Answers to your questions from Employment Law expert Stuart Chamberlain.
For those of you who attended our recent HR webinar Coronavirus: how to manage your workforce with host Amanda Chadwick, we have the answers to your questions!
Employment Law specialist Stuart Chamberlain has answered each one of your HR-related queries below.
And for those of you who missed the webinar, there’s still a chance to catch up, simply click the link. You may also find the Q&As useful to your own business operations.
Your HR and Employment Law questions answered...
CORONAVIRUS QUESTIONS AND ABSENCE FROM WORK
Question 4: A member of staff has no symptoms of corona virus but has a stuffy nose, blocked ear and doesn’t feel too well. She is being asked to work on an emergency rota basis for up to 2 days per week to keep our Student Accommodation open and doesn’t know whether to come to work as her parents are saying that they don’t want her to come to work. If she self isolates is she required to stay off for 7 days if no-one else in her house is ill? If another member of the household is ill then would that extend to 14 days self isolation? Answer: The Government advice is as follows... • if you have symptoms of coronavirus, you'll need to stay at home for 7 days • if you live with someone who has symptoms, you'll need to stay at home for 14 days from the day the first person in the home started having symptoms. If you live with someone who is 70 or over, has a long-term condition, is pregnant or has a weakened immune system, try to find somewhere else for them to stay for 14 days. Please keep up to date via the NHS advice page. The advice will naturally be more up to date than the information we can give out and may change again.
Question 10: If someone in your family develops a cough/fever and you live in the same house, you now also under government advice should self isolate? Is it 7 days / 14 days isolation? Do the people self isolating with the ill person receive SSP? Paid from day 1? Are we eligible to pay SSP or company sick pay for the full length of her absence if she does stay off? Answer: The Government advice relating to your query is as follows... • if you have symptoms of coronavirus, you'll need to stay at home for 7 days • if you live with someone who has symptoms, you'll need to stay at home for 14 days from the day the first person in the home started having symptoms If you live with someone who is 70 or over, has a long-term condition, is pregnant or has a weakened immune system, try to find somewhere else for them to stay for 14 days. Yes, SSP is available from the first day of absence, as of 13 March 2020 - although this piece of legislation is yet to come into force. And she would be entitled to SSP and Company sick pay in line with your company sick pay rules. You may be eligible for government help with wages and SSP. Please keep up to date via the NHS advice page. The advice will naturally be more up to date than the information we can give out and may change again.
Question 5: If a member of staff is already self-isolating from 09/03/20 following returning from Italy. They have no symptoms and would be due back to work on an emergency rota basis for up to 2 days per week to keep our Student Accommodation open for the students who cant go home. This person has now said that she suffers with asthma and that all asthma patients should self-isolate for 12 weeks. If she has to continue with the self-isolation, should we class the 12 weeks from the date she went off or from now? If she continues to be off for 12 weeks – what pay is she entitled to? What are the legal obligations on the business to pay staff if they are not able to attend work due to childcare issues when we are only requesting the staff to attend work 2 days instead of 5 in a week to support on an emergency basis? Answer: The continued self-isolation starts on the date she needed her 7 days’ isolation following her return form Italy. She apparently never mentioned asthma at this point. However, to be “entitled” to total self-isolation the employee should receive a letetr or email or text from her GP or Health Authority stating that she must isolate for 12 weeks. Perhaps you could ask for such proof. If she is ill, she would be paid SSP for this time. If not, and you aagree to the arrangement, she could work at home on full pay. Working parents now have real problems now that the Government has ordered schools and nurseries to close. This is a very difficult situation for all concerned. She could certainly claim dependant leave (unpaid), which deals with such emergencies (the length off work may range from two hours to two days) but there is no right to leave all the time that a school is shut. The dependant leave it would have to be supplemented by parental leave ( again, unpaid) and either unpaid leave or paid annual leave from her entitlement. In view of the uncertainty about how long the COVID-19 crisis will last, you should seek soeme agreement with her about longer term ararngements
Question 35: What are the rules for "high risk" staff members and what is classed as "high risk"? Answer: The precise wording is “vulnerable”. The Government website explains who falls under this definitions and the individual’s GP or Health Authority will be writing to all who should self-isolate for the next 12 weeks. They are entitled to sick pay (SSP).
Question 36: Is contractual right to pay employees affected if Government force a lockdown and de facto business closure? Answer: The Government only intends the closure to be temporary – although it may turn out to be fatal for a company. The intention is merely to close during the emergency. The contractual arrangements may cover this type of situation – although this may be doubtful. You can hardly be expected to pay your employees if you have been closed and are not receiving any income; redundancies maybe on the near horizon. But do look to see if you are entitled to any Government funding for the business or for wages so that you can make interim arrangements and return to work after the CoVID crisis is over.
