Posted by Richard White, Partner
Coronavirus and employment law: top queries from HR teams
Employment law, and employment lawyers, are in the spotlight during the unfolding coronavirus crisis, with employees looking to have their concerns addressed, and companies looking to do right by their workforce.
Over the last two weeks, we have been receiving an increasing number of queries from our clients. Companies seem to be most affected in sectors where businesses rely on people’s discretionary spend, such as leisure & hospitality and retail. In manufacturing, the story varies dependent on what a business manufactures; in medical supplies or supplies to the food industry, unprecedented demand creates its own challenges.
Richard White, partner in our Employment & HR team, answers three questions most commonly asked by HR professionals as they seek to plan for and mitigate the effects on employees.
Sick pay: what do we have to pay employees who self-isolate?
There’s two types of sick pay to consider here: statutory sick pay (SSP) and company sick pay.
According to the current advice, employees who self-isolate on public health guidance, are entitled to statutory sick pay from day one of self-isolation. There is no need to speak to a medical professional.
When it comes to company sick pay, it is a question of your policies and employment contracts as to whether employees who self-isolate on public health guidance are legally entitled to it. When employees are experiencing no or very mild symptoms, and in the normal sense are ‘fit for work’, technically they may not be entitled to company sick pay. However, not paying them company sick pay, even if arguably permissible under your contracts, may encourage them to turn up to work in circumstances where they should be self-isolating. This would create a health & safety risk for your staff and others (e.g. members of the public), and potentially amount to a breach of your duty to provide a safe place of work. And you may end up having to send them home from work anyway, which may entitle them to full pay in any event.
Where employees are unable to work because they are unwell for whatever reason, your normal policies and contractual terms apply.
What should we do about our workforce if schools close?
If – or perhaps that’s really when – schools close, a proportion of your workforce will need to look after their children. Under UK employment law, parents are entitled to reasonable unpaid time off in the event of an unexpected disruption to childcare arrangements.
Your staff will understandably be concerned about missing out on pay, especially if school closures turn out to be lengthy. The issues HR professionals should consider are:
- Do you have a policy to pay for some of that time off?
- If employees are willing to do so, can some of this time off be taken as paid leave, e.g. holiday?
- With children off school, can some of your employees still work from home?
With the latter question, the answer will depend on the nature of the job, whether the role allows for flexible hours, and whether there are other people available to look after children. The latest briefings from the Government indicate that grandparents over 70 will not be able to help; however, some parents have been clubbing together to share child minding on a small scale.
What should we do about our workforce if our sales pipeline dries up?
That is a burning issue for a number of sectors. If business is slow, or entirely non-existent, staff are underutilised and paying people becomes an issue as cash flow is affected.
Essentially, there are three broad things to consider:
Talk to your people and see whether you can reach a mutually acceptable solution. It may involve staff taking paid holiday – and holiday now means you can have more staff in work later when the situation improves. Alternatively, your staff may be able to take unpaid leave, or agree to reduced pay for a temporary period of time.
Note that if you are proposing to make changes to terms and conditions of employment, either temporarily or permanently, and if 20 or more employees are involved, there may be a requirement to undertake a collective consultation process.
Here, we need to explain the terminology first. In a non-employment law context, the terms “lay-off” and “redundancy” are often used interchangeably. In fact, they are quite different: a “lay-off” is where employees are not provided with work by their employer and the situation is expected to be temporary. Another term used alongside lay-offs is “short-time working”, which occurs when employees are provided with less than 50% of their normal working hours in a week.
In some sectors, notably manufacturing, lay-off clauses are often built into employment contracts. Where this clause exists, it’s a question of managing employee relations when using it. It is crucial to remember that if you lay off an employee for 4 consecutive weeks, or for 6 non-consecutive weeks within a 13-week period, legally it may amount to a redundancy, meaning the employee may be entitled to redundancy pay.
For redundancy situations, you will need to follow the normal procedures as per ACAS guidelines. Large scale redundancies, where 20 or more dismissals are proposed, require a collective consultation process.
The majority of employers are most likely still in phase one, i.e. considering or negotiating voluntary agreements.
Top tips for employers: what to do right now
The situation will undoubtedly escalate; at the time of writing this (17 March), the Government has just stepped up ‘social distancing’ measures asking people to work from home where they possibly can. The two key words at the moment are planning and communication.
Planning for future developments is crucial; you should, for example, know exactly what you are going to do as an organisation if all schools close tomorrow. “Fail to plain and plan to fail”, if trite, remains true: solid planning will help you reduce the risk right now and avoid problems down the line.
Communication, as we are all learning on a national and international level, is equally key: to be successful, it needs to be early, consistent and regular. Consistent and regular messaging will help reassure your staff; while starting early is important to allow sufficient time for consultation processes to take place if measures you are proposing to take may result in 20 or more dismissals.
As the situation develops, we will continue to provide up-to-date, relevant, pragmatic guidance for employers. For any queries related to the impact of the coronavirus, email us on
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