1. If employees self-isolate, are they entitled to be paid?
Where an employee self-isolates because they have been instructed to do so by either their doctor or NHS 111, or on the basis of government advice, they will be entitled to receive statutory sick pay (SSP) (and, if relevant, contractual sick pay – see further below), as they will have been deemed to be incapable of work.
Note that Government advice issued on 16 March provides that individuals who have a high temperature or a new, continuous cough should self-isolate, as should people who live with them, even if they have no symptoms – see the Government’s ‘stay at home’ guidance for details of how this works. People do not need to see their doctor or call NHS 111 unless their symptoms are severe, but can access advice and information via NHS 111’s online service. Regulations came into force on 13 March confirming that individuals who self-isolate on government advice will be deemed incapable of work for the purposes of SSP, including those who have no symptoms.
Government guidance to business has suggested that employers “use their discretion” when requiring written evidence of incapacity for work in these unprecedented circumstances. Comments made when the Budget was published on 11 March suggested that measures are going to be put in place to enable employees to obtain an alternative to a fit note to cover their absence from NHS 111, but no timeframe for this has yet been confirmed. Employers will, however, be reassured to know that a GP fit note will not be required as evidence for eligible employers to be able to reclaim Covid-19-related SSP from the Government .
If, however, an employee chooses to self-isolate without following an instruction from a doctor or NHS 111 or government advice requiring them to do so, they will not be entitled to any sick pay (see further guidance in question 3, below).
2. Is SSP now payable from the first day of absence?
The proposal to make SSP payable from the first day of absence for those with Covid-19, or those who are self-isolating on government advice, was announced by the Prime Minister at the beginning of March, but at the time of writing the legislation to bring this into effect had not yet been published.
Strictly speaking, therefore, an employer could currently pay SSP just from day four as that is all the law requires (paying contractual sick pay from day one if applicable under the employee’s contract, although see further below on contractual sick pay). However, the legislation to introduce SSP from day one is expected imminently and we understand from guidance issued by the Department for Work and Pensions that, when it does come into force, the legislation is intended to apply retrospectively from 13 March. Accordingly, we would now advise employers to pay SSP from an employee’s first day of Covid-19-related absence.
3. What if an employee does not have symptoms, but wishes to stay away from work because they are worried about getting Covid-19?
Employers may face a scenario where an employee shows no symptoms of Covid-19, and is not in one of the groups that has been advised to self-isolate (see above), but wishes to stay away from work because they are worried about being infected. Government advice on social distancing issued on 16 March recommends that all employees should work from home where possible. Accordingly, any employee whose role is such that they can work effectively from home should be permitted, indeed encouraged, to do so and should be paid their normal pay during this time.
Where an employee whose role is not compatible with home-working has genuine concerns, the employer should listen to the employee’s concerns and, where possible, try to accommodate them. Employers have a duty to take reasonable steps to provide a safe working environment.
Employers also have an obligation to make reasonable adjustments under the Equality Act 2010 where someone has a disability.
If the employer is not able to put in place health and safety measures that sufficiently reassure the employee and the employee remains unwilling to come in to work because they are scared of being infected (i.e. they are not required to self-isolate on medical or government advice), generally they will not be entitled to any pay (see question 1 above). In this scenario, the employee could be allowed to take a period of unpaid leave, or paid annual leave, if this is realistic taking into account the employee’s role and the operational needs of the business. In some circumstances, it may be appropriate for an employer to consider whether an employee’s refusal to come into work in these circumstances could constitute employee misconduct, but any disciplinary action should be handled carefully.
One group of employees for whom it may be necessary for the employer to take a slightly different approach is those who are at higher risk of developing severe coronavirus and/or may have compromised immunity such as those aged 70 or over, those who have an underlying condition (such as a respiratory condition, cardiovascular disease, or diabetes), or those who are pregnant. For such vulnerable employees (full list available here), current Government guidance is that they should be especially careful in following social distancing recommendations – so they may have particular concerns about attending work. Although these employees do not fall into the category of people required to self-isolate on government advice, the latest Government guidance for employers suggests that ‘those who follow advice to stay at home and who cannot work as a result will be eligible for statutory sick pay (SSP), even if they are not themselves sick’, and that employers ‘should use their discretion and respect the medical need to self-isolate in making decisions about sick pay’. In view of this guidance, it may be advisable for employers to pay SSP to employees who fall into a vulnerable category, need to remain at home in order to comply with social distancing advice and cannot work as a result. (Note, also see question 4, below, on special rules applicable to pregnant employees).
