Scrase Law Employment Solicitors

Coronavirus – absence, self-isolation and pay

If an employee is not able to attend work due to symptoms of Coronavirus or due to a requirement to self-isolate, what pay are they entitled to receive?  We have summarised the position in a number of different scenarios.

Absence with symptoms

What if an employee has symptoms of COVID 19?

Current Government guidance is that if an individual has symptoms of coronavirus, however mild, they must stay at home and self-isolate for at least 10 days from when their symptoms started.  They should arrange to have a test to see if they have COVID-19. 

“Symptoms” means a continuous cough, a high temperature, or a loss of or change in their normal sense of taste or smell.

If an employee has symptoms of COVID-19 and is sick, the normal sick leave provisions will apply.  An employee is usually able to self-certify for a period of 7 days and then required to provide a fit note. During the Coronavirus outbreak, employees can obtain an online isolation note for the absence in excess of 7 days.  The notes can be accessed through the NHS website and NHS111 online.  The notes will be emailed to the user or sent to a trusted family member or friend, or directly to the employer.   

Regulations are in force that temporarily suspend the rule that means Statutory Sick Pay (SSP) is not paid for the first 3 days of work (known as waiting days).  Therefore, employees who are staying at home because they have symptoms of coronavirus can receive SSP from day one, rather than day four.  This applies to absences from 13 March 2020. An employee’s entitlement to company sick pay will depend on the contract of employment or the sick pay policy.

Absence without symptoms

What if an employee does not have symptoms but is required to self-isolate?

It may be possible in those circumstances, depending on the nature of the role, for the employee to work from home.  If that is the case, the employee will be entitled to be paid in full.  However, that will not always be possible, depending on the nature of the role.

If working from home is not possible, an employee who does not have symptoms but is self-isolating in the following circumstances will be deemed incapable of work (under changes to regulations that have been made during the Coronavirus outbreak) and will therefore be entitled to SSP:

  • They have tested positive for COVID-19.  They are required to self-isolate for at least 10 days, starting from the day the test was taken.  If they develop symptoms during the isolation period, they must restart the 10-day isolation from the day they developed symptoms.
  • They live with other household members who have symptoms or who have had a positive test result for COVID-19.  They are required to self-isolate for 14 days from the day when the first person in the household became ill or from the day the person in the household’s test was taken. 
  • They have been advised through the NHS test and trace system that they have come into contact with someone who was, at the time, infected with COVID-19.  They must self-isolate for the duration specified in the notification.
  • They have been advised to self-isolate at home for a period of up to 14 days before their admission date to hospital for surgery or another hospital procedure.

Further details can be found in the Government’s guidance for employers.

Entitlement to company sick pay would depend on the terms of the contract of employment or sick pay policy.  The employee may not be entitled to company sick pay in a situation where they are not themselves sick.  However, given the relatively low rate of SSP, if an employer does not treat the period of self-isolation as sick leave for company sick pay purposes, this could lead to the practical issue that an employee may choose to come to work rather than lose any entitlement to pay and receive SSP only.  This could, in turn, present a risk to the health and safety of the rest of the workforce.    

From 28 September 2020, employees could be fined if they do not stay at home and self-isolate following a positive test result for COVID-19 or if they are contacted by NHS Test and Trace and instructed to self-isolate. Employers who force or allow staff to come to work when they should be self-isolating could also be fined.

What if an employer tells the employee not to come to work?

Where an employee is exhibiting symptoms, the employer should be entitled to treat the employee as on sick leave (see above). 

Where an employee is in a category of individuals who should self-isolate, the employee may be able to work from home.  If that is the case, the employee will be entitled to be paid in the normal way.  If remote working is not possible, the employee may be entitled to SSP (depending on the reason for the self-isolation).  Entitlement to company sick pay would depend on the terms of the sick pay policy.  The employee may not be entitled to company sick pay in a situation where they are not themselves sick.

However, there may be circumstances in which an employer tells an employee who has not been advised to self-isolate or who is not exhibiting symptoms not to attend work.    The employer may have reached this decision in particular circumstances in light of their legal obligation to protect the health, safety and welfare of the entire workforce. 

It may be possible in those circumstances, depending on the nature of the role, for the employee to work from home.  If that is the case, the employee will be entitled to be paid in full.  If remote working is not possible, our view is that employees will be entitled to be paid their full pay because the employee is capable of working but is being instructed not to do so by their employer.  An employee in those circumstances would not be entitled to SSP, because they are not unfit to work and they are not deemed incapable of work (see below).

