Coronavirus Questions and Answers
- AuthorDanielle Lister
CORONAVIRUS – QUESTIONS AND ANSWERS FOR EMPLOYERS AND EMPLOYEES
1. As an employee, am I entitled to pay if I self-isolate?
If the employee chooses to self-isolate but are not instructed to do so by a medical professional:
Strictly speaking, no. There is no statutory right to receive pay for time away from work when self-isolating. However, there are a number of reasons why an employer might wish to consider paying an employee in the current circumstances. Firstly, when faced with the possibility of no pay during this time, the employee may be inclined to attend for work. This would put the employee's colleagues and the employer's wider business at risk if it transpires that the employee does indeed have the virus, which is clearly not a desirable result.
There is a small possibility that failing to pay an employee during a period of self-isolation may be considered to be a breach of the implied term of trust and confidence, entitling the employee to resign and claim constructive unfair dismissal against the employer. This seems unlikely given there is no right in law to pay at this time, but nevertheless it is a possibility.
Finally, there are other non-legal considerations, such as general morale within the employer's business at what is likely to be a worrying and stressful time for affected employees, and also moral considerations in ensuring the wider workforce feel safe and secure when attending for work, all of which might encourage an employer to consider paying an employee when self-isolating.
If the employee is instructed to self-isolate by a medical professional:
Yes, they are entitled to sick pay. Close inspection of the legislation dealing with sick pay (the Statutory Sick Pay (General) Regulations 1982) suggests that if someone who self-isolates does so because they are given a written notice to do so, i.e. by a medical professional, then they are deemed in accordance with the Regulations to be incapable of work, and so are entitled to statutory sick pay. This is supported by ACAS and government advice including an a recent announcement by Health Secretary, Matt Hancock who has said that those in self-isolation on medical advice should be treated as on sick leave and may be eligible for statutory sick pay.
2. I am an employee and need to take time off to care for another. Am I entitled to paid time off?
Where the person who needs care is a family member or a dependent for the employee, an employee is entitled to have the time off from work to care for those individuals in an emergency. However, there is no right for the employee to receive to pay during this time, unless the employee's contract of employment makes specific provision for it. Employees who have concerns in such circumstances are advised discuss matters with their employer and see if what options are open to them; the employer may agree to offer full pay or some pay given the extenuating circumstances, or the employee may be able to take the time off as annual leave to avoid missing out on any pay during this time.
3. What if my employer chooses to close the business in an attempt to contain the spread of Coronavirus?
An employer may ask employees to work from home if this is practicable, in which case employees would be at work as normal, albeit they will be working from home. Their pay will not be affected by this and employees would be expected to be paid in the usual way.
Where it is not possible for employees to work from home, but nevertheless employees are instructed not to attend for work by the employer, employees are entitled to full pay in the usual way (other than if the employer decides to place employees on short time working or impose a period of lay off because of a downturn in work, in which case, please see question 6 below).
4. If I contract Coronavirus and cannot work as a result, will I be entitled to receive pay?
Yes, you are entitled to receive sick pay in line with your employer's policies, which may be to pay their employees who are off sick either statutory sick pay ('SSP') only, or an enhanced rate of sick pay during the time you are off sick. Your contract of employment or your employer's sick pay policy should explain whether you are entitled to SSP or enhanced sick pay in cases of sickness absence. Employees can self-certify their absence for up to 7 days, and thereafter should obtain a 'fit note' from their GP confirming that they are unfit to work if their absence continues beyond this (however, ensure you follow any advice about attending your GP surgery if you have confirmed or suspected Coronavirus). Any sickness reporting requirements issued by your employer should always be followed, otherwise you risk not receiving the pay that you would otherwise be entitled to.
5. As an employee, I already have high absence levels for a long term medical condition. If I have to take more time off due to Coronavirus, could I be dismissed?
Employers have to be careful to ensure that any employee who is classed as a disabled person is not treated less favourably as a result of their disability. This could potentially include being dismissed on the grounds of their absence levels where the absence is a result of the disability, as this could amount to discrimination. A disabled person for the purposes of employment legislation is an employee who has a long term (lasting 12 months or more, or which is likely to last at least this long) physical or mental impairment which has a substantial and adverse impact on their ability to carry out normal day to day activities. This means that an employee who is dismissed as a result of disability-related absence could have a claim against their employer.
Furthermore, even for those employees who are not protected by disability legislation, the government's advice to self-isolate in the current circumstances is highly likely to be taken into account by a Tribunal if the employee was to be dismissed as a result of taking time off work for this reason. It seems highly unlikely therefore that dismissals would be likely to follow after an employee has taken time off for the purposes of self-isolation.
6. As an employer, what can I do if the Coronavirus outbreak causes a downturn in work?
Where the employer has the right to do so, they can impose either short time working or consider laying off staff where there is a temporary downturn in work. This could involve the employee remaining away from work on a short term basis or taking a period of unpaid time off where the employer does not have sufficient work to provide to the employee. There is no limit on the period of time that this could be imposed, but an employee can claim redundancy (and a redundancy payment) where they have been laid off for a period of 4 continuous weeks or 6 weeks within any 13 week period. There are guaranteed payments for an employee who is laid off or placed on short time working. There are a number of specific legal requirements and things to be aware of for any employer in considering this option, so we would recommend legal advice should always be taken before the employer embarks on this course of action.
7. As an employee or an employer, where can I find further advice and updates on the current situation about Coronavirus?
The ACAS guidance referred to above on the current situation concerning Coronavirus can be found here: https://www.acas.org.uk/coronavirus. This includes practical advice for employers, such as ensuring up to date contact and medical information is obtained from employees and recommends the provision of certain items to staff, such as hand sanitisers and facemasks, where appropriate.
For general information about the current situation on the Coronavirus and how this is affecting the UK, the government publishes information and daily updates here: https://www.gov.uk/guidance/coronavirus-covid-19-information-for-the-public. This includes helpful information on who should consider self-isolating, particularly for those people who have recently travelled to affected countries.
For further advice relating to any of the above issues or other aspects of employment law, please contact the Chattertons Employment Law team on 01522 814638.