Many businesses and their employees are facing a great deal of uncertainty at the moment. With the government announcing a series of measures to help protect workers and support them through this period, many of us have lots of questions about our legal rights and the responsibilities of employers. Here, Martha McKinley, an employment law solicitor at Stephensons answers some of your most pressing questions.
I’ve been asked to work from home, what should I keep in mind?
Current government advice is that all employees who can work from home should do so. Employees working from home are expected to adhere to their normal hours and be paid their usual salary unless a different agreement has been reached between the employee and employer. Employees impacted by the nationwide closure of schools and private childcare providers may be able to share care of their children from home provided they are also able to work from home. However if this is not possible, then employees are permitted to take a reasonable amount of time off during their working hours to care for a child or other dependent who is unwell. This time off is unpaid and the employee must advise their employer of the reason for the absence as soon as is reasonably practicable and for how long it is expected to last.
Some employees who cannot work from home may nevertheless feel worried about attending the workplace. Where possible, employers should put in place measures to enable employees to adhere to the social distancing government guidance and to alleviate concerns staff may raise. If an employee does not wish to attend work, they may wish to take a period of holiday or unpaid leave provided their employer agrees to this. However at present an employer can refuse to grant such leave.
I’m still at work, but I’m worried about my health and safety, what should I do?
Employees who raise concerns to their employer that their own (or someone else’s) health and safety is being put at risk are likely to have made a protected disclosure (also known as “blowing the whistle”). If they are dismissed as a result, this will give rise to a claim for automatic unfair dismissal. Similarly employees who leave work due to concerns that they are in serious or imminent danger which cannot be avoided, and are dismissed for doing so will also have a claim for unfair dismissal, regardless of their length of service. Employees should not be put to a detriment for raising these type of concerns, otherwise this will also give rise to a claim that can be brought in the Employment Tribunal.
The government has indicated that people with an existing long term health condition or care for someone with such a condition, people over 70 and those who are pregnant are classed as being “vulnerable” and should follow more stringent social distancing measures. In addition to this group, an “extremely vulnerable” set of individuals such as those diagnosed with cancer and undergoing treatment, or those who have severe chest conditions who should follow the more restrictive “shielding” guidance for a minimum of 12 weeks.
At present the guidance states that employers should “ensure vulnerable employees are strongly advised to follow social distancing guidance” but falls short of stating that these employees must not be required to attend work. Employers should therefore, where possible, enable these individuals to work from home and/or minimise their contact with other employees however there is no absolute requirement for an employer to take steps to enable this to take place. However, should an employee in either of these groups refuse to attend work, it is highly doubtful whether an employer would be justified in dismissing or disciplining these individuals given the unprecedented circumstances of the current pandemic.
If an employee is dismissed or subject to less favourable treatment due to his/her membership of the vulnerable or extremely vulnerable group then this may also amount to discrimination. Age, pregnancy and disability are all “protected characteristics” under the Equality Act 2010 and as such less favourable treatment of these groups of employees may constitute unlawful discrimination, as well as giving rise to a claim for unfair dismissal. In particular discrimination because of a disability, or something connected to a disability is prohibited, and many of the employees affected by the social distancing guidance will be disabled according to the Equality Act definition. There is also the possibility of a claim for failure to make reasonable adjustments and/or indirect discrimination and as such employers must take extra care when considering how best to protect disabled employees.
What is the situation with sick pay?
Employees and workers have the right to receive statutory sick pay from the first day of illness or self-isolation due to coronavirus provided they earn at least £118 per week and meet the other requirements of the SSP scheme. Current government guidance states that those with symptoms of coronavirus must self-isolate for 7 days and those sharing a household with that individual should self-isolate for 14 days. The employee does not need to provide a sick note for first 7 days of this period as they are permitted to self-certify. Following this, an online self-isolation note can be obtained from the NHS website or mobile app and this is sufficient to enable an employer to pay SSP. SSP is payable at a rate of £94.25 per week for up to 28 weeks.
I’ve been told my role will be furloughed, what does this mean?
As many non-essential businesses are now required to close, the government has announced the new Coronavirus Job Retention Scheme. Although this has not been enacted by way of legislation, under the Scheme all UK employers regardless of size or sector, can claim a grant from HMRC to cover 80% of the wage costs of employees who are not working but kept on the payroll “furloughed” for up to £2,500 per calendar month for each employee. Employers can choose to top up the remaining 20% if they wish. The intention is that this scheme will be back-dated to 1 March 2020 and be open for at least 3 months and will be extended as necessary. The scheme applies to all employees on PAYE including those on zero hours contracts. This means that it will likely cover many workers as well as employees.
Anyone who is self-employed or earns less than £118 per week is not eligible for SSP or payment under the Furlough Scheme, however the government has very recently announced a package of support specifically for self-employed individuals. There has also been a call for measures to be implemented which support individuals who may not have a guaranteed income at the required level, ie those on zero hours contracts and employed through agencies.
The aim of the Furlough Scheme is to reduce the number of business which are required to lay off staff, or make redundancies. However should the temporary closure of a business be necessary notwithstanding this Scheme, then employees should be aware that unless their contract specifically provides that they can be laid off, they are required to be paid in full during any period of time during which their employer’s business is closed. Employees whose contracts do provide for a period of lay off should check whether they are eligible for a statutory guarantee payment and/or Job Seeker’s Allowance. Employers making redundancies during this time should follow a normal redundancy consultation process and ensure that all statutory and contractual entitlements are paid. Employers should ensure that they have explored all other options before taking such a step as instant dismissal of an employee with more than two years’ service without a fair process being followed is very likely to be unlawful, regardless of the current circumstances.