However, employers may be considering the alternative of laying off employees or making them redundant.  In those circumstances, the Coronavirus Job Retention Scheme may still offer some help to employers.  Further details of the original furlough scheme can be found here and details of the new flexible furlough provisions from 1 July 2020 can be found here. The Job Retention Scheme will end on 31 October 2020. It will be replaced by the new Job Support Scheme, details of which can be found here.

What if an employee does not want to come to work due to fears of catching COVID-19?

This could depend on the reason for the employee’s concerns.  Employees may be concerned because they are in the vulnerable category, for example because they are over 70; or they have a pre-existing medical condition such as heart disease; or they are pregnant.   If an employee has a medical condition that could amount to a disability under the Equality Act, an employer may also have an obligation to make reasonable adjustments.

An employer should listen to any concerns raised by employees and take them into account.  If there are genuine concerns, it may be possible to put in place alternative practices.  Employees should be allowed to work from home where this is possible.  Where it is not possible, the employer will need to consider current Government guidance carefully and carry out a risk assessment before requiring the employee to come to work.   Where an employee has a disability under the Equality Act, a requirement on them to attend work, or a decision not to pay or to dismiss them, could lead to claims of disability discrimination.

If there are no underlying medical concerns, and the employer is complying with Government guidance on social distancing, it is possible that the employee’s refusal to continue working could be considered misconduct.  The employee would not be entitled to pay.  However, in these extremely unusual circumstances, if an employer is considering taking disciplinary action where an employee refuses to attend work due to fears over COVID-19, we recommend that legal advice is sought.  Dismissals for reasons relating to raising of health and safety concerns can in some circumstances give rise to claims of automatic unfair dismissal or whistleblowing.

Are employees who are shielding entitled to SSP?

Employees who were shielding (and unable to work from home) were previously deemed to be incapable of work and entitled to SSP (from 16 April 2020). 

However, the Government announced the easing of shielding provisions from 6 July.  From 1 August, clinically extremely vulnerable people are no longer advised to shield; and those who need to work and cannot do so from home will be able to return to work as long as their workplace is COVID secure, adhering to the guidance available.  Employees who were previously shielding will no longer be entitled to SSP if they do not attend work.

However, employees who were previously advised to shield are likely to have a condition that falls within the definition of disability under the Equality Act.  An employer will need to consider current Government guidance carefully and carry out a risk assessment before requiring the employee to come to work.   This should include seeking medical advice from the employee’s GP or Occupational Health.  Where an employee has a disability under the Equality Act, a requirement on them to attend work, or a decision not to pay or to dismiss them, could lead to claims of disability discrimination.

Are employees who are in the vulnerable category entitled to SSP?

Employees who are in the vulnerable category as identified in the social distancing guidance may be able to work from home. If that is the case, they are entitled to be paid in the normal way.

If they are not able to work from home, they are not entitled to SSP unless they have symptoms; or a member of their household has symptoms and they are self-isolating; or they have received a notification to self-isolate from NHS test and trace; or they are self-isolating before an operation (see above).

However, employees in the vulnerable category may have a disability under the Equality Act.  A requirement on them to attend work, or a decision not to pay or to dismiss them, could lead to claims of disability discrimination.  Employers should consider whether to seek medical advice from the employee’s GP or Occupational Health to clarify the potential risks and what adjustments, if any, should be made to assist the employee in continuing to work.

Statutory Sick Pay rebate scheme

Eligible small employers (with fewer than 250 employees on 28 February 2020) are able to claim reimbursement for SSP paid to employees in respect of the first 14 days of sickness related to COVID-19.  This has retrospective effect from 14 March 2020.  The online service for the SSP rebate scheme opened on 26 May 2020.  Further details are set out in the Government’s guidance here.

What special considerations apply to employees who are pregnant?

Employers have existing obligations which continue to apply during Coronavirus:

  • To assess the workplace risks to new or expectant mothers or their babies;
  • To alter the employee’s working conditions or hours of work to avoid any significant risk;
  • Where it is not reasonable to alter working conditions or hours, or this would not avoid the risk, to offer suitable alternative work on terms that are not “substantially less favourable”;
  • Where suitable alternative work is not available, or the employee reasonably refuses it, to suspend the employee on full pay.

What if an employee takes time off work to look after someone else?

Employees have a statutory right to reasonable time off for dependants.  The most likely situations involving COVID-19 in which this right may apply is where an employee has to:

  • Provide assistance if a dependant falls ill;
  • Make care arrangements for the provision of care for a dependant who is ill;
  • Deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependent.  This could include, for example, school closure.