Keeping abreast of evolving Government advice on Covid-19 is important for any employer who is deciding what approach to take in relation to an employee who is not willing to come to work, as the guidance is likely to change further in the coming days or weeks.
4. What is the position for pregnant employees – should they still attend work?
As noted above, current Government guidance is that vulnerable people, including pregnant women, should be especially careful in following social distancing recommendations, and this means that such individuals may have particular concerns about attending work. In addition, in respect of pregnant employees, employers are under a specific legal obligation to:
- assess workplace risks;
- alter the employee’s working conditions or hours of work to avoid any significant risk;
- where such alteration is not reasonable, or would not remove the risk, offer suitable alternative work on terms that are not substantially less favourable; and
- where suitable alternative work is not available, or the employee reasonably refuses it, to medically suspend the employee on full pay.
With this in mind, as the Covid-19 situation is new and evolving, it would be advisable for employers to carry out a new risk assessment for all pregnant women, to identify the risks and consider what measures can be put in place to protect them.
For those who can do so, the simplest course would be to agree with the pregnant employee that she should work from home for the time being – this alteration of working conditions would remove any risks associated with Covid-19 in the workplace and would be in accordance with Government guidance on social distancing.
For employees who can’t work at home, where the risk assessment identifies that work is not safe, if there are no other alterations to working conditions or hours, or suitable alternative work that would remove the risks relating to Covid-19 in the workplace, then the employer should medically suspend the employee on full pay.
If an employer’s risk assessment concludes that work is, in fact, safe for a pregnant employee, but she refuses to attend work because of concerns about Covid-19 in the workplace, the employer should treat the employee as they do other employees who fall into the vulnerable category (see question 3, above).
5. What if an employee who has symptoms (new continuous cough, or high temperature) is refusing to self-isolate and insists they are fit for work?
As noted above, Government advice on social distancing issued on 16 March recommends that all employees should work from home where possible. Accordingly, any employee whose role is such that they can work effectively from home should be permitted, indeed encouraged, to do so provided they are well enough and should be paid their normal pay during this time.
In view of the employer’s duty to protect the health and safety of all staff, if an employee who is unable to work from home presented at work displaying symptoms that could potentially indicate they had Covid-19, the employer would be justified in sending the employee home to self-isolate.
If it is not feasible for the employee to work from home, in view of the new regulations providing for individuals who self-isolate on government advice to be deemed incapable of work (see question 1, above), we consider that the employer could treat the employee as being on sick leave. Accordingly, the employer would pay the employee SSP (or contractual sick pay, if applicable, although see further below).
6. Must employers pay contractual sick pay to employees who are self-isolating?
Many employers operate contractual sick pay schemes that provide full pay for a specified period of sickness absence. However, employers are understandably concerned about the cost of maintaining their contractual sick pay schemes in view of the sheer number of employees who are likely to have to take time off sick as a result of Covid-19, whether because they have symptoms or because they are otherwise advised to self-isolate (e.g. because someone in their household has symptoms).
It might be possible to argue that, while the SSP provisions have been extended to provide an entitlement to pay for those who are ‘deemed’ incapable of work, even if they are not actually ill, a contractual sick pay scheme is only applicable to employees who are actually unwell. However, this will depend on the precise wording of the contractual sick pay scheme and it is uncertain how such an argument would be received by a court or tribunal.
There is also a practical issue with restricting the payment of contractual sick pay to employees who are actually ill as, with many GP surgeries now closing their doors and offering only telephone appointments for urgent cases, it is not clear how employees will be able to obtain evidence of their sickness to demonstrate their eligibility for contractual sick pay.
We are seeking guidance from the Government on how employers should proceed given the unprecedented situation.
