March 20, 2020

As you can probably imagine, we have been dealing with a significant number of questions from clients over the past few days regarding the Coronavirus and it is likely this will continue to be the most important issue that all businesses face over the coming weeks and months. In particular, there’s no escaping from the fact that the recent change to the government guidance on self-isolation and social distancing will create significant challenges for everyone.

The Government has already published Guidance for employers and businesses along with Stay at home guidance and Guidance on social distancing. Further, ACAS has published additional Coronavirus: advice for employers and employees.

In an effort to provide as much assistance to our clients as we can, the following is a summary of the current legal position in relation to dealing with staff who are unable or reluctant to attend work or who ask or are required to work from home.

Sick Pay

The current position is that ‘employees’ (defined to include anyone whose earnings are liable for Class 1 NICs) who earn at least an average of £118 per week will be eligible to receive Statutory Sick Pay (‘SSP’) if they are unable to work due to illness for 4 or more days. From 13 March 2020, this is deemed to include employees who need to self-isolate because they:

• are suffering from Covid-19; or
• have Covid-19 symptoms (i.e. a new continuous cough and/or a high temperature); or
• live with someone who is suffering from Covid-19 or who starts displaying the symptoms; or
• have been advised by a medical professional or NHS 111 to self-isolate.

Under the current stay at home guidance, people are advised to self-isolate until the later of:-

• 7 days from the date when their symptoms started; or
• 14 days from the date when the first person in their household started displaying symptoms.

Employees will not be eligible to receive SSP if they choose to self-isolate outside the terms of the Government guidance. However, the Guidance for employers and businesses recommends that employees from defined vulnerable groups (e.g. pregnant women and anyone aged over 70 and/or who has certain underlying health conditions) should be strongly advised and supported to work from home if possible. If this is not possible, any employee within this group may have understandable reservations about coming into work, particularly if it means having to use public transport. Although such employees would not automatically qualify for SSP if they decide to self-isolate as a precautionary measure, employers would be well advised to assess any request to take sick leave on a case by case basis in order to avoid potential liability for discrimination and/or under the health and safety legislation. If in doubt, we would recommend that specific advice is sought in relation to any such requests.

The legal position in relation to entitlement to contractual sick pay over and above SSP for anyone who needs to self-isolate and is unable to work from home is currently unclear. However, it is expected that, in order to minimise the risk of anyone who should be self-isolating coming to work and potentially infecting others, many employers will take the view that anyone who self-isolates in these circumstances will still qualify for any contractual sick pay.

Anyone who is ‘ready, able and willing’ to work but who is asked to remain away from work as a precautionary measure even though they do not need to self-isolate under the government guidance will be entitled to continue receiving their usual pay.

As matters stand, self-employed people (i.e. anyone whose earnings are not liable for Class 1 NICs) and employees who earn less than £118 on average are not entitled to SSP. However, the government has recently announced that it intends to make it easier for such individuals to claim state benefits if they need to self-isolate.

Changes to Statutory Sick Pay

In order to try and address some of the immediate financial issues that individuals and businesses will face, the Government has announced that it intends to make several temporary changes to the SSP regime:

• SSP will be payable from day 1 (as opposed to day 4) of absence in respect of all Covid-19 related sickness absence (confirmation is awaited on whether this will also apply to other types of sickness absence). This will effectively increase the amount of sick pay someone will receive by about £40;
• Small employers (those with fewer than 250 employees) will reimbursed for any SSP paid to employees for the first 14 days of Covid-19 related sickness absence; and
• A notification from NHS 111 will be introduced as a temporary alternative to fit notes for those employees who are advised to self-isolate.

The above measures are not yet in force, but we expect them to be introduced over the coming weeks. We also expect significant further announcements from the Government in the coming days. This may include support for individuals who work on a freelance/self-employed basis.

Time off for dependants

The recent decision to close all schools, colleges and nurseries from tomorrow will inevitably present further difficulties for staff with children. While it would typically not be appropriate for an employee to work from home while providing childcare, if schools/nurseries do close it is likely that many employers will decide to adopt a more flexible approach and allow employees to balance their childcare responsibilities with working from home (assuming that homeworking can be accommodated).

Whilst employers are being encouraged to adopt a flexible approach, as the law currently stands, employees are technically only entitled to temporary unpaid leave from work to cover emergency situations involving their dependants. This would include leave for the purposes of:

• arranging care for children because their school has closed; or
• helping their children or another dependant if they are unwell or if they need to go into isolation or hospital (although an employee may need to self-isolate in these circumstance and therefore be entitled to SSP).

This type of leave is intended to continue for only a short period of time while longer-term arrangements are put in place to care for the dependant. As an alternative, employees could be given the option of using their annual leave entitlement if they need to take time off for childcare reasons.

Homeworking

The current Guidance for employers and businesses is that that staff should be encouraged to work from home where this is possible. This is likely to raise various practical and logistical issues for employers. At the very least, it is recommended that all employers consider the following:

• whether homeworking is feasible and, if so, what tasks can be performed from home and which tasks need to be performed at the workplace;
• if there is a genuine requirement for someone to come into the workplace (or attend an important face to face meeting), how employees who refuse to comply will be dealt with;
• what additional steps should be taken to ensure the health and safety of staff working from home (e.g. the provision if appropriate equipment and/or maintaining regular contact so that staff do not feel isolated); and
• how any confidentiality and data protection concerns that may arise from staff taking their work home and accessing work systems outside of the office can be mitigated.

If employers are not able to permit staff to work from home, it will be important to ensure that they take all reasonable precautions to ensure their safety at work, for example by providing hand washing facilities and hand sanitiser and ensuring that managers are aware of how to spot the symptoms of Covid-19 and what action to take in such circumstances.

The Off Payroll Working Rules

As we reported in the email update that we sent out last week, the Off Payroll Working rules were due to come into force on 6 April 2020. These rules will make medium and large private sector businesses responsible for IR35 tax compliance in relation to payments made to freelancers working via personal service companies.

The Government announced yesterday that, in light of the Covid-19 outbreak, the implementation of the Off Payroll Working rules would be delayed until 6 April 2021. This should at least provide businesses with a bit more breathing space to deal with other more pressing issues.

We realise that the next few months are going to be extremely challenging for our clients and we will endeavour to update you on any important developments as and when further guidance is issued or new regulations are introduced. In the meantime, please rest assured that we are here for you at this time and will respond to any queries you may have as quickly as we possibly can.