QUALIFICATION FOR SSP
Question 14: If you are self isolating out of choice. Can they still get sick pay? Answer: If the individual is self-isolating out of choice rather than on Government or PHE advice you should probably treat the situation sensitively. If they are working remotely – and you agree to the arrangement - then they may still be entitled to full pay. Otherwise, the temporary arrangements for SSP will apply. The government guidance was: • “if you have symptoms of coronavirus, you'll need to stay at home for 7 days • if you live with someone who has symptoms, you'll need to stay at home for 14 days from the day the first person in the home started having symptoms If you live with someone who is 70 or over, has a long-term condition, is pregnant or has a weakened immune system, try to find somewhere else for them to stay for 14 days”. During these times or for the whole of the 12 weeks if they are very vulnerable, they should receive SSP.
Question 17: Are the SSP amendments UK wide? Answer: The rules on SSP, including the temporary arrangements during the COVID-19 crisis apply to all the UK
Question 21: Are the waiting days SSP definitely relaxed? As Peninsula Webinar on Tuesday said as of 16.03.2020 the waiting days still stand and the relaxed waiting days had not come into play yet. Thank you Answer: From all the available evidence it appears that the relaxation on SSP waiting days has not yet come into force.
Question 39: What is the procedure for SSP claim as we have some clients who are saying they will just put staff on SSP as there is no work? Answer: Those who can work from home are entitled to full pay. Under the emergency legislation (but yet to come into force), if they have to self-isolate in accordance with the Government guidelines on COVID-19 then they will be entitled to SSP. To receive SSP during the present emergency you must qualify under the guidelines. If there is no work then, technically, they will redundant and employees with two years’ service will be entitled to a redundancy payment although the employer might wish to consider other measures before such a step - such as lay off or short-time working or unpaid leave, subject, of course, to the employees’ agreement. Employers may be entitled to government help in the paymnt of wages and SSP.
Question 37: If a person has to self isolate for 12 weeks because of potential health problems do they get ssp for the whole 12 weeks please? Answer: Yes. The temporary change to the SSP will last until the Government decides the coronavirus emergency is over.
ENTITLEMENT FOR SSP AND/OR FULL PAY
Question 22: How do you stop an employee from saying they’re sick being told they are on SSP and deciding to come back? Answer: As an employer you are responsible for the health and safety of your workforce. The Government has set down advice on who should self-isolate. If the employee falls within the definition then he or she would represent a health risk to all if he or she tried to return to work during the emergency. The employee should be advised of this; If the he or she still refuses to accept your instruction to stay at home, you have the option of suspension.
Question 18: An employee has been advised by 111 to self-isolate (yesterday). He has come to work. If he is asked to leave is he entitled to full pay? Answer: No, because he presumably falls within the Government’s instruction to self-isolate in relation to Covid-19. He is entitled to SSP. If you had closed temporarily and he was asked to work from home and had no health problems, then he would be entitled to normal pay.
Question 20: What is pay situation for employees choosing to self-isolate rather than being asked by us to stay at home? Answer: The Government has advised as many as possible to work from home ( for health and safety and to avoid unnecessary travel. If this is possible, and you agree to the temporary arrangements, they should receive normal pay. If they fall within one of the Government’s definitions i.e... • if you have symptoms of coronavirus, you'll need to stay at home for 7 days • if you live with someone who has symptoms, you'll need to stay at home for 14 days from the day the first person in the home started having symptoms. They are entitled to SSP from Day One of the self-isolation. The Government scheme may be able to help you with meeting such costs.
HOW LONG IS SSP PAYABLE FOR?
Question 11: Can you please confirm SSP is from the 1st day? As we were on a webinar with Peninsula earlier in the week and they said this has not yet come into play. Answer: No, this has not come into play just yet.
Question 16: Is it all SSP from day 1, or just SSP related to Covid19 ? Answer: The temporary changes to the SSP scheme relate to all SSP during the present COVID-19 crisis. Once this emergency is over the SSP scheme is likely to revere tot its usual arrangements.
Question 13: How long is SSP payable for? Answer: The temporary arrangements for payment of SSP will last through the present coronavirus emergency.
LAY OFF AND REDUCED WORKING HOURS AND PAY
GENERAL REDUNDANCY AND LAY OFF QUESTIONS
Question 1: I run a party company with 3 employees. My sales have dropped to a level I cannot sustain staff wages. Can I ask staff to take unpaid leave or reduce hours without making them redundant? Answer: You can do either of these things as an alternative to redundancy, provided that you have the employees’ agreement. They are likely to agree to them as a temporary measure during the coronavirus emergency.
