Covid–19: Employment Law Update – 31 March 2020

UK government: “Premature to put timeline on social distancing restrictions”

Yesterday, journalists pressed the government to confirm its view expressed over the weekend that social distancing restrictions could leaving many Britons working from home for as long as six months. The UK’s Chief Scientific Advisor said, “It’s important that we do this now to get the (infection curve) numbers below NHS capacity – that is the absolutely priority at the moment.” Sir Patrick Vallance added that once the government knows the infection curve is below NHS capacity, the government will then consider relaxing social distancing restrictions.

Statutory Sick Pay: definition of “incapable of work”

The newly published Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020 defines the circumstances in which a person is deemed “incapable of work”.  The circumstances include a person who has symptoms of coronavirus, however mild, and is staying at home for 7 days, beginning with day 1 of when the symptoms started.  Please contact our employment team for further information on the exhaustive list of circumstances in which a person is incapable of work under the regulations.

Relief for the self-employed: those “left behind”

In its report on the relief package announced by the UK government last week, the Institute of Fiscal Studies discusses how individuals who set up a business in the last year and did not file a 2018-19 tax return may not access government assistance, along with company directors who pay themselves mostly from dividends. See detail here.

Forcing employees to work during the pandemic – Sean Jones QC

Employment law barrister Sean Jones QC discusses on Twitter whether employers can force employees to work during the pandemic.  Among his points: it would not be reasonable to instruct an employee to attend work if they cannot travel to work safely and even where the workplace and travel is safe, the current crisis may create problems for those with stress or anxiety disorder-related disabilities that require reasonable adjustments.

Employers prepare for life after the crisis

The Guardian reports on a survey by the ‘Big Four’ accounting and auditing firm Ernst & Young.  E&Y surveyed company executives in some 45 countries about automating workforces in a post Coronavirus era.

Q&A: Carry-over of untaken leave allowed due to Coronavirus

As we told you in our post over the weekend, workers and employees will now be allowed to carry forward untaken statutory annual leave into the next holiday year if it was “not practicable” for their leave to be taken in the holiday year that their leave was due.  The relaxation of the rules on carrying over statutory annual leave are the result of amendments to the Working Time Regulations 1998.  Here, we answer some of our clients’ commons questions on what the changes mean for their businesses.

Q: What was the position on workers and employees carrying over annual leave before the Coronavirus crisis?

A: Most of a worker’s annual minimum statutory entitlement of 28 days holiday (including bank holidays) could not be carried over into the next holiday year, meaning workers would lose their holiday if they did not take it in the holiday year in which it is due.

Q: How has the position changed under the relaxation of the rules?

A: Where it is not “reasonably practicable” for a worker to take some or all of their statutory annual leave as a result of the effects of Coronavirus on the worker, the employer, or the wider economy or society, a worker can now carry over leave into the next two leave years.

Q: Will my company’s workers and employees be allowed to carry over annual leave?

Whilst the regulations are primarily aimed at key workers such as hospital workers and those working in the food supply chain, they extend to any employer whose operations have been impacted by the effects of the Coronavirus.   If your business would be short-staffed by workers and employees taking time off during the period of social distancing restrictions, the new regulations will likely be relevant to you.

The changes will apply to employees, workers including agency workers, those who work irregular hours, and workers on zero-hours contracts.

Q: How will the new regulations help my business?

Under the regulations, clients have an obligation to ensure that workers and employees take their statutory holiday entitlement in any one year and a failure to do so could result in a financial penalty.  The relaxation of the rules on carrying over annual leave may assist clients in meeting their legal obligations. Clients will not be under pressure to accommodate a large number of leave requests before the end of the holiday year.

Q: What does “reasonably practicable” mean?

A: The published government guidance does not define on what is meant by “where it is not ‘reasonably practicable’ for a worker to take their annual leave”.  In the absence of further specifics from the government, we are guided by the Employment Tribunals’ legal test of reasonably practicability which has generated extensive case law. As one example of such commentary, the Employment Appeal Tribunal held that the performance of an act is not reasonably practicable if “there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance.”  The EAT held that such impediments may be physical such as a postal strike, or illness of an individual.

Our advice to clients is it will be a question of fact in each case as to whether it is not reasonably practicable for a worker or employee to take their annual leave.

Q: What if I want to require my workers and employees to take annual leave during the Coronavirus?

A: While carry over is now permitted, clients can require their workers and employees to take statutory annual leave on specified dates.  However, it is important that clients give workers and employees adequate notice.  If the employment contract does not specifically state how much notice is to be provided, then the period of notice should be twice as much notice as the period of holiday leave that is to be taken.

Should you require any assistance with your employment arrangements during this difficult period, do not hesitate to contact the co-head partners of our employment department.  Ewan Keen can be reached at 020 3206 2724 or ewan.keen@smab.co.uk or Tamara Ludlow at 020 3206 2739 or tamara.ludlow@smab.co.uk.