Coronavirus (COVID-19) and the implications for employment law

With the UK in lockdown, there’s no denying the impact this will have on businesses in the coming weeks and months. From sick pay to homeworking, for employees and employers, knowing your rights and obligations during this time is crucial.

Here, we set out summary guidance for employers and employees to provide clarity and address the current legal position on some of the most significant employment law issues at this time. For urgent advice on employment issues during the pandemic, contact us by completing our online enquiry form.

Sick pay

Are employees entitled to sick pay if they are self-isolating?

Under the current government guidelines, employees and workers who follow the advice to stay at home and self-isolate will be entitled to Statutory Sick Pay (SSP) if they cannot work, even if they themselves are not sick. They should be self-isolating if:

• They have coronavirus
• Someone in their household has coronavirus
• They are displaying symptoms of coronavirus, such as a persistent cough or high fever
• They have been advised by NHS 111 or a medical professional to self-isolate

For those living alone, they must self-isolate for seven days.

If someone is self-isolating because a member of their household has coronavirus or has symptoms of the virus, the rest of the household must self-isolate for 14 days. The person who is first to display symptoms must self-isolate for seven days.

How much is SSP?

SSP is paid at a rate of £94.25 per week, and it is paid by the employer for up to 28 weeks. After recent changes to SSP guidelines, it is now paid from the first day off work, rather than the fourth.

Does an absence from work due to coronavirus need to be certified?

From 20 March, sick notes will no longer need to be obtained by visiting a doctor. Instead, workers who have COVID-19, or are self-isolating, will be required to get an 'isolation note'. This can be done by visiting NHS 111 online and completing the online form. This applies to all those who live in England, Scotland, Wales and Northern Ireland.

Employees should follow their employer's standard procedure for reporting sickness. For the first seven days, an employee can self-certify, which means they will not have to get a note from a doctor or NHS 111.

For employers – employers should use their discretion and be flexible when requesting isolation notes. If an employee is very ill, it is more than likely that we will not be able to obtain an isolation note straight away.

Can employers claim back any sick pay paid to their employees?

It may be possible for small employers (those with fewer than 250 employees as of 28 February 2020) to claim back SSP for sickness due to COVID-19 for the first 14 days This time scale is in line with the recommended isolation period and covers periods of sickness starting on or after the 13 March 2020.

Employers do not need a doctor’s note from their employee to make a claim.

Find out more

Employees can find out more about their rights to sick pay at this time, in our article here.

Working from home

To limit the spread of infection, where possible, businesses and employers should be encouraging their employees to work from home.

Homeworking should be facilitated where possible

Even when employees are working from home, employers still owe a duty of care. This includes responsibility for any equipment, so it is important that employees are provided with the correct tools to work safely and effectively from home. Employers should also ensure they are supporting their employees and workers adjustment to homeworking. This could be done by:

• Maintaining regular contact with employees
• Making reasonable adjustments for employees with disabilities
• Ensuring employees are comfortable with the work they are being asked to do at home

Ensuring employees safety at work

Clearly, it will not always be practical for employees and workers to work from home. In such circumstances, businesses and employers should be taking all reasonable precautions to ensure safety in the workplace. This includes:

• Providing accessible handwashing facilities to all staff members, including providing hand sanitiser
• Senior staff being able to spot the signs of coronavirus and taking proper action

Using holidays and changes to annual leave

Generally, employees and workers are encouraged to take their full annual leave allocation, which is 5.6 weeks per leave year. However, given the current coronavirus pandemic, this may not be possible at this time. Therefore, employees might be coming to the end of their leave year with holidays left to use.

Relaxed rules on carrying over annual leave

The UK government announced changes that mean workers who have not taken all of their statutory annual leave entitlement due to COVID-19 will now be able to carry it over into the next two leave years. This will allow workers and employers to carry over up to four weeks of unused leave.

These changes will amend the Working Time Regulations and will apply to almost all workers, including those on zero-hour contracts and agency workers.

Can an employee cancel time off that has been previously booked?

Should they require, employers have the right to tell employees and workers when to take holidays. Therefore, if an employee has previously booked time off that they now want to cancel, their employer can refuse this request and tell them to take the time off.

This is the same if the workplace must temporarily close; employers can require their employees to use their holiday entitlement during this time.

Time off for dependants

Except for the teaching of children of some key workers, all schools, colleges and nurseries in England, Scotland, Wales and Northern Ireland are now closed. This undoubtedly presents further difficulties for parents and employers in terms of working and childcare arrangements.

Do employees have a right to take time off to look after children?

There is no automatic right for an employee to take paid time off to look after children. If an employee needs to take time off to make childcare arrangements or look after children, they will have two possible options:

• Time off for dependants – there is no definitive length of time that can be taken off, it is defined as a ‘reasonable amount’. However, employers should be flexible, where possible.
• Taking holidays – it might be possible for an employee to use some of their annual leave if this is agreed by their employer.

What can employers do to help their staff with childcare responsibilities?

The most important thing employers can do is communicate regularly with their staff to see if they can work together to find a solution that suits both parties. There may be an option of flexible working; whether this is working from home (which should be encouraged at this stage) or changing their hours to suit childcare responsibilities. For example, if an employee typically works during the day, their working day could be altered to include more evening working, if this is possible.

Coronavirus Job Retention Scheme

The Coronavirus Job Retention Scheme was recently introduced by the government to reduce the number of job losses due to coronavirus. The scheme means that if an employer and employee both agree, then the employee could be kept on the payroll if there is no work or the business is unable to operate due to coronavirus. This is known as being ‘on furlough’ – a term which seems to be a part of many people’s vocabulary at the moment.

How much will an employee receive on the scheme?

Employers will receive a grant to pay their staff 80 per cent of their usual monthly earnings, up to the value of £2,500. It is at the discretion of the individual employer whether they will make up the remaining 20 per cent, but employers are under no obligation.

How long can an employee be ‘on furlough’?

As with the ever-changing landscape of employment law at the moment, this is subject to change. However, under current guidance, an employer can claim under the scheme for a minimum of three weeks and up to four months. This could be extended further.

Find out more

For employers – find out what the Coronavirus Job Retention Scheme means for employers in our article here.

Contact our Employment Lawyers in Glasgow & Paisley today

Whether you are an employee concerned about your rights at work during this time, an employer trying to keep up with the constant changes in the law, or just have a general employment law query, we are on hand to assist. Contact us today on 0141 887 5181 for our Paisley branch or 0141 551 8185 for our Glasgow branch or complete our online enquiry form and we will be back in touch.

This guide does not constitute legal advice and is provided for general information purposes only. If you require specific legal advice you should contact one of our lawyers who can advise you based on your own circumstances.

Please note this information is accurate as of 29 April 2020 and is subject to change as official guidance is adapted to reflect the implications of the virus.