There are many employment-related questions arising from Coronavirus pandemic, and we have tried to answer some of these questions below. Should you require any further advice, or have a question that is not answered below, then please do not hesitate to get in touch with our specialist team.
How does sick pay work for my employees that are self isolating?
Those who are self-isolating because they or someone in their household are displaying symptoms of coronavirus will be eligible for Statutory Sick pay (SSP), or their contractual sick pay if applicable.
SSP is also available to those who are staying at home because they’re at high risk of severe illness from coronavirus (shielding). Shielding affects the following conditions (non-exhaustive);
- Solid organ transplant recipients.
- People with specific cancers:
- people with cancer who are undergoing active chemotherapy
- People with lung cancer who are undergoing radical radiotherapy
- People with cancers of the blood or bone marrow such as leukaemia, lymphoma or myeloma who are at any stage of treatment
- People having immunotherapy or other continuing antibody treatments for cancer
- People having other targeted cancer treatments which can affect the immune system, such as protein kinase inhibitors or PARP inhibitors
- People who have had bone marrow or stem cell transplants in the last 6 months, or who are still taking immunosuppression drugs
- People with severe respiratory conditions including all cystic fibrosis, severe asthma and severe chronic obstructive pulmonary (COPD).
- People with rare diseases and inborn errors of metabolism that significantly increase the risk of infections (such as Severe combined immunodeficiency (SCID), homozygous sickle cell).
- People on immunosuppression therapies sufficient to significantly increase risk of infection.
- Women who are pregnant with significant heart disease, congenital or acquired.
Ultimately, you should use your discretion and respect the medical need to self-isolate in making decisions about sick pay.
Anyone not eligible to receive sick pay, including those earning less than an average of £118 per week, some of those working in the gig economy, or self-employed people, are able to claim Universal Credit and/or contributory Employment and Support Allowance.
For those on a low income and already claiming Universal Credit, it is designed to automatically adjust depending on people’s earnings or other income. However, if someone needs money urgently they can apply for an advance through the journal in their Universal Credit account.Do I need to see evidence of illness/symptoms?
Do I need to see evidence of illness/symptoms?
By law, medical evidence is not required for the first 7 days of sickness. After 7 days, you as an employer are required to use your discretion around the need for medical evidence if an employee is staying at home.
We strongly suggest that employers use their discretion around the need for medical evidence for a period of absence where an employee is advised to stay at home either as they are unwell themselves, or live with someone who is, in accordance with the public health advice issued by the government.
What can an employer do if an employee refuses to attend work due to fears about coronavirus?
If it is possible for the employee to work from home, then this may resolve the issue. However, if this is not possible, the employer should take advice in the event that there is any potential discrimination issue that could arise. Otherwise, and if public health advice is such that the employee could reasonably be asked to continue to attend work then it is possible that the employee could be investigated for misconduct in terms of their refusal to follow a reasonable management instruction, and their unauthorised absence. If the absence is unauthorised then the employee would likely not be entitled to pay as they are not willing to attend work.
One of my employees has a dependent that requires to be looked after because they are sick/are off school. What is the best protocol?
Employees are entitled to time off work to help someone who depends on them (a ‘dependant’) in an unexpected event or emergency. This would apply to situations related to coronavirus (COVID-19). For example:
they have children they need to look after or arrange childcare for because
their school has closed
- to help their child or another dependant if they’re sick, or need to go into isolation or hospital
There’s no statutory right to pay for this time off, but some employers might offer pay depending on the contract or workplace policy.
I have furloughed staff and applied to the scheme. What next?
The minimum furlough period is three weeks. The scheme was initially set to run until the end of June, however on 29 May 2020, the Chancellor announced the following:
From 1 July 2020, furloughed employees will be able to return to work on a part-time basis. Employers will pay in full for days worked and can claim under the CJRS for days not worked, subject to the relevant caps.
Employers will not be required to contribute to employees 80% (capped at £2,500) furlough pay until 1 August 2020;
From August 2020 Employers will be required to pay the employer national insurance contributions and employer pension contributions on their employees’ furlough pay;
September 2020 – Employers will also be required to pay 10% of employees’ pay, capped at £312.50. The government will pay 70% of employees’ pay, capped at £2,187.50; and
This will rise in October 2020 to a requirement for Employers to pay 20% of their employees’ pay, capped at £625. The government will pay 60% of employees’ pay, capped at £1,875.