7. What if an employee ignores Covid-19-related hygiene rules?
If an employer has instructed its employees to follow certain rules to contain the virus and an employee fails to comply with those instructions, the employer will be entitled to take disciplinary action.
8. Can an employer restrict an employee’s personal travel?
Employment contracts do not generally include an express right for an employer to restrict an employee’s personal travel plans. But it may be reasonable for the employer to do this where a restriction can be justified by the employer’s duty to protect the health of safety of its workforce, or those with whom the workforce comes into contact.
Note, however, that the latest Government advice on social distancing and the latest FCO advice warn against all but essential travel, and with more countries closing their borders and airlines cancelling flights, employees may find they are unable to travel in any event. This may result in employees asking to cancel pre-booked periods of annual leave. Employers should be flexible in this regard, but should monitor the situation carefully. If lots of employees cancel their annual leave in the Spring and early Summer because of Covid-19, employers may face high levels of demand for annual leave later in the year once the situation has (hopefully!) improved. In those circumstances, employers may find that they need to refuse some holiday requests in order to meet staffing needs. However, employers will then need to be mindful of their obligation to enable all employees to take their annual leave during the relevant holiday year.
9. What if someone with Covid-19 comes to work? Do we need to close the workplace
If someone with Covid-19 comes to work, you do not necessarily need to close your workplace. You should in these circumstances contact Public Health England, (or their equivalents outside England), to discuss the situation. PHE will then assess the risk and advise on any actions or precautions to take.
10. Can we require employees to have their temperature tested before allowing them into the workplace?
In order to avoid exposing their workforce to Covid-19, employers may wish to require employees to undergo tests to check they do not have the virus before allowing them into work. It is unlikely that tests for Covid-19 itself would be available to employers, even via a private occupational health service. However, testing an employee’s temperature would offer a simple indicator of whether the employee might have the virus (and even if they do not, Government guidance is that those who have a high temperature should self-isolate – see the Government’s ‘stay at home’ guidance for details). That said, temperature testing is not fool-proof, as an employee may have taken paracetamol before coming to work, which could have lowered their temperature.
Ordinarily, an employer would only be able to require an employee to undergo any form of medical test if there is an express provision within the employee’s contract (or sickness absence policy) providing for this. However, in the unprecedented circumstances of the Covid-19 pandemic, requiring all staff to undergo temperature checks on arrival at work may be deemed reasonable to enable the employer to protect the health and safety of all employees, even if such testing is not provided for in contractual documentation. An employee’s refusal to have their temperature tested in these circumstances may warrant the employer sending them home without pay, and/or taking disciplinary action.
In addition, from a data protection perspective, the record of an employee’s temperature would arguably constitute special category data as it is data concerning health. Given this, it would be sensible for employers only to retain a record for those employees who have a high temperature and are therefore sent home to self-isolate. Employers should also take into account the data protection considerations identified in question 11, below, regarding who has access to the data, conducting a data protection impact assessment, updating data protection policy documents and providing appropriate privacy notice information.
11. What are the data protection implications if an employer needs to gather information on which of its employees are at a high risk in relation to Covid-19 for business continuity planning purposes?
Many employers will be putting together business continuity plans addressing how they will deal with the Covid-19 situation going forwards. This may include putting in place special measures to protect employees who would be particularly at risk if they were to contract the virus (e.g. those who have serious chronic medical conditions such as heart disease, asthma, diabetes, etc. and pregnant women). In order to ensure such measures are effective, employers will need to know which employees fall into these high risk categories, so may need to ask employees to declare if they do.
From a data protection perspective, employers should consider the following:
- In order to comply with the data minimisation principle, employers could simply ask employees to confirm if they fall into a high risk category, rather than asking them to confirm which specific medical condition they suffer from.
- Who needs access to this information? The data minimisation principle also means that employers should limit the disclosure of personal data to those who really need it. If an employer is simply making business continuity plans for the future, it would make sense to ask employees to inform HR if they fall into a high risk category, with HR instructed only to disclose that information to line managers in the event that the plans are subsequently implemented. By contrast, if the employer intends to implement protective measures for high risk employees immediately, it would make sense for employees to inform both their line manager and HR that they fall within a high risk group.
