Paying your employees during the COVID-19 crisis: Need-to-know for employers

The COVID-19 global pandemic is being described as the worst crisis the world has seen in 100 years. These unprecedented times give rise to a plethora of questions for our clients and for most employers across the UK. SM&B’s employment team answers some of our clients’ most frequently asked questions on an employer’s obligations to pay employees during this crisis.

Q: Does an employer have to pay an employee who is self-isolating, even if they are not actually sick themselves?

A: If the employee is self-isolating in accordance with government guidance because they live with someone who has symptoms the employee is deemed sick and they will be entitled to Statutory Sick Pay (SSP) from day 1 (not day 3 of illness as is the normal practice). The entitlement to SSP applies if even the employee is asymptomatic. The government encourages employers to maintain good records of sick pay and while a GP note will not be necessary going forward, self-isolating employees, whether symptomatic or asymptomatic, should obtain a note from the NHS website.  If the employer has enhanced sick pay and the employee has a contractual entitlement to enhanced sick pay, then the employee will also be entitled to enhanced sick pay even if asymptomatic.

Q: What are the circumstances in which an employer will be acting reasonably in refusing to pay a self-isolating employee sick pay?

A: It may be reasonable to refuse sick pay to an employee who insists on self-isolating under the following conditions:

  • the employee does not have a GP or 111 note;
  • the employer has a reasonable belief that the individual is not a risk to the work environment and would not ordinarily be asking them to work from home; for instance, the employer has conducted a risk assessment or the employee is not in close enough proximity to other individuals while performing their work and can avoid public transit; and
  • the employee is not able to perform their job from home.

In such circumstances, we advise that the Company ask the employee to consider taking paid leave or unpaid leave. However, as the government’s advice on working from home gets firmer, this position may be more difficult to sustain.  Employers will have to consider each situation on a case by case basis and by prepared to adapt daily to the government guidance and advice.

Q: If an employer sends an employee home who it considers high risk due to age and/or health conditions is the employer obliged to pay full company sick pay, even though they may not be not ill?

A: If the Company is sending the employee home but they do not have or qualify for a 111/NHS self-isolation note, then they are not ill; it is the Company that is requiring them employee to stay away. In our view, the employee would be entitled to their normal pay under their contract of employment.

Q: How should an employer deal with the pay of employees who have children off school (meaning childcare responsibilities mean they are also unable to work)?

A: Our view is that unless and until the government produces some specific guidance on this issue, an employer should either allow the employee to work from home but if that is not practicable then the employer needs to have a conversation with the employee about using their paid holiday leave, having a brief period of paid or unpaid leave under family emergency policies or agreeing to a period of unpaid leave.

Q: If an employee requires a second period of self- isolation is the second period covered by SSP?

The basic position is that if an employee has the 111/NHS note they are eligible for SSP and enhanced company sick pay if provided for in their contract.  We have not yet encountered a situation of multiple periods of self-isolation for an employee.

Q: How do employers treat employees who may be ill for reasons other than the coronavirus; after an employee’s first period self-certification, they would normally need a GP certificate to be signed off for a further period of absence but given the NHS is consumed by the Coronavirus, can employers still require a GP certificate for absences unrelated to the virus?  

A: Employers should treat such circumstances as normal.  The employee needs a GP certificate to qualify for SSP or company enhanced sick pay. We understand that GP surgeries are dealing with such matters through telephone and video conferencing.

Q: If an employer has an enhanced company sick pay policy but it is discretionary, can it decide not to pay enhanced company sick pay during the Coronavirus crisis?

A: Discretionary policies can be changed as long as the discretion is not exercised capriciously and if sufficient notice is given to employees and any individual representations are listened to before the changed procedure is implemented.  Our advice to employers is to apply enhanced company sick pay policies with the same discretion they ordinarily would unless and until the company decides to change the policy and when that decision is taken, employees must be advised and consulted accordingly.

In summary:

 

Circumstance Does employer have to pay employee?
Employee asks to self-isolate with symptoms If they have a 111/NHS note confirming they are self-isolating in accordance with government guidance, they will receive SSP and company enhanced sick pay if contractually entitled.
Employee asks to self-isolate but is asymptomatic The entitlement to SSP/company enhanced sick pay applies if even the employee is asymptomatic, so long as they have the 111/NHS note confirming they are acting in accordance with government guidance.
Employee asks to self-isolate but does not have the 111/NHS note Employer can refuse to pay sick pay as long if the employee cannot work from home and the employer has a reasonable belief they do not pose a risk to the work environment and public health.
Employer asks employee to isolate who is vulnerable/health concerns If they are not ill and do not have a 111/NHS note, they will be entitled to their normal pay. If they can work from home, employer entitled to ask them to.
Employee who has childcare/dependent responsibilities Allow the employee to work from home and if not practicable seek to agree to using paid holiday leave, having a brief period of paid or unpaid leave under family emergency policies or agreeing to a period of unpaid leave.

The government has also announced legislation to allow small-and medium-sized businesses and employers to reclaim SSP paid for sickness absence due to the Coronavirus. The eligibility criteria for the scheme will be as follows:

  • the refund will cover up to 2 weeks’ SSP per eligible employee who has been off work because of COVID-19;
  • employers with fewer than 250 employees will be eligible – the size of an employer will be determined by the number of people they employed as of 28 February 2020; and
  • employers will be able to reclaim expenditure for any employee who has claimed SSP (according to the new eligibility criteria) as a result of COVID-19.

Further details on reclaiming SSP can be found here.

Should you have any further questions or require any assistance with your employment arrangements during this difficult period, please  contact either one of our Head Employment Partners Tamara Ludlow: tamara.ludlow@smab.co.uk or Ewan Keen: ewan.keen@smab.co.uk