May 2020

I t’s remarkable to think that, without using hyperbole, something as small as a virus has stopped the global economy in its tracks. There are countless issues to be concerned with for businesses, but one that is vexing employers is what to do with staff? Don’t panic It’s easy to panic - but employers should keep a calm head. For Arwen Makin, a Senior Solicitor at esphr, good communication is key: “It is difficult in these unprecedented tim es to provide reassurance, but employees should be referred to official sources of information and told that the business is following the current government advice.” In particular, she points to a link - https://www.gov.uk/government/to pical-events/coronavirus-covid-19-uk- government-response - that should be sent to all employees. As the government has made clear, prevention is critical and so employees who are unwell, have a continuous cough and/or a high temperature should stay at home. For most people, COVID-19 will be a mild illness. Even so, the government updated its guidance on 17 March with detail on symptoms and self- isolation. Protecting the health and safety of workers Irrespective of the government’s guidelines – that we try to minimise infection risk – Arwen knows that businesses must prevent employees bringing coronavirus into the workplace: “It now appears that people can be infectious without symptoms so social distancing where possible is the current advice, and is sensible advice, because it will prevent employees becoming ill at once. The advice is clear in that if a worker displaying symptoms attends work, they should be immediately sent home to self-isolate – and as Arwen said, “this is a reasonable management instruction due to the employer’s duty to protect the health and safety of other employees.” Paying statutory sick pay (SSP) In general, Arwen said that SSP is payable if employees are incapacitated due to injury or illness or incapacitated despite being ‘capable’ of work because of necessary self-isolation. “The 2020 budget,” she added,” made changes to allow eligible workers to claim SSP from day one of absence; temporarily extended SSP to cover people caring for those within the same household who display coronavirus symptoms and have been told to self-isolate; and also said that businesses with fewer than 250 employees will be reimbursed for any SSP paid to employees in respect of the first 14 days of sickness related to COVID-19.” The detail is available at https://www.businesssupport.gov.uk /statutory-sick-pay-rebate/. The changes were radical, but they still beg the question of whether a business needs to pay statutory sick pay if a worker chooses to self- isolate? For Arwen the answer is clear: “a worker who chooses to self-isolate where none of the requirements are met is not entitled to statutory or contractual sick pay.” One solution, she did recommend, is allowing an employee to work from home if the role permits it. “But,” she added, “employers should consider whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of the employee's refusal.” And this is more of a problem if a worker has a (disability) health condition that puts them at higher risk of serious illness or death if they contract COVID- 19 as discrimination claims could follow. But if there is no disability, and the public health advice is such that the employee could reasonably be asked to continue to attend work, then the absence would be unauthorised and disciplinary action could follow. Further, as Arwen noted, “the employee would likely not be entitled to pay.” Lastly, there is also an elephant in the room – contractual sick pay. Arwen’s advice here is to look at the precise wording of the contract. She said: “It is tempting for employers to regard a non-symptomatic worker in self-isolation as not ‘actually sick’ and only pay SSP. However, it is very difficult to argue that a worker is not entitled because they are not symptomatic, in circumstances where SSP regulations ‘deem’ them to be ‘incapacitated’.” 12 AFTERMARKET MAY 2020 BUSINESS www.aftermarketonline.net CORONAVIRUS – KEY INFORMATION FOR EMPLOYERS In a special two-part feature, Adam Bernstein looks at the law and options open to employers around COVID-19 BY Adam Bernstein Next month: Sending workers home and laying-off staff PART ONE: