Alan Lewis talks to IOC ‘Covid-19 - the 15 points of employment in express courier’

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(Written Friday March 20th)

Alan Lewis was the last IOC round table keynote speaker; he is a partner at Constantine Law. He reminds us that events are moving rapidly with the Coronavirus.

He has put together an employment briefing for the IOC and he is updating next week with the Friday 80% payroll measures. The document can be accessed on the IOC web bubble for coronavirus information. We bring you the fifteen-point detail headings in summary below.



1. WHEN IS SSP PAYABLE? following an announcement in the Spring 2020 Budget, the SSP deemed incapacity rules have been extended and covers those: (a) who have coronavirus; (b) who have coronavirus symptoms; (c) who have someone in their house with coronavirus; (d) who self-isolate; or (e) who are social distancing in accordance with government guidelines.

2. FROM WHEN IS SSP PAYABLE? The Government has announced that it will bring forward emergency legislation temporarily making SSP payable from the first day of sickness absence. The government has also announced that small employers (with 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.

3. WHEN IS CONTRACTUAL SICK PAY PAYABLE? In principle, for all the circumstances when SSP might be payable. This means that (for eligible workers) contractual sick pay will be paid in the first instance, and then (after it is exhausted), SSP. Check the contract to see what is payable. There is no statutory right to contractual sick pay in the UK. Many employers run “discretionary” sick pay.

4. WHAT “SICK NOTES” DO WORKERS NEED TO PRODUCE? By law medical evidence is not required for the first 7 days of sickness. The government strongly suggest that employers currently use their discretion around the need for medical evidence. The Government has announced that a temporary alternative to the fit note will be introduced in the coming weeks which can be used for the duration of the COVID-19 outbreak. This system will enable

people who are advised to self-isolate to obtain a notification via NHS 111 which they can use as evidence for absence from work, where necessary.

5. CAN AN EMPLOYER SEND AN EMPLOYEE HOME TO SELF-ISOLATE? Yes (out of health & safety considerations and a duty of care to the workforce).

6. IF AN EMPLOYER CLOSES A SITE/OFFICE, WHAT PAY ARE EMPLOYEES ENTITLED TO? (a) Most of our clients (in services sectors) are paying a full rate of pay. Workers are logging on from home and working normally, as far as possible; (b) 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; (c) Some employers have short term “lay off” policies governing pay & conditions. Some employers will take this risk, anyway; (d) 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 losses. (e) If an employer suspends because an employee falls within the circumstances in which public health advice is to self-isolate then SSP or contractual sick pay may be payable.

7. WHAT ABOUT AN EMPLOYEE REFUSING TO ATTEND WORK OUT OF FEAR OF COVID-19? (a) If possible, try to set them up working from home; (b) If this is not possible, consider the current public health advice and whether it would be discriminatory to refuse home working; (c) Ultimately, refuse pay (technically the employee will be on unauthorised sickness absence) and consider disciplinary action. (The alternatives may be: unpaid leave, holiday, SSP).

8. WHAT ABOUT SOCIAL DISTANCING AND VULNERABLE WORKERS? On 16 March 2020, the government issued COVID-19: guidance on social distancing for everyone in the UK and protecting older people and vulnerable people which “strongly advises” certain categories of vulnerable employees to practice social distancing measures including working from home and avoiding public transport. Those categories are: Individuals aged over 70; Women who are pregnant; Individuals aged under 70 with an underlying health condition. To require these employees 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. It is not clear (as yet) whether these employees (who may be required to do social distancing for many months) are entitled to SSP or contractual sick pay. Further government guidance is anticipated. It is probably arguable that an employer who sends home one of these workers can pay them SSP (but not confirmed).

9. AT WHAT POINT SHOULD AN EMPLOYER CLOSE THE WORKPLACE? Current ACAS guidance is that if someone with COVID-19 comes into the workplace, it does not have to close. 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.

10. WHAT ABOUT CONTINGENT PAY ARRANGEMENTS E.G. SALES COMMISSION? This will be paid according to the terms of the contract of employment. In most cases, no sales=no commission. This may result in some financial hardship for certain employees and we recognise the employment relations issues caused.

11. WHAT ABOUT EMPLOYEES (OR FAMILY MEMBERS) WITH UNDERLYING HEALTH CONDITIONS? The Equality Act 2010 (“EQA”) continues to apply. This means: (a) certain employees may have a “qualifying disability” under the EQA; (b) if so, an employer will need to make “reasonable adjustments” (e.g. around working from home); (c) consider “associative discrimination” in respect of those employees with carer duties.

12. WHAT ABOUT EMPLOYEES ACTING IN BREACH OF GOVERNMENT OR EMPLOYER’S GUIDANCE? Employers may wish to reinforce government guidance and instruct employees not to go to the pub and/or abroad etc. Employers could then potentially take disciplinary action against employees who act in breach of this guidance (even on their own time).


13. WHAT ABOUT AGENCY WORKERS OR CASUAL EMPLOYEES BEING SENT HOME? (a) Speak to/negotiate with the agency; (b) generally most agency workers can be terminated “at will;” (c) occupational sick pay for agency workers is excluded from definition of “pay” under AWR. The agency is typically responsible for sick pay (and PAYE obligations).


14. WHAT IF SICK PAY (AND OTHER) SCHEMES NEED AMENDING? The normal rules around variation of contract apply: (a) seek consent; (b) if no consent, consider dismissal and reengagement; (c) unilateral imposition: but may lead to resignations and old contracts applying; (d) consider collective consultation where 20+ employees affected.


15. 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: (a) homeworking policies; (b) IT and data protection policies; (c) social media policies and (d) health & safety policies. Technically, employers should conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees, including homeworkers. Updated 19 March 2020