Question 12: Does the legal status of employees who have been employed less than 2 years still apply if they are let go through the CoronaVirus period? i.e. that they can be let go as long as there is no discrimination? Answer: The need to have served two years with the employer to become eligible for a redundancy payment still applies. Anything else given to employees is an ex gratia payment
SPECIFIC REDUNDANCY AND LAY OFF QUESTIONS
Question 2: One of my clients is a private school. They have asked what they should pay to staff given that school closures. Pay teachers full pay and contracted staff their contracted hours or pay based on some other arrangement – eg worked hours only. Is there any guidance on payments to teachers given the closures? Answer: It will depend on the contractual terms and conditions of employment relating to the particular educational establishment.
Question 3: We are a small business of 5 staff who are mostly full time. I am thinking about the following discussions with them. 1. A temporary lowering of their pay - to be repaid back in a un-specified period 2. A temporary lowering of their pay - NOT to be paid back Assuming that all agree, are there any issues with this? What if some staff cannot afford this and I agree a differing amount for each member of staff? Answer: There is nothing wrong with 1 and 2, provided you get the agreement of the staff. There may be discrimination issues in your third option. However, before you take these steps, investigate if you are entitled to the Government’s scheme (Job Retention Scheme) to underwrite the wages (and SSP) of private companies.
Question 6: We have another member of staff who is being asked to work on an emergency rota basis for up to 2 days per week and to take phone calls and emails where possible at home on the other 3 days per week – he is a Maintenance person so can’t really do much work if any from home. He is asking that with the schools closing if we will still pay him if he is not able to do his 2 emergency rota days per week Answer: You have to come to an arrangement with him otherwise there is a risk of a redundancy - he cannot do the work you wish to assign to him. He could be offered part-time – he obviously cannot satisfy the requirement on two days a week. But perhaps he is unlikely to want to go part-time and lose money. Be careful about singling him out for particular treatment during this temporary situation – the schools will re-open once the COVID -19 crisis has passed. Above all, see if you can get something from the Government’s Job Retention Scheme to paper over the cracks until you return to “normal”.
Question 7: I have a client who own a restaurant. They also do takeout service. The restaurant business is now totally gone. He has decided to close the restaurant until further notice. The takeaway part is ok. There are three staff employed in the restaurant. What is his position if he needs to lay off the 3 restaurant staff? Answer: He should consider alternative steps before making them redundant. He might offer unpaid leave and he should certainly investigate if he is entitled to the Government’s scheme (Job Retention Scheme) to underwrite the wages (and SSP) of private companies in this emergency.
Question 8: We are retailers in a seasonal Cornish town. Our staff are not on zero hour contracts but their hours are variable through the year with more hours in the spring and summer. If enforced shop closures happen can we ask staff to take unpaid leave, rather than make redundancies? Answer: Yes, preferably with their agreement. You might also investigate entitlement to the Government’s scheme (Job Retention Scheme) to underwrite the wages (and SSP) of private companies in this emergency situation.
LAY OFF AND PAY
Question 19: If you have to "lay off" staff is the statutory guarantee pay still just £29 per day for 5 days only? Answer: Yes. That is the situation at the moment, however, lay off pay increases to £30 from 6 April.
Question 15: If the company is struggling to pay the employees due to the downturn in sales - can they pay a reduced wages to the employees? Answer: Yes, provided that they get the employees’ agreement to the measure.
Question 23: In terms of SGP are salaried employees treated any differently? Answer: Only employees are entitled to statutory guarantee payments. They must have been continuously employed for a month. Full-time employees are paid the full amount. For part-time employees, the right is pro-rated (i.e. reduced in proportion to their part-time hours).
Question 24: If implementing short working hours for salaried employees, would their salary just be pro-rata? Answer: Where an employee is laid off or put on short-time working, they may have a right to receive a statutory guarantee payment. Only employees are entitled to these statutory guarantee payments. They must have been continuously employed for a month. Full-time employees are paid the full amount. For part-time employees, the right is pro-rated (i.e. reduced in proportion to their part-time hours).
Question 25: If the Government requests businesses to close, does this impact on how the remaining staff are paid or would it revert to lay off and SGP? Answer: This is a temporary arrangement (the Government hopes!) during the present coronavirus crisis. It is not intended to lead to redundancies. You might investigate your entitlement to the Government’s scheme to underwrite the wages ( Job Retention Scheme)) of private companies in this emergency situation. This measure is intended to preserve business and employment.
Question 26: What about looking to reduce salaries? Answer: You can investigate this and gain your staff’s agreement to this as a temporary measure. You might also investigate your entitlement to the Government’s scheme to underwrite the wages (and SSP) of private companies in this emergency.
Question 27: How long into lay-off do you continue to pay staff full pay? Answer: If the employee’s contract of employment says that the employer can lay off the employee or put him or her on short-time working, then they are legally allowed to cut hours and pay. And there is no limit on how long the employer can lay off the employee or put him or her on short-time, unless their contract says to the contrary. However, an employee who has been laid off or put on short-time working for four(4) or more consecutive weeks or a total of six(6) weeks (of which no more than three(3) are consecutive) in any period of 13 weeks and has worked for the employer for two years, may be entitled to a statutory redundancy payment.