- Even if the employer doesn’t require the disclosure of specific medical conditions, the cautious approach would be to treat employees’ confirmation that they fall into a high risk group as special category data (as it is still, arguably, data concerning health). Special category data is subject to additional protections under data protection law.
- The employer should conduct a data protection impact assessment (DPIA) to assess the risks associated with the collection and processing of the data and identify whether there is any less invasive way to achieve its objectives. The DPIA should be recorded in writing and retained in order to demonstrate compliance with data protection law.
- The employer’s special category legal basis for processing this data would be that the processing is necessary to comply with a legal obligation in relation to employment and appropriate safeguards are in place. Here, the applicable legal obligation would be the employer’s duties to the employees concerned under health and safety law. As for appropriate safeguards, the employer should check whether it has an ‘appropriate policy document’ in place setting out its approach to processing special category data and whether this document is drafted broadly enough to encompass this type of processing or whether it requires updating.
- Similarly, the employer should check that its employee privacy notice includes sufficient information on how, why and on what legal basis the employer processes employees’ health data and should provide supplementary privacy notice information if anything is lacking. Even if the employee privacy notice does include sufficient detail, as a matter of good practice, in the communication in which it asks employees to declare if they are in a high risk group, the employer should state its legal basis for processing this data and direct employees to the privacy notice for further information.
12. What if an employee’s child’s school has closed due to Covid-19?
At the time of writing, Government have not ordered schools to close en masse, but some individual schools are deciding to close, e.g. if they have a confirmed case of Covid-19 among their staff or pupils.
Following the Government advice on social distancing issued on 16 March, employees who are able to do so may already be working from home. In the event that their child’s school closes, such employees may be able to continue with home working. However, they may need some flexibility on hours in order to work around their child’s demands on their time.
Employees who are not able to work from home may need to take time off work to look after their child in the event of a school closure. Employees have a statutory right to a reasonable amount of unpaid time off to deal with an emergency involving a dependent. “Dependent” includes a spouse, partner, child or parent, or a person who lives with the employee (but not a lodger).
The right to take emergency leave is a right to a ‘reasonable’ amount of time off. The amount of time is not fixed. It is intended to allow an employee to deal with an immediate problem and put other care arrangements in place.
So if an employee’s child’s school has closed the employee could take emergency time off to care for the child. The employee should inform their employer as soon as reasonably practicable of the reason for their absence and how long they expect to be away from work. If the employee doesn’t know when their child’s school will re-open, it would probably not be reasonable for the employee to simply stay off work until such time as the school re-opens. However, it would be reasonable for them to take one or two days off to try and arrange alternative childcare. Both you and the employee need to be flexible. It might be that arrangements can be made for the employee to work flexibly for a temporary period with staggered start and finish times or reduced hours to enable the employee to drop off and collect their child from an alternative care provider. If that sort of arrangement would also not be feasible, consider whether the employee could take paid annual leave, or unpaid parental leave.
Note that if you subject an employee to detrimental treatment for taking emergency time off, or dismiss them or subsequently select them for redundancy because they took, or sought to take, emergency leave then they will be entitled to make a claim of detrimental treatment or unfair dismissal to an employment tribunal regardless of their length of service.
If Government ultimately decides to call for all schools to close, this will inevitably have a greater impact on the workforce, as finding childcare could be problematic – for example, employees are unlikely to be able to ask grandparents to take on caring responsibilities given the more stringent social distancing advice for the over 70s. Employers will need to think carefully about whether home working is suitable if there are young children in the house; how much home-working they can accommodate; and what proportion of their workforce may need to take time out, and start planning now. For example, how they might be able to structure shift patterns for those staff who can’t work from home, in order to continue to operate in these circumstances.
13. What if an employee is looking after a child or other relative who has (or may have) the virus?
If an employee needs to look after a child or other relative who has (or may have) the virus, a short period of emergency time off may be appropriate to allow the employee to make arrangements for that person’s care. In practice, however, an employee may struggle to find someone else to care for a child/relative who has (or may have) the virus. If the employee needs to take time off over a longer-term, similar considerations will apply as in the school closure scenario at question 12, above.
