Constantine Law was founded by John Hayes, one of London’s leading employment lawyers. John advises UK corporates in the financial services, employment agencies, retail and construction sectors. John has put together the answers to your Covid-19 Employment Law Questions.
You can visit the Constantine Law website here www.constantinelaw.co.uk/
(Note: We are keeping this guidance as simple as possible. If the reader wants the specific (SSP etc) regulations to which any of the guidance below relates then please ask us).
Other useful links:
www.nhs.uk/conditions/coronavirus-covid-19
www.gov.uk/government/organisations/public-health-england
- WHEN IS SSP PAYABLE? following an announcement in the Spring 2020 Budget, the SSP deemed incapacity rules have been extended and covers those:
- who have coronavirus;
- who have coronavirus symptoms;
- who have someone in their house with coronavirus; and potentially
- who self isolate in accordance with government guidelines (see 11, on next page).
- FROM WHEN IS SSP PAYABLE? The Coronavirus Act 2020 provides for SSP to be payable from the first day of sickness absence and that small employers (fewer than 250 employees) will be reimbursed for any SSP paid to employees in respect of the first 14 days of sickness related to COVID-19.
- WHEN IS CONTRACTUAL SICK PAY PAYABLE? In principle, for all the circumstances when SSP might be payable. Check the contract to see what is payable.
- WHAT ABOUT CONTINGENT PAY ARRANGEMENTS E.G. SALES COMMISSION? This will be paid according to the terms of the contract. In most cases, no sales=no commission. This may result in some financial hardship for certain employees.
- WHAT “SICK NOTES” DO WORKERS NEED TO PRODUCE? By law medical evidence is not required for the first 7 days of The government strongly suggest that employers currently use their discretion around the need for medical evidence. The Government has launched an isolation note portal (here) for those with symptoms of COVID-19 or living with those who do.
- CAN AN EMPLOYER SEND AN EMPLOYEE HOME TO SELF-ISOLATE? Yes (health & safety considerations/ wider duty of care).
- AT WHAT POINT SHOULD AN EMPLOYER CLOSE THE WORKPLACE?
- With the exception of ‘non-essential shops and public venues’ the government has not asked other businesses to However, employees should work from home unless it is ‘impossible’ for them to do so. If employees are coming to work, employers must ensure that employees are able to follow Public Health England guidelines including, where possible, maintaining a 2 metre distance from others.
- Current ACAS guidance is that if someone with COVID-19 comes into the workplace, it does not have to In England, HPT will get in contact to discuss the case and carry out a risk assessment with the lead responsible person. This will likely include a “deep clean.” At present, most workplaces reopen.
- IF AN EMPLOYER CLOSES A SITE/OFFICE, WHAT PAY ARE EMPLOYEES ENTITLED TO?
- In principle, there is an obligation to pay at the full contractual rate because the decision has been made by the employer, the employee is not choosing to self-isolate, and the employee is willing to work or can work remotely;
- Some employers have short term “lay off” policies governing pay & Some employers will take this risk, anyway;
- Some clients are consulting with employees and trade unions to try to agree a temporary reduction in pay and benefits for the duration of the crisis, to avoid closure and job
- WHEN DOES THE CORONAVIRUS JOB RETENTION SCHEME ALLOW US TO FURLOUGH WORKERS?
- The scheme is applicable to all employees on PAYE (including those on zero hours contracts) and all UK businesses are The scheme is intended to be applied to employees who “would otherwise have been laid off during this crisis”, and while on furlough leave employees cannot continue to work. Only employees employed pre 1 March 2020 are eligible. New arrangements may apply to the self employed (to be announced).
- The employer must notify and agree the leave with the employee and confirm the new status in writing. Once the new portal is open, the employer will report this status to
- The employer will be able to claim a grant of up to 80%, “for all employment costs”, up to a cap of £2,500 per This could include additional costs such as pension contributions or other benefits. The £2,500 is probably gross and inclusive of NICs (to be confirmed). The employer may opt to top up the employee’s salary if the grant does not cover it in full, but this is not a requirement.
- WHAT ABOUT AN EMPLOYEE REFUSING TO ATTEND WORK OUT OF FEAR OF COVID-19?
- If possible, try to set them up working from home;
- If this is not possible, consider the current public health advice and whether it would be discriminatory to refuse home working;
- Ultimately, refuse pay (technically the employee will be on unauthorised sickness absence) and consider disciplinary (The alternatives may be: unpaid leave, holiday, SSP).
- WHAT ABOUT SOCIAL DISTANCING AND VULNERABLE WORKERS? The government has issued social distancing guidance for older and vulnerable people and Shielding guidance for extremely vulnerable To require these groups to work could amount to a breach of the employer’s duty of care to the employee and a breach of the implied term of mutual trust and confidence. These employees (who may be required to do social distancing for many months) are potentially entitled to SSP (or contractual sick pay) but SSP may not be affordable for employees in the long term. It is unclear if it is possible to furlough these employees.
- WHAT ABOUT EMPLOYEES (OR FAMILY MEMBERS) WITH UNDERLYING HEALTH CONDITIONS? The Equality Act 2010 (“EQA”) continues to This means:
- certain employees may have a “qualifying disability” under the EQA;
- if so, an employer will need to make “reasonable adjustments” (e.g. around working from home);
- consider “associative discrimination” in respect of those employees with carer
- WHAT ABOUT EMPLOYEES ACTING IN BREACH OF GOVERNMENT OR EMPLOYER’S GUIDANCE? Employers may wish to reinforce government guidance and could then potentially take disciplinary action against employees who act in breach.
- WHAT ABOUT AGENCY WORKERS OR CASUAL EMPLOYEES BEING SENT HOME?
- Speak to/negotiate with the agency;
- generally most agency workers can be terminated “at will;”
- occupational sick pay for agency workers is excluded from definition of “pay” under The agency is typically responsible for sick pay (and PAYE obligations).
- WHAT IF SICK PAY (AND OTHER) SCHEMES NEED AMENDING? The normal rules around variation of contract apply:
- seek consent;
- if no consent, consider dismissal and reengagement;
- unilateral imposition: but may lead to resignations and old contracts applying;
- consider collective consultation where 20+ employees
- WHAT GUIDANCE SHOULD EMPLOYERS BE ISSUING ABOUT WORKING FROM HOME? The usual rules apply (in terms of policies and policies and procedures) but especially prevalent are adherence to:
- homeworking policies;
- IT and data protection policies;
- social media policies and (d) health & safety
- WHAT IS EMERGENCY VOLUNTEERING LEAVE?
The Coronavirus Act 2020 allows employees of businesses with 10 or more staff to take one period of leave (of 2, 3 or 4 weeks) during which they will leave their main job and volunteer temporarily in the NHS or social care sector. An employee must provide the employer with 3 working days’ notice and produce a certificate issued by an appropriate authority. There is no right to payment during this period but the employee is entitled to return to their job.
Updated 26 March 2020
See www.constantinelaw.co.uk for further information or contact John Hayes or Alan Lewis at Constantine Law on (0)203 696 8230. www.constantinelaw.co.uk E: mail@constantinelaw.co.uk T: 44 (0)203 696 8230
Constantine Law is a limited company registered in England & Wales, number 09374849. Constantine Law is authorised and regulated by the Solicitors Regulatory Authority, number 621097.
