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Coronavirus: Tees Law answer employers’ legal questions on the global pandemic

At a time when everyone is struggling under the impact of the global coronavirus outbreak, many businesses are concerned with how they will stay afloat amid forced closures and plummeting demand. Meanwhile, employees are seeking information on the support measures available to help them pay their bills, and keep food on the table for their families, if they are unable or compelled not to work.

With schools now closed until further notice, separated parents may also be wondering what this means for any childcare arrangements that are in place, particularly if one or both co-parents are what has been termed a ‘key worker’.

Cambridge-based Tees’ expert employment and family law teams are on hand to provide the most up-to-date guidance on how businesses, individuals and families can access the support they need to see them through the crisis.

Rob Whitaker, of Tees Law
Rob Whitaker, of Tees Law

Here, Rob Whitaker, a partner and head of Tees’ employment law department, answers employers' questions...

What are the current guidelines around home working for employees, and are there other options available?

Current Government guidance is that employees should, where possible, be working from home so as to help limit the spread of the disease.

If working from home is not practicable, then unless there is a contractual right for lay off or short time working, these employees should normally be paid if they are otherwise available and ready to work,but are being requested not to attend by their employer. Each case will depend on the circumstances, however, and we recommend that employers seek advice on their particular situation and proposed approach. Employers may also wish to consider the new job retention scheme and 'furlough principles', and may be able to send staff home with the Government paying up to 80% of salary per employee, up to a threshold of £2500 per month. If parties work together on sustainable, temporary changes, this may help everyone to minimise compulsory redundancies or the risk of business closure.

Employers should keep employees updated on developments and the actions being taken. Depending on how the situation develops, an employer may well need to consult with staff about the situation, and may need to seek agreement regarding temporary pay reductions so as to avoid more severe actions being necessary (for example, redundancies).

Employers may also wish to consider asking employees to take annual leave or periods of unpaid leave in the event of forced closure.

The Government is continuing to announce measures and support, including reliefs and loans, to help affected businesses and those who have temporarily had to close.

What is furlough leave?

There is no specific statutory legal definition of the term 'furlough leave' in English law at the time of writing. It would appear to refer to situation whereby a temporary drop in work occurs due to the unique situation affecting the economy and business environment. Furlough leave will be an option for employers to consider where employees would otherwise be laid off.

Can staff be sent home and then claim furlough leave? What are my legal obligations?

We do not yet know for certain how the scheme will operate in terms of the legalities and HMRC's approach. The Government guidance is updated daily and should be considered carefully, but it appears that employers will be able to access Government support for employees who would otherwise be 'laid off' (i.e. there is now no work for these staff members).

How much does the Government scheme pay for furlough leave, and how do I make a claim?

Employers can designate employees as furloughed, i.e. that they have been sent home with no work to do or pay. They can then reclaim up to 80% of salary up to a maximum of £2500 pcm per employee. The Government has stated that once the scheme is up and running, salary can be claimed back to 1 March 2020 but guidance is awaited as to how the scheme will work and any conditions applicable. The Government guidance is being updated daily and any changes proposed by employers should ideally be expressed to be subject to change and review as appropriate

An online portal is being set up to claim via HMRC for employers.

If the business needs to make some employees redundant, does it need to go through the normal processes given the circumstances?

You should still follow a process (including meaningful consultation wherever possible) and, even with the new furlough rules, current employment law will still apply.

However, while the process of consultation may need to be adapted in the present unique circumstances, it should typically include considering alternatives to compulsory redundancy and inviting the employee to ask questions and make suggestions. Failure to do so could result in claims against your business, including for unfair dismissal.

Can the business ask people to take unpaid leave instead of making them redundant?

We recommend that businesses work alongside their employees to meet the present challenges and try to agree arrangements for working patterns where necessary, which might include taking periods of unpaid leave and/or using up untaken holiday. The new provisions on furlough leave may offer some alternative options to consider.

Each business will have its own particular challenges and circumstances to consider, and there are various steps to follow to guard against getting it wrong legally. That's why we recommend seeking legal advice before moving forward.

If you need to make staff redundant, this would normally depend on the terms of your employee contracts. There may be an express or implied right to lay staff off or place them on short time working, which might be triggered.

If staff are made redundant, what is the legal minimum I need to pay them?

That would depend on their age, length of service and the amount they are paid weekly. A week's pay is presently capped at £525; each employee is entitled to one week's pay for each year of service up to a maximum of 20 years, adjusted for age (0.5 per year for those aged under 21 and 1.5 for each year for those aged 41 and over).

Employers should also note that from 6 April 2020, the figure for 'a week's pay' will increase to £538 gross.

Do employers have to pay sick pay?

Employees who are unwell due to illness caused by coronavirus should be paid in accordance with the sick pay arrangements governed by the contract of employment.

The contract of employment may include contractual sick pay entitlements that are greater than the statutory sick pay (SSP) entitlement. Contractual sick payments are normally stated to be inclusive of any entitlement to SSP.

Employees who are not contractually entitled to sick pay may be entitled to SSP subject to eligibility. The Government has introduced emergency legislation so that SSP will be available from the first day of absence (rather than the fourth).

Employees may also become unwell due to anxiety caused by the coronavirus outbreak, which might render them unfit to work and therefore entitled to sick pay. In such circumstances, the employees' health situation should be managed and they should be paid in line with the employer's sickness policies as appropriate.

What happens if an employee is in self-isolation?

If a period of self-isolation becomes necessary, because of symptoms of coronavirus, they will be deemed 'incapable of work' and will be entitled to receive SSP (or payment in line with any applicable contractual sick pay entitlement) for a 14-day period.

SSP is presently payable from the first day of absence and is currently paid at the rate of £94.25 per week. From 6 April 2020, the SSP rate will increase slightly to £95.85. It is not available to employees earning less than the lower earnings limit (presently £118 per week).

Can employees request time off to care for dependants?

The Government has announced the temporary closure of all schools due to COVID-19, with the exception of some schools that remain open to care for the children of key workers and vulnerable children.

Employees have the right to take time off to care for their dependants, which includes situations where there has been an unexpected disruption to care arrangements for the dependant (for example, where there the dependant is ill).

An employee should inform their employer as soon as is reasonably practicable of the reason for their absence and, where they are able to inform their employer in advance of their absence, how long they expect to be absent for. However, this type of leave is typically intended to be short term. In the present circumstances, it is likely that what is considered 'reasonable' will extend over a longer period.

There is no statutory right to be paid during leave to care for dependants, and in most cases it is unlikely that an employee's contract will provide for pay in such circumstances.

What if an employee refuses to attend work due to fear of coronavirus?

Some employees may fear the risk of infection, and may therefore refuse to come into the workplace or travel into work.

It may be that disciplinary sanctions are appropriate for employees who are unreasonably refusing to attend work. Before acting, however, the employer should first ensure that they have clarified that appropriate disciplinary action could be taken in the case of any unreasonable refusal to attend work.

The employee's specific situation should also be investigated fully to gain an understanding of the reasons for their concerns. These investigations are important, as there may be real and genuine reasons why the employee may feel unable or unsafe to attend work. If the employee is pregnant or at a higher risk of infection, then the employer should take this into account when making their decision and, where appropriate, be more accommodating.

If an employee has a disability within the scope of the Equality Act 2010 which puts them at a higher risk of developing COVID-19, the employer may have a legal duty to make reasonable adjustments to the employee's working arrangements.

It is important for employers in this situation to act reasonably when disciplining staff; if they have not, then this could potentially result in employment claims being asserted against the employer. Legal advice should therefore be sought on each specific situation.

Pregnant employees

The employer is obliged to take steps to avoid risks to which pregnant employees may be exposed as a result of their work. If the identified risks, including those in connection with coronavirus, cannot be avoided, then pregnant employees must be offered suitable alternative employment on a temporary basis. Alternatively, pregnant employees may need to be suspended from work on full pay for as long as necessary. Depending on how long that continues, it may trigger the start of maternity leave.

Rob Whitaker is a partner and head of Tees’ employment law department. Rob can be contacted on 01279 710647 or at robert.whitaker@teeslaw.com.

Here at Tees, we are fully equipped to work from home and are ready to assist you throughout the COVID-19 situation. Our solicitors all have experience of flexible working and remain in regular contact through Skype, email, phone and regular conference calls. Likewise, we remain available for appointments via whichever contact method best suits you. We know our clients are worried and will have questions; we can provide the answers. Just call us on 0800 013 1165, or contact your usual Tees adviser either by phone or email. Visit www.teeslaw.com for more information.

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Tees Law

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