In addition, Government guidance now requires those who live with someone who has (or may have) the virus to self-isolate – see the Government’s ‘stay at home’ guidance for details. If the employee is well and is able to perform their role at home, the employer should ask them to work from home and continue to pay them as normal. If the employee cannot work from home, but is required to self-isolate because they are caring for a child/relative in their household who has (or may have) had the virus, then they would be deemed incapable of work and entitled to sick pay (see question 1 above).
14. What if we need to temporarily close our business and send staff home, e.g. because of supply chain disruption, or reduced demand for products or services?
In this uncertain time, businesses may want to make a plan in case they need to close temporarily and a central part of that will be deciding how best to deal with staff.
Today’s supply chains are increasingly global in nature and many are therefore vulnerable to potential disruption due to the coronavirus, e.g. if factories are located in countries operating lockdowns and are therefore unable to fulfil orders. If UK businesses are therefore unable to obtain parts in sufficient volume, they may need to consider closing some of their production facilities or reducing production – not because of the virus itself but because they will not have the parts they need to continue production at normal levels. Similarly, some businesses may find they need to consider closing or operating on reduced hours because with people self-isolating there is less demand than usual for their products or services.
In these circumstances, employers may wish to consider temporarily laying off their employees, or putting them on short-time working. However, employers should be aware that temporarily laying employees off without pay, or cutting back their hours with a corresponding reduction in pay, is likely to be a breach of contract, unless the employment contract expressly permits it.
Contractual clauses expressly permitting lay-off or short-time working are relatively rare in practice. Where they do exist, they may well be subject to conditions, such as a requirement for prior consultation, agreement with the union on the period of lay-off/reduced hours, or other mitigation measures. Even if a contractual clause does not impose such conditions, as a matter of good practice the employer should not seek to rely on it without first consulting with affected employees.
Employers that impose a lay-off or short-time working without contractual authority to do so could potentially face claims for unlawful deductions from wages, breach of contract, or even constructive unfair dismissal. The risk of such claims can, however, be reduced if the employer consults all affected employees and seeks to agree with them the period and terms applicable to any lay-off or short-time working before implementation.
If an employee is already on sick leave when lay off/short-time working begins, whether because they are self-isolating or for another reason, then they cannot be on put on lay off or short time working at the same time.
It is also important to note that employees who are laid off or put on short-time working may be entitled to statutory guarantee payments, or to statutory redundancy pay if the lay-off/short-time working persists.
Employees will understandably be concerned about any temporary closure decision; good communications, which explain the reasons for the business closure and commit to keeping staff updated on a regular basis will therefore be key to reducing anxiety and maintaining good employee relations.
Member companies that are considering implementing a lay-off or short-time working should first seek advice from their Make UK adviser.
15. What about if public health advice is to close businesses?
Currently, official public health advice from the Government has not recommended the closure of businesses to prevent the spread of Covid-19. If this advice changes and the UK goes into a lockdown similar to those in place in other countries, employers will need to know what their obligations are regarding employees’ pay during any period of closure. We are seeking clarification from the Government on what the position will be and what, if any, Government support will be available to businesses to help them maintain staff pay if required and we will keep members informed as answers become available.
16. What legal obligations should employers keep in mind when making decisions relating to Covid-19?
In addition to express and implied obligations in employment contracts, employers should be mindful of the following duties:
- To protect the health, safety and welfare at work of the workforce and others who might be affected such as customers, suppliers and visitors (under the Health and Safety at Work Act 1974 as amended and related legislation). There is also a common law obligation to take reasonable care of the health and safety of their workforce.
- Not to discriminate against staff with protected characteristics, and to make reasonable adjustments for those with disabilities (under the Equality Act 2010).
Health and Safety.
17. If an employee contracts Coronavirus at work does the case need to be reporting under RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations)?