However, this time off is unpaid unless the employer has a policy which entitles the employee to pay.

Employees may choose to request holiday during that period so as to preserve their pay.  Some roles may lend themselves to home working, but on a practical level, this may not be possible for parents of younger children who require constant attention. Employers may be able to offer flexibility on working hours, reducing work targets or increased flexibility on deadlines to help parents with their childcare responsibilities, for example as a result of school closures.

If the circumstances are such that the employee then has symptoms; or lives in a household with someone who has symptoms and are unable to work from home; or they have received a notification to self-isolate from NHS test and trace and are unable to work from home; or they are self-isolating before an operation, they will be entitled to SSP (see above).

Can we withhold company sick pay from an employee who has voluntarily travelled to a high-risk area and then has symptoms of COVID-19?

Probably not.  The employer’s sick pay policy is unlikely to give the employer the right to restrict sick pay entitlement in this way.  Attempts by an employer to restrict an individual’s personal right to travel to certain areas may also give rise to the risk of allegations of discrimination.

Using annual leave

Can holiday be used to cover a period of absence?

Employees who would be entitled to SSP or nil pay during a period of absence may decide that they wish to take annual leave as an alternative.  However, employees who are on sick leave cannot be compelled to take holiday by their employer during their absence. The normal principles on annual leave will apply. 

Can an employer require employees to take holiday?

Employers may decide in some circumstances to operate a compulsory shut down period in an attempt to reduce the risk to the workforce.  Employers can instruct employees who are not on sick leave to take holiday on particular dates, provided that the employees are given sufficient notice of the requirement.  The notice must be at least twice the length of the period of leave that the employee is being told to take, although this notice requirement can be varied in some circumstances. Employers should check whether the notice requirement has been varied by any contract, collective agreement or workforce agreement. 

Can employees carry forward their holiday?

Under the Working Time Regulations, the statutory minimum of 4 weeks’ holiday cannot be carried forward into future leave years.  The additional statutory holiday of 1.6 weeks can be carried forward if there is a relevant agreement.

However, new legislation was introduced with effect from 26 March 2020 which provides that an employee can carry forward their statutory minimum of 4 weeks if it was not reasonably practicable to take it in the leave year as a result of the effects of coronavirus.

The Government has published guidance on the issue of holiday entitlement and pay during Coronavirus.  The guidance sets out factors that could be taken into account when considering whether it is reasonably practicable to take holiday.  These include:

  • Whether the business has faced a significant increase in demand due to coronavirus that would reasonably require the worker to continue to be at work and cannot be met through alternative practical measures.
  • The extent to which the business’ workforce is disrupted by the coronavirus and the practical options available to the business to provide temporary cover of essential activities.
  • The health of the worker and how soon they need to take a period of rest and relaxation.
  • The length of time remaining in the worker’s leave year, to enable the worker to take holiday at a later date within the leave year.
  • The extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the coronavirus situation.
  • The ability of the remainder of the available workforce to provide cover for the worker going on leave.

However, the guidance goes on to state:  “Employers should do everything reasonably practicable to ensure that the worker is able to take as much of their leave as possible in the year to which it relates, and where leave is carried forward, it is best practice to give workers the opportunity to take holiday at the earliest practicable opportunity.”

In many cases, it will still be possible for employees to take their statutory holiday during the current leave year. 

Any holiday carried forward under the new regulations must be taken within the next two leave years.

Provision for carry forward of the statutory additional leave (1.6 weeks) is for agreement between the employer and the employee.  However, employers must allow an employee to take a minimum of 5.6 weeks’ holiday in any leave year.  If, due to particular circumstances as a result of Coronavirus, an employee is unable to take 5.6 weeks’ leave, the employer should consider putting in place an agreement allowing that employee to carry forward the additional 1.6 weeks in addition to the 4 weeks.  Failure to do so could result in a breach of the WTR.

Carry forward of any further contractual holiday entitlement is a matter for agreement between the employer and the employee.

We have set out further detail on the guidance, and in particular the interplay between holiday and furlough, here

30 September 2020

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©2020 SCRASE LAW LTD. THIS POST IS FOR GENERAL INFORMATION ONLY AND IS NOT ADVICE. YOU ARE RECOMMENDED TO SEEK COMPETENT PROFESSIONAL ADVICE BEFORE TAKING ANY ACTION ON THE BASIS OF THIS POST