People who are placed on furlough leave must not work for you during the period of furlough (although from 1st July will be able to work on a part-time basis and be provided with “Furlough pay” for the days not worked).
Under the scheme furloughed workers will receive either 80% of their regular wage or £2,500 per month, whichever is lower (until September as set out above when employers will be required to contribute to this). You can choose to top up the employee’s salary above 80% but you are not obliged to. All of the monies paid by the government must be paid to the employee. You must not divert any part of the reclaimed grant, for example by deducting administration charges.
Regular payments of wages, variable PAYE wages, fees, and compulsory payments including commission and bonuses, are included when working out the 80% figure.
However, current government guidance has confirmed that payments at the discretion of the employer such as discretionary bonuses and commission payments are excluded. Tips, tronc shares, and non-cash payments such as health insurance or use of a company vehicle should be excluded as well.
This means that the following payments are included when working out the 80% share:
- Regular wages
- Variable PAYE wages
- Compulsory bonuses
- Compulsory commissions
While the following payments are excluded:
- Discretionary bonuses
- Discretionary commission
- Tronc shares
- Non-cash payments such as health insurance
- Use of a company vehicle
Those who furlough employees can also claim employers’ national insurance payments and minimum pension contributions (which will be the responsibility again of the employer to pay from August 2020).
For regular salaried employees, you should base calculations on actual salary before tax, as at 19 March 2020. For employees with variable pay employers can claim the higher of either:
- the same month’s earning from 2019; or
- average monthly earnings from the 2019-20 year
If an employee with variable pay has been employed for under a year employer can claim for an average of monthly earnings since they started work. For workers who only started part way through February 2020, the wage will have to be taken pro-rata.
The furloughed employees are unlikely to receive £2,500 exactly. Employees who earn under £3,125 a month will receive less than £2,500. This is because for those earning £3,125 a month, 80% of salary would be £2,500:
- Employees who earn less than £3,125 a month normally, will get 80% of their salary for three months (or more).
- Employees earning in excess £3,125 a month will have the £2,500 cap applied. These employees will receive less than 80% of their salary for those three months (or more) unless the employer chooses to supplement it.
- The £2,500 a month figure has presumably been chosen as it is broadly £30,000 a year which is the national median net salary.
Employers will receive a grant to cover part of the salaries of any employees who would otherwise have been dismissed. Employers do not have to pay this grant back. Employers must pay over the entire grant received to the furloughed employees, plus any top up payment they are choosing to pay.
I have put staff on furlough, how does their annual leave work?
If furloughed workers do not book any holiday time their statutory minimum holiday entitlement of 5.6 weeks per year will accrue while they are furloughed. The exact amount will vary depending on how much leave the employee has already taken. You can ask for employees to agree to any contractual (as opposed to statutory) holiday not to accrue during furlough.
Special provisions govern the current situation which means that workers can carry-over up to four weeks’ holiday into the next two holiday years. The interrelationship between leave and furlough is legally complex and has not been fully addressed in official guidance as yet, although the most recent employee’s guidance confirmed that employers have to top up pay to 100% for any employees who take annual leave during furlough. It is thought that employers can alternatively insist employees take holiday during the furlough, provided the appropriate notice is given but this is yet to be confirmed in guidance. In this situation employers would then have to pay the holiday pay in full and could claim for the 80% grant towards this.
Can I ask those furloughed to complete training?
If employees are required to complete any job-related training while they are on furlough leave (which is permitted as long as it doesn’t involve them in providing services to, or generating revenue for or on behalf of their organisation) they should be paid at least the National Minimum Wage rate. Similarly, apprentices should receive at least the National or Apprenticeship Minimum Wage or the National Living Wage.
What happens next?
With the daily updates there can be movement on advice and schemes everyday, therefore we would recommend reviewing the links below on a regular basis, as well as keeping up to date with the current news bulletins first and foremost. Should you have any further questions on any developments we would encourage you to contact one of our Employment Team for further advice.
General employer guidance – https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19
NHS Guidance – https://www.nhs.uk/conditions/coronavirus-covid-19/advice-for-travellers/
ACAS Guidance – https://www.acas.org.uk/coronavirus
If you have any questions regarding any of the information above please do not hesitate to contact our Employment Team:
Laura Macdonald – Senior Associate
Alan McCormack – Associate
Lorelle Doyle – Solicitor