We are seeking clarification from Government on this
18. Does this change due to Covid-19 being deemed a “notifiable disease”?
We are seeking clarification from Government on this
Financial support for Business
19. What support for business was there for Statutory Sick Pay?
The government announced it will support small and medium sized businesses and employers to cope with the extra costs of paying Covid-19 related SSP by refunding eligible SSP costs. The eligibility criteria for the scheme are as follows:
- The refund will be limited to two weeks per employee
- Employers with fewer than 250 employees will be eligible. The size of the employer will be determined by the number of people employed as of 28 February 2020.
- Employers will be able to reclaim expenditure for any employee who has claimed SSP (according to new eligibility criteria) as a result of Covid-19
- Employers should maintain records of staff absences, but should not require employees to provide a GP fit note
- The eligible period for the scheme will commence from the day on which the regulations extending SSP to self-isolators come into force. (Note – those regulations came into force on 13 March)
While existing systems are not designed to facilitate such employer refunds for SSP, the government will work with employers over the coming months to set up a repayment mechanism for employers as soon as possible.
20. Are Business Rates being adjusted to help businesses cope with the impact of Covid-19?
The government had, prior to the budget announcement, already announced the Business Rates retail discount will be increased to 50% in 2020-21. In light of the potential impact that Covid-19 will have, further measures are being introduced by the government to mitigate business disruption:
- To support small businesses affected by COVID-19 the government is increasing the Business Rates retail discount further to 100% for 2020-21.
The 100% relief will also be expanded to the leisure and hospitality sectors.
- These temporary measures, taken together with existing Small Business Rates Relief, mean that around 900,000 properties, or 45% of all properties in England, will receive 100% business rates relief in 2020-21.
Local authorities will be fully compensated for these Business Rates measures so that their capacity to provide services will not be impacted by these measures.
21. Is there any direct funding available for businesses for 2020-21 to mitigate the impact of Covid-19?
The government has announced that it recognises many small businesses pay little or no business rates because of the Small Business Rate Relief (SBRR) scheme, so they have introduced grant funding for those SBRR eligible businesses so that they too can avail of government assistance:
- To support those businesses, the government will provide £2.2 billion of funding to be distributed by Local Authorities in England.
- This will provide £3,000 to around 700,000 business currently eligible for SBRR or Rural Rate Relief, to help meet their ongoing business costs.
- For a property with a rateable value of £12,000, this is one-quarter of their rateable value, or comparable to 3 months of rent.
- Most properties that are eligible for SBRR will have a lower rateable value, and so this will represent an even greater proportion of their annual rent.
22. What if my business has outstanding tax liabilities that I may not be able to pay in due time because of Covid-19 related business disruption?
The government is setting out measures that will seek to enable those businesses and self-employed individuals with outstanding tax liabilities to receive support with their tax affairs:
- HMRC has set up a dedicated COVID-19 helpline insert line # when available to help those in need, and they may be able to agree a bespoke Time to Pay arrangements.
- Time to Pay arrangements were previously used in response to flooding and the financial crisis, giving businesses a time-limited deferral period on HMRC liabilities owed and a pre-agreed time period to pay these back.
- To ensure ongoing support, HMRC have made a further 2,000 experienced call handlers available to support firms when needed.
HMRC will also waive late payment penalties and interest where a business experiences administrative difficulties contacting HMRC or paying taxes due to COVID-19.
23. My business is struggling to access finance due to Covid-19’s impact on lender confidence, is there any new government help with financing?
The government will launch a new, temporary Coronavirus Business Interruption Loan Scheme, delivered by the British Business Bank, to support businesses to access bank lending and overdrafts:
- The government will provide lenders with a guarantee of 80% on each loan (subject to a per lender cap on claims) to give lenders further confidence in continuing to provide finance to SMEs.
- The government will not charge businesses or banks for this guarantee.
- The Scheme will support loans of up to £1.2 million in value.
- This new guarantee will initially support up to £1 billion of lending on top of current support offered through the British Business Bank.
24. Can I claim on my company’s insurance for any disruption and/or loss of earnings as a result of Covid-19?
We understand that some companies have been told by their insurance companies that they have a list of diseases for which they will pay out insurance, with some companies not adding Covid-19 to this list.
We are seeking clarification with Government on this issue.