As the impact of coronavirus seems to be spreading, we are getting further guidance from the Government on containing the virus, self-isolation and how the authorities are going to deal with an “epidemic”.
The likely effect of the spread of the virus and self-isolation of employees is sure to have a marked effect on business continuity and we are seeing various businesses put various different procedures and guidance in place in order to protect themselves and their employees. Examples include not shaking hands at business meetings, cancellation of group conferences, converting meetings in person to telephone meetings, encouraging staff to wash their hands for longer and more often, facilitating home working and also providing copious amounts of hand sanitisers at the office.
As the likelihood of disruption to business became an ever increasing risk, questions were being raised by many HR professionals about the treatment of employees who are away from work due to self-isolation, and importantly, what should they receive in terms of pay?
When an employee is away from the office ill, they are entitled to be paid statutory sick pay (SSP) at the very least. SSP usually becomes payable to the employee on the 4th day of absence and is payable for up to 28 weeks. The current rate of SSP is £94.25 per week. Historically this was a payment that employers could reclaim from the Government, but this has not been the case since April 2014, meaning SSP comes out of the employer’s pocket.
Employers must pay SSP as an absolute minimum, but they may also pay enhanced contractual sick pay. This may be a contractual entitlement for employees, and so it is always paid, in accordance with the rules of the scheme. Alternatively, you may operate it on a purely discretionary basis and you judge each case on a case by case basis before deciding whether to pay any enhancement over SSP.
Top tip 1 – If you have any sort of contractual enhanced sick pay scheme, check your employee’s contracts, your sick pay policy and your custom and practice of payment of the enhanced sick pay over the last few years. You need to get to grips with exactly your offering is.
The latest announcement from Downing Street is that employees who are self-isolating, should not have to endure 3 days without any pay (known as “waiting days” for SSP). Boris Johnson has announced that SSP will be payable to these employees from the first day of absence because they shouldn’t be punished for “doing the right thing”.
What does this mean? Well it amounts to an additional £40 to be paid for each employee who has to self-isolate in your business, and because you can't reclaim SSP from the Government, that is £40 straight from your businesses’ bottom line.
It doesn’t directly affect contractual enhanced sick pay, as this is something (if you do offer it) that you are doing over and above the minimum statutory requirements. However, many employer’s policies will be drafted along the lines of “If you qualify for SSP we may also pay you enhanced company sick pay…” Therefore, clearly the temporary changes to the entitlements of SSP, may well affect enhanced company sick pay, particularly if company sick pay is a contractual right. It is less likely to effect you if your enhanced company sick pay is paid on a discretionary basis, as you will be entitled to exercise your discretion and may therefore freely elect not to pay enhanced company sick pay in these circumstances. It is therefore important to check your staff handbook and contracts, if you do pay enhanced sick pay.
Your business should already have stipulations on the evidential requirements that you have for employees when they are off sick. This may include self-certification up to 7 days and a fit note thereafter. Arguably these evidential requirements still apply despite the extension of SSP, but it undoubtedly presents us with some issues. Primarily – will an employee be able to obtain a fit note for self-isolation? Will a GP prepare a fit note for these purposes at all? Even if they will in theory, will the employee be able to actually get their hands on that fit note if they are in self-isolation?
These are all issues that businesses will have to wrestle with. I think the reality is that the advice is the same as it often is in issues of HR and employment law – the key is being in meaningful contact with your employees, and keeping those lines of communication open. If you have an employee who needs to self-isolate, make sure that you are in telephone contact with them. This is not only imperative for the purposes of an employer’s piece of mind that the additional SSP is being genuinely paid to that employee, but also for business continuity purposes. You need to make sure that your self-isolating employee is being totally transparent with you about their work, so that you can get this covered if required.
Will this be the push that some employers need to facilitate more flexible and agile working? When faced with an employee not being in work at all due to self-isolation (along with additional pay being due to them), will typically traditional employers choose to widen the scope of workers who can complete their work at home? If so, it is important to ensure that you have the appropriate policies in place for information security and also homeworking. Maybe, there will be some positive changes to come out of this issue.
Employment Partner Emma Tice, comments:
"The recent announcements from Downing Street about coronavirus left HR staff wondering about what to pay their employees if they were away from work due to self-isolation. Now we have received the news that employees will be entitled to statutory sick pay from day one of their absence, rather than on day 4 after the usual 3 waiting days. This is likely to cost businesses a further £40 per employee who has to self-isolate, as statutory sick pay is payable directly from the employer, with no ability to be able to reclaim this"
Helen Snow, Senior Associate, adds:
"The Government’s move to remove its exclusion of eligibility for statutory sick pay for the first 3 days of absence is welcome financial support for employees who would otherwise be penalised for taking essential health precautions. It also provides further reassurance that Government thinking on its contingency planning is truly joined up, by removing the financial barriers that would surely act as a major disincentive for low paid staff to voluntarily self-isolate and therefore loose work/ pay. This measure will not of course help employees who are earning less than the Lower Earnings Limit (currently £118 per week) as many part-time or casual staff may not qualify for SSP in any event."
If you need any advice or assistance on the employment issues your business is presented with due to COVID 19, including the facilitation of self-isolation and home working, our Employment team would be delighted to assist you.