Written by Brabners LLP
With the rise in Coronavirus (Covid-19) cases in the UK and the severity of the issue escalating across the world daily, employers and recruiters are struggling with uncertainty around legal issues in these unprecedented circumstances. We assess the current position, two weeks on from our previous article. However, we stress that it is important to note that government advice is changing regularly.
There has been a lot of debate, over the past few days, about what staff who are self-isolating should be paid. Questions have also arisen in respect of agency workers and whether or not they are entitled to receive Statutory Sick Pay (SSP). Although the government’s position in relation to SSP is developing, we have tried to clarify the position as it stands below.
So, without further ado, what should staff who are self-isolating get paid? Read on to find out more!
Early ACAS guidance suggested that whilst there wasn’t a legal right to sick pay if a person wasn’t actually sick, if somebody was self- isolating on medical advice, had to go into quarantine or was abroad in an affected area and could not travel back, it was good practice for employers to treat their absence as sick leave and pay normal sick pay, or agree for the time to be taken as holiday.
On Friday (13 March 2020), new legislation was introduced by the Government which provides for SSP to be available to anybody isolating themselves from other people in such a manner as to prevent infection or contamination with coronavirus, in accordance with guidance published by Public Health England, NHS Scotland or Public Health Wales. ACAS guidance advises that where an employer offers contractual sick pay (i.e more than the minimum SSP), then it is good practice to pay this. If you are paying people in full where they are self-isolating, you may wish to reserve the right to review this (and reduce pay to SSP) in light of the developing Covid-19 situation.
The general position is that “employees” (a wide definition which includes agency workers and all those individuals whose earnings are liable for class 1 National Insurance Contributions (“NICs”) -more on this later!) are entitled to SSP provided that they meet the statutory eligibility requirements. The requirements are that the individual must have been ill for at least 4 days (including non-working days) and they have must have had average weekly earnings not less than the Lower Earnings Limit. The Lower Earnings Limit is currently £118 a week and the average is calculated on the basis of the 8 weeks prior to the period of incapacity (illness). Remember that SSP isn’t payable if the worker hasn’t yet commenced work or if they have already received their 28-week SSP entitlement.
In light of Covid-19, the government has announced that emergency legislation will be brought in so that SSP will temporarily be paid from the 1st day of absence rather than the 4th day. However as far as we are aware this has not yet been introduced. Whilst this will be welcome news for employees, the rate of SSP will be a lot less than their normal earnings (SSP is currently £94.25 per week) and therefore there is a risk that individuals may still be tempted to come into work.
From an employer’s perspective however, the burden of paying SSP to so many employees could be catastrophic for their business. The government promised in its budget (which was released on 11 March 2020) that those companies with less than 250 employees will be able to claim the cost of the first 14 days of SSP paid. However, we are still waiting for that legislation to be published.
If agency workers are entitled to SSP by virtue of being on payroll then does this also apply to ‘inside IR35’ workers who are also on payroll?
As outlined above, the current definition of ‘employees’ for SSP purposes extends to a wider category than those covered by the “normal” employment status tests. The definition includes those individuals whose earnings are liable for Class 1 NICs. We will have to wait to see whether the new emergency legislation adopts the same definition. However, on the assumption that it does, a limited company contractor that falls within IR35 (that has deductions made at source for class 1 NICs) would be eligible to receive SSP.
Nevertheless, it’s likely that contractors that fall within IR35 are not going to be eligible for SSP until 8 weeks after 6 April or from when class 1 NICs have been paid.
What about those employees/workers who don’t earn the minimum weekly earnings to be eligible for SSP?
Estimates suggest that the number of people this could affect is between 1 and 2 million. At the current time, the UK government has indicated that these workers may be eligible to receive certain benefits instead. Concerns have been raised about how long people would have to wait to receive such benefits.
Where does this leave those who self-isolate without medical advice?
In light of Friday’s new legislation (which provides that SSP is payable to anybody who is isolating themselves from other people in such a manner as to prevent infection or contamination with coronavirus disease, in accordance with public health guidance) in most cases, an employee who is in quarantine or voluntary self-isolation will be regarded as being incapable of working for SSP purposes.
What systems can be implemented to stop the spread of the virus?
Although the government is updating its ‘best practice’ position almost daily, below we list a number of steps which employers and recruiters may wish to take into account over the coming weeks:
Keep up to date with government guidance
Employers and recruiters should keep themselves up to speed with official and regularly-updated guidance from the UK government.
Many employees may be fearful of the potential spread of the virus and this could lead to increased requests to work from home or precautionary sick days. These fears can be reduced by clear communications from the business in relation to steps that are being taken to reduce risks, such as a postponing all travel to at-risk areas, the implementation of hand sanitizer regimes and a clear reporting process for sickness absences.
You could do this by way of a guidance note or policy. We have received a number of requests for policies and guidance notes and can assist with drafting such documentation as well as providing general advice.
Promote good hygiene
Public Health England recommends that simple hygiene rules (the same as for cold and flu) are followed including what to do when coughing and sneezing, how to wash hands, trying to stay away from ill people, not touching your face with unclean hands and cleaning and disinfecting frequently touched surfaces and objects. Employers should remind staff of these recommendations and encourage them to follow them.
Make staff aware of the symptoms of COVID-19 and what they should do if they become unwell
Most people will now be aware of the symptoms but it’s worth reminding staff what they are.
Where staff have become unwell and believe that they have symptoms of coronavirus they should dial NHS 111, stay indoors and avoid contact with other people immediately.
The government has also produced advice on what to do if an employee becomes sick at work. Familiarise yourselves with this so that you know what to do and ensure that all staff are aware as well.
Returning from an affected area
The UK government has issued advice to those returning to the UK from specified countries or areas that people must follow. Employers should keep up to date with the list and require staff to comply with the government advice.
Employees who travel overseas for work
Employers with employees who travel overseas for work are urged to monitor the Foreign and Commonwealth Office advice in relation to travel. Ideally trips to at-risk areas should be postponed, or carried out via an alternative media such as Skype.
Have a system in place for staff planning to visit an affected area
Where anyone is planning to travel to an area with higher concentration of the virus, outside of work, they should inform you in advance and agree a plan for managing this.
Employees who are self- isolating
If employees have returned to the UK from specified countries or areas then they must follow the UK government’s advice.
Currently, the UK government advises that if you have not been to any of the specified areas then normal practice should continue and you should deal with your symptoms and the need for any time off in the usual way.
Employees who are self-isolating should be asked to notify you as soon as possible and keep you updated.
There have been numerous reports in the news in relation to increased hostility and harassment towards those who are of Asian origin due to the coronavirus outbreak. Employers should be very aware of this issue and make it clear than any instances of differential treatment or abuse due to an individual’s ethnic origin will amount to discrimination and will not be tolerated. Businesses may also wish to make it clear that inappropriate jokes or ‘banter’ in relation to the issue will not be tolerated.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership