if they will also be looking after children who have been sent home from school or nursery?
In normal circumstances, it would not be appropriate for an employee to work from home while also providing childcare. If all schools and nurseries close, the majority of parents in the workplace will face this issue and putting a blanket ban on working from home while also looking after children may preclude a large proportion of the workforce from performing any duties. Therefore, as the COVID-19 outbreak escalates, employers may need to take a pragmatic approach.

Employees with younger children who require constant attention may not be able to work at all while responsible for looking after those children. However, they may be able to split the childcare with the other parent, so that both parents are able to, at least, continue working part-time.

Employees in these circumstances may assert their right to time off to care for a dependant, referred to as Dependent’s Leave. Time off in these circumstances is unpaid, unless there is a contractual right to pay. Given that school closures could last a relatively long time, it is likely that many employees who consider that they can undertake some work while providing childcare would prefer to do so (rather than assert their statutory right to time off) if the employer is willing to allow them to work flexibly.

See below for further advice in respect of school closures.

5 – Economic Impact of COVID-19 and Reduction in Business

Q – Due to the economic impact of COVID-19 on my business, I need to make cost savings however I do not know what my options are?
There are predominantly three options whereby employees can make cost savings with regard to employees. The three options are discussed below.

The options are:

Option One
With regard to employees who have less than two years’ service you can look to terminate their employment by serving them with one week’s notice or more if their contract dictates.

The only potential risk here is that if any employees try and argue that their dismissal is discriminatory as it is associated with a protected characteristic that they have (race, sex, colour, disability, sexual orientation, religion, pregnancy, etc) or linked to assertion of a statutory right or whistleblowing.

Option Two
The second option is that if there is a signed contract in place or a contractual employee handbook, and that contract contains a Lay off and short time working clause with reference to statutory guarantee payments, then you could look to implement this. Please note that not all contracts have this clause, and it is uncommon to find them in salaried employees’ contracts. The specific clause would typically read:

The Company reserves the right to place you on short-time working or to lay you off where it has a reduction or loss of work. In such circumstances statutory payments only will be made to you.

Here you can write to the employees to state that you are exercising your contractual right to place them on either a lay off (no work at all) or short time working (a reduction in their contractual hours). For the first five non-working days, the employee will be entitled to a statutory payment of £29 (£30 after 6th April 2020). Once the five days are exhausted, they are not entitled to any further payment until a three month period has passed. The benefit here is that employees remain employed, rather than being dismissed.

Please be aware that if an employee is placed on short time working or laid off (and that hours are less than 50% of what they should be) then after a period of four continuous weeks or six weeks within any 13 weeks they can apply to make themselves redundant, where they would receive a redundancy payment from you. This can be rejected, but you would need to offer them there usual hours back. There are complicated notice and timescale rules around this. You are therefore strongly advised to take advice.

Option Three
The Government has introduced the Coronavirus Job Retention Scheme. Further advice on this is contained in our Coronavirus Job Retention Scheme blog. Under this scheme employers can furlough their employees and receive up to 80% of their wages (to a cap of £2,500 pcm).

Option Four
The fourth option is the more severe option. Here you would look to undertake compulsory redundancies.

To begin with, you would need to identify which areas you wish to reduce the workforce, and also by how many individuals. You’re then obliged to undertake a process whereby you consult with the employees over the proposal to reduce the number of employees/or delete their job role in its entirety.

If this option is to be explored, we would recommend that you speak to your employment law advisor for specific advice.

Government Support
The self-employed and those working in the gig economy are not eligible for SSP and so the government has made it quicker and easier to access benefits. In addition, legislation is currently being considered by Parliament to offer further support.

Additional financial support is being made available under a new temporary Coronavirus Business Interruption Loan Scheme with banks offering loans of up to £1.2m to support SMEs.

A special HMRC helpline has also been set up to assist businesses and self-employed individuals in financial difficulties with any outstanding tax liabilities. Those concerned about their ability to pay tax due to the Coronavirus can contact HMRC’s helpline on 0800 0159 559.

6. School Closures
We anticipate that the school closures set to hit the UK this week are likely to be seen to be both a help and a hinderance to businesses, depending on how they expect their workloads to be affected by Coronavirus.

For those who are struggling, employees looking to take time away from the business on an unpaid basis or wanting to reduce their hours could save vital money. However, for those businesses who are busier than ever following the outbreak, employees may be requesting time off at the most awkward time possible.

Given the guidance on vulnerable groups of people, it is unlikely to be reasonable for many people to utilise grandparents for childcare and therefore you may get more requests for time off for childcare reasons than previously.

Q. Do staff have the right to take time off to deal with childcare issues?
The simple answer is yes.

There are two options open to employees who cannot attend work due to childcare issues. One which deals with immediate emergency issues (as the school closures could be classed as in the next few days) and another which is designed for non-emergencies over a longer period of time (which the current situation may develop into).

Time off for Dependants
The most commonly used form of time off for parents with childcare issues is Time off for Dependants. This is where staff are entitled to a reasonable amount of unpaid leave to deal with emergencies only. There are no time limits for how long can be taken but it is generally accepted that it is for them to deal with the emergency only and is not usually used for an extended period of time.

Typically this is used where employees have to sort out arrangements for childcare should their child be ill or the school close down for a couple of days due to bad weather, etc.

In relation to Coronavirus, it is unlikely that this will cover an extended period of time of school closures but given a likely economic down turn, you may be happy to grant an extended period of leave to any employees who need it.

In addition, given the unprecedented position that the country finds itself in, there is the possibility that the courts will widen the definition of emergency. For certain, employers will be expected to act reasonably, given the circumstances.

Parental Leave
Parental leave is also unpaid but is designed for a longer period of time. Employees are entitled to 18 weeks’ leave for each child they have, including adopted children. They can take these 18 weeks at any stage (subject to some limits) between their child being born and reaching the age of 18.

Employees can take up to 4 weeks per year, per child, unless their employer agrees that they can take more.

Parental leave must be taken in whole weeks unless you agree that they can take individual days or unless the child is disabled.

Employees usually have to give 21 days notice for this, however this can be waived by the employer.

Q. I need my staff to continue to work – are there any other options?
Reduce and/or vary hours and/or days
You could look to agree to vary their hours of work so that they can fit in around the job of a partner or someone else who can provide childcare to their children. This could be shortening their working days so they finish earlier or start later, working less days per week, condensing their hours or perhaps a change of shift to evenings/nights.

Working from home
In line with government guidance, we recommend that all staff who are able to work from home are given the opportunity to do so.

Employers may take the view that reduced productivity from staff working at home compared with no productivity is the lesser of two evils.

Take annual leave
Those employees who have annual leave to take can do so. This would be subject to your usual rules, however. You also compel employees to take annual leave by giving twice the notice of the intended holiday length.

Is this a definite position?
At the moment, we are in unchartered territory. Also, as we have learnt over the last week or so, this situation can change quickly and we would not be surprised to see the Government introduce emergency legislation in this regard.

Future Developments
Finally, please rest assured that if and when there are further changes to legislation, or further guidance provided, we will update you.

If you would like to discuss further, please contact us by emailing enquiries@perspectivehr.co.uk or by phoning 01392 247436.

Last updated 24th March 2020