NO LAY OFF CLAUSES IN THE CONTRACT
Question 30: So if there's no lay off clause in the contract, how can engagement with employees to negotiate especially if the alternative is redundancy for some! Trying to keep group intact as a whole Answer: Laying off staff without a contractual right to do so will be a fundamental breach of contract on your part. Rather, in this emergency you should try to get the staff’s agreement to the change. Meet them, be transparent and explain the situation. They are likely to prefer some work and pay rather than the finality of dismissal by reason of redundancy. You might also investigate your entitlement to the Government’s Job Retention Scheme to underwrite the wages of private companies in this emergency.
Question 38: If a client doesn't have contracts of employment in place, what is the situation relating to "lay off" pay? Answer: Contracts of employment do not have to be in writing. However, unilaterally deciding to lay staff off, put them on short -time or pay them less will be a fundamental breach of contract on your part. Rather, you need to get the workforce’s agreement: meet them, be transparent and explain the crisis, and seek to arrange their agreement to this or to a pay cut. They are likely to prefer some work and pay rather than dismissal by reason of redundancy in the coronavirus emergency. You might also investigate your entitlement to the Government’s scheme to underwrite the wages (and SSP) of private companies in this emergency.
Question 31: In respect of the statutory lay off clause. If this is absent are you entitled to full pay whatever the circumstances? Answer: If you need to lay off staff and there is no contractual right for you to so then any such action on your part would be a fundamental breach of contract. However, in such extraordinary circumstances as the coronavirus crisis, you should seek to obtain their agreement t. Meet them, be transparent and explain the situation and seek to secure their agreement to this or to a pay cut. They are likely to prefer some work and pay rather than dismissal by reason of redundancy in the coronavirus emergency. You might also investigate your entitlement to the Government’s scheme to underwrite the wages (and SSP) of private companies in this emergency.
Question 32: 30 days’ notice to reduce hours of staff in order to avoid redundancies? Answer: It is doubtful if full consultation can be achieved during the emergency. For businesses time is of the essence. Indeed, in the present COVID-19 emergency it will be very hard for employers to comply with that recognised redundancy procedures. However, any employer tempted to skip the process leading to a ‘fair dismissal’ on ground of redundancy may find that certain issues - including consultation and the requisite notice – may come back to haunt him or her at the employment tribunal at a later date. The situation is intended to be temporary – that things will return to ‘normal’ once the crisis has passed. Employers should seek therefore, to examine alternative solutions – for example, lay-offs or short-time working during the crisis period or even periods of unpaid leave. Employees may be willing to accept less pay as an alternative to the finality of a decision to dismiss by reason of redundancy. And examine what the Government has to offer: there are a series of measures, including the Job Retention Scheme, to help employers through the crisis. In summary, the legal requirements have not changed but staff may be willing to set aside the legal notice periods during this temporary crisis to preserve their jobs. But you must have their complete agreement and an understanding of the context – it is temporary.
TIME OFF FOR DEPENDANTS
Question 33: I one of my staff is not a key worker... how much do I pay her if she is to stay at home to care for her kids not in school? Answer: I’m afraid that she is not entitled to be paid – unless, of course, you agree otherwise. She has to ask for dependant’s leave (usually two days’ unpaid leave) topped up by parental leave (again, unpaid, unless you decide otherwise) and then use paid annual leave or ask for unpaid leave.
Question 6: In your opinion, do you think that the Good Work Plan will go ahead in April 2020? Or might it be delayed like IR35 has been? Answer: There has been no intimation from the Government that the changes under the Good Work Plan will not come into force on 6 April 2020. The necessary legislation is already in place. There may, however, be some problems with the implementation of some of the measures.
Question 9: If staff are offered possibility of homeworking during this period, but they do not want to or are not capable due to lack of computer skills, would they have right to redundancy since work is not being offered at same premises? If so, is this the case even though the work at home requirement is only temporary and they will be able to resume their office job, all being well, in a few months? Answer: It might be a step too far to make them redundant, especially if you will need them after the end of the present COVID-19 crisis. Try to get them to agree, therefore, to a reduction in pay, a temporary layoff or even unpaid leave. This is a temporary situation.
Question 29: If two members of staff didn't get their full contract handbook, is it too late to give it to them now? Answer: No, so long as they are provided with a reasonable explanation for the omission/failure. However, it could prove difficult for you to enforce any measures that they were not aware of because of this omission or failure.
Question 34: Do you have any top tips for maintaining staff moral when we're all working remotely? Answer: Stay connected – set up a daily call with your team so that you speak regularly. Call individual employees regularly (stick to 1-2-1 meetings) so that they can air any specific issues they may not wish to raise in a team environment
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