Business

Coronavirus and sick pay - some answers

Rachel Penny, a partner in Carson McDowell’s employment team, provides answers to questions employers may have in light of the increasing coronavirus risk.

Workers told to self-isolate due to coronavirus will receive sick pay from day one, the government has declared
Workers told to self-isolate due to coronavirus will receive sick pay from day one, the government has declared Workers told to self-isolate due to coronavirus will receive sick pay from day one, the government has declared

QUESTION: One of our employees has returned from an affected area and, on medical advice, is “selfisolating”at home. Do we have to pay her?

ANSWER: I’m assuming that this employee cannot work remotely from home for the duration of her selfisolation. There are conflicting messages about whether or not you have to pay the employee during selfisolation. The GB Secretary of State for Health (and readers should note that health is a devolved matter in NI) has taken the view that if the employee is following medical advice in self-isolating, then they are “sick” and should receive statutory sick pay (SSP). That is obviously correct for those who have symptoms, but the position is much less certain for those with no symptoms. (As a quick reminder, there are three “waiting days” before SSP becomes payable from the fourth day of absence onwards, and the current rate of SSP is £94.25 per week).

As of March 4, as part of its Covid-19 response, the Westminster government announced its plans to amend legislation so that SSP will be paid from day 1 of absence, without the three waiting days. Although social security benefits (like SSP) are devolved, we may well see our local politicians following suit in the coming days.

However, the Labour Relations Agency and its counterpart ACAS in GB published its view that there is no legal right to sick pay in cases of self-isolation where the employee is not sick, but that it would be “good practice” to pay it.

The confusion arises because to qualify for SSP, an employee has to be “incapacitated” and that is defined as being incapable of work by reason of a disease or bodily or mental disablement. So, if the employee has no symptoms and is simply self-isolating for the incubation period or while testing is

being completed, then arguably he or she is not “incapacitated”. However, there are also provisions in the SSP rules about “deemed incapacity” when an employee is under medical care and a medical practitioner states that for precautionary reasons, the employee should abstain from work. Our view is that, in many cases, the “deemed incapacity” rules mean that SSP is likely to be payable.

The deemed incapacity rules however, are not relevant in the context of enhanced employer sick pay. In order to assess an employer’s obligation to pay sick pay under those arrangements, you will need to check your contracts and policies.

Regardless of the precise legal position, employers are likely to come under some pressure to continue to pay employees who self-isolate, symptomatic or not. Otherwise they risk the employee saying: “I’m coming to work because I cannot afford to take two weeks off with no pay”. The employer is then left in the predicament of having to decide whether to try and force the employee to selfisolate. That is probably a form of suspension and the employer is likely to have to maintain pay for that period of time.

QUESTION: Another of our employees has returned from an affected area and has a cough. His co-workers are concerned about this but he is refusing to self-isolate. Can we force him to go home?

ANSWER: At the present time, the government’s view is that self-isolation is voluntary, and not mandatory. That of course, might change in the coming days and weeks.

However, setting aside the “official” stance on self-isolation, businesses should remember that under both Health and Safety at Work (NI) Order 1978 and the common law, they are responsible for protecting the health, safety and welfare of employees at work. It would therefore be sensible for employers to update any policies or guidance they have on hygiene standards, and to communicate that guidance to employees in the clearest possible terms.

If an employee is refusing to self-isolate, then there may be some provisions of his or her contract of employment by which the employer can compel him or her to go home. First, check what the contract says about the right to suspend an employee, and second, check if the contract has a “garden leave” provision. These clauses give the employer the contractual right in certain circumstances to send an employee home, but you will be required to pay them during those periods of suspension.

If the contracts do not give you this right, then there is a small risk that forcing the employee to go home might be a breach of his or her contract of employment. Our view is that, as Covid-19 spreads, this risk diminishes and / or is a risk that is worth taking.

You are essentially balancing the risk of a claim from one employee against the risk of multiple of other employees that through your failure to deal with the “refuser”, you have failed to protect the health and safety of others. If that “refuser” is actually carrying the virus and passes it to his co-workers, the employer could find itself liable. On that basis, our view is that it is a reasonable management instruction to require an employee to absent him or herself from the workplace in line with public health advice, and by failing to do so, could face disciplinary action.

In all of this, beware of the risks of discrimination claims. If you, for example compel those returning from Wuhan, China to self-isolate, but not those from northern Italy, you may risk allegations of indirect discrimination (that statistically you are compelling a greater proportion of those of Chinese origin than those of European origin to self-isolate).

QUESTION: If schools have to close due to Covid-19, and our staff have to take time off to look after their children, what then?

ANSWER: All employees have the statutory right under the Employment Rights (NI) Order 1996 to take a reasonable amount of time off work to care for their dependants, and this includes where there has been an unexpected disruption to the care arrangements of those dependants or where the dependent is ill or because of an incident at a child’s educational establishment.

However, there is no statutory right to pay during dependant leave. Whether you are contractually obligated to keep paying your employees for some or all of this time off will depend on your contracts and policies. It’s important that whatever way your business chooses to deal with pay for this type of leave, that you are being consistent about it.

This statutory framework is really only designed to cover relatively short periods of leave, to deal with the initial emergency and not as a substitute for longer term arrangements. But the wording in the legislation is that employees have the right to a “reasonable” amount of time off, and if Covid-19 continues to spread and presents a public health emergency, it may well be “reasonable” in those circumstances for employees to take a longer period of unpaid time off.

Parents of children aged under 18 also have the right to take up to a total 18 weeks’ parental leave for each child. That leave can be taken up to four weeks’ leave (per eligible child) per year. Parental leave is also unpaid. And of course, some employees may request to use paid annual leave to cover this type of eventuality.

QUESTION: We are following official guidance on business travel to affected areas however we have a couple of employees who are refusing to undertake any travel, even to unaffected areas. What can we do?

ANSWER: First, you should try and find out why the employee is taking that stance. For example, does this employee have an underlying health condition that might them more susceptible to Covid-19? According to Public Health Agency, those with compromised immunity systems might be at higher risk.

It might be that those employees have the benefit of protection under the Disability Discrimination Act 1995, in which case as employer you will need to consider making “reasonable adjustments” to those employees’ working arrangements, like curtailing travel arrangements. Even if the employee is not “disabled” for these purposes, all employers are under an obligation to protect the health, safety and welfare at work of their employees.

However, if there is no underlying medical condition, you have taken all other reasonable precautions and an employee is still refusing to travel, then ultimately you might consider warning that if the refusal persists, you will consider that to be a failure to follow a reasonable work instruction leading to disciplinary action.

QUESTION: Should we ask employees not to travel to affected areas even if that is a personal holiday?

ANSWER: It is very unlikely that you have any contractual right to dictate where employees cannot go during their own annual leave. At best, you might consider issuing guidance to employees and reminding them that insurance policies might be invalidated by travel to affected areas.

One step you could consider taking is to inform employees that if they travel to an affected area contrary to government advice, and become unwell, or require self-isolation on return, they will not be entitled to any discretionary enhanced sick pay under your company sick pay policies. But you will need to check your contracts and policies to make sure that you are able to withhold sick pay in

this way.