June 2020

W orkers who are unwell should be at home. What if, however, an employer sends a worker home against their wishes? For Arwen Makin, a senior solicitor at esph, the right to pay depends upon the circumstances: “where the employee is able to continue to work from home then they will generally continue to be entitled to their normal rate of pay. If working from home is not possible, and an employee is suspended by their employer on health and safety grounds, it is likely that they will still have the right to continue to receive full pay.” The situation is murkier where an employer suspends due to official public health advice to self-isolate. Here Arwen said that if the employee falls within the category of people who have been advised by government guidance to self-isolate, then they will fall within the new deemed incapacity rules for SSP. An allied question is whether employers can make employees take holiday to cover absence. On this Arwen noted that “it is possible to require employees to take annual leave at nominated times provided that they are given the required level of notice.” Of course, employees can also take annual leave instead of being on SSP or nil pay. It’s also worth remembering that an employer imposing home working is technically varying a contract which requires employee consent. As Arwen noted though, “where an employee is faced with either being on SSP or nil pay as an alternative, they may well be willing to consent to working from home.” Sight shouldn’t be lost of the government’s advice for those considered vulnerable – those over 70, women who are pregnant, and those with an underlying health problem. People in this category should either work from home or vary their daily commute to use less public transport. Laying off staff The natural reaction when an employer is in trouble is to cut costs and lay off staff. But as Makin advises, employers should first “check if the contract contains a provision, which allows the employer to temporarily lay people off work (or reduce working hours).” She said that if there is a contractual right to lay off, then the employer should comply with the requirements of the provision. But before pulling the trigger, it should be noted that the government is to guarantee workers’ pay to 80% of £2,500 per month per employee. Again, the government has more detail on the subject which can be read at www.businesssupport.gov.uk/coronav irus-job-retention-scheme. The key is be operating PAYE and have staff that were on the books as of 19 March 2020. Next Arwen talked of employees with at least one month’s service. If they’re laid off, they may be entitled to claim a statutory guarantee payment (SGP) on up to five workless days in a three-month period. The current SGP maximum is £29 per day. If workers are laid off for longer, they can claim a redundancy payment from the business if it’s for four or more weeks in a row, six or more weeks in a 13-week period, where no more than three weeks are in a row. If there is no contractual right to lay staff off, Arwen said that an employer faces two main choices: “Either seek the agreement of the staff to a temporary lay-off or reduced hours; or seek the consent of the employees to change the contract to include a lay- off provision.” Here she said that the negotiation must be handled fairly and will require a consultation process and reasonable notice. She warned, however, that if there is no lay-off provision in the contract, “any lay-off without agreement, would be a fundamental breach of contract, an unlawful deduction of wages and could lead to various employment claims.” In summary There is no hyperbole in stating that Coronavirus has put employers and employees in very difficult situations where businesses are placed between a rock and a hard place. Employers shouldn’t act in haste, but with, instead, the benefit of knowledge. 12 AFTERMARKET JUNE 2020 BUSINESS www.aftermarketonline.net CORONAVIRUS – KEY INFORMATION FOR EMPLOYERS In the second of a two-part Coronavirus special feature, Adam Bernstein continues with advice about laying off staff BY Adam Bernstein PART TWO: