The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
If, as Einstein said, “the measure of intelligence is the ability to change”, then we are all being challenged, across the UK and in whatever role we play, to get cleverer and cleverer! In this our third Coronavirus briefing, we will address the latest employment developments and their implications for employers and employees.
Again, we would reiterate that all the information is correct at the time of going to print on 25 March 2020.
Changes to statutory sick pay (SSP) so far have meant that employees who are not symptomatic themselves but are self-isolating can claim SSP. Evidence of sickness is required after seven days of absence, and this is, of course, problematic where GP surgeries and hospitals cannot cope with the extra workload of signing fit notes and self-isolation precludes leaving the house. To address this, the Government has introduced self-isolation notes. This is an online service whereby employees can complete the relevant details, and a note is then sent confirming their name, DOB, reason for isolation and date from which the note is effective, which can be emailed or printed. For those employees who may not have access to a computer, a friend or someone else can carry it out on their behalf.
The first question asks the employee to confirm that they have taken advice from either the NHS website, NHS 111 or a health practitioner to self-isolate. Employees must then confirm that they:
- have symptoms and have accessed the 111 online coronavirus service; or
- have symptoms and have been advised by a healthcare professional to stay at home; or
- are living with someone who has the symptoms.
The guidance is clear in that these self-isolation notes should not be used where employees “feel well enough to work” and can work from home. They are only appropriate where an employee is incapable of work due to sickness or unable to attend work because of self-isolation and unable to work from home.
Clearly, these notes are reliant on a high level of trust from employees to complete the information accurately and truthfully.
ACTION – Ensure that HR departments have a procedure for collating these self-isolation forms to assist with gauging staffing levels
Looking after school-age children
This week will be the first week when some employees, other than those of front-line services, will have to navigate working and childcare responsibilities with the closure of schools, colleges and nurseries across the UK. There is clearly not going to be a “one-size-fits-all” model for dealing with each situation and employers are being encouraged to be as “pro-employee” as they can. We would advise the following;
- Be pragmatic and flexible – do not insist on employees having to complete the previous statutory process for requesting flexible working, be willing to address what will work to ensure an employee can, for the time being, continue to work; be that spreading hours over a longer period or working in a different way.
- Where an employee was not homeworking before the closure, address whether that is now possible, how that will work and whether their role comes within the Government’s definition of a key worker and if the employee can continue to attend work.
- Communication is key – HR should keep in contact with employees with caring responsibilities as situations will change and new options will need to be discussed.
- Offer employees a range of options; flexible working (as above), using up holiday allocation, using unpaid parental leave, reducing hours temporarily, etc.
Furloughed employees – the Coronavirus Job Retention Scheme
The provision the Government announced on Friday is still in its embryonic stages. We expect and hope for more meat on the bones in the coming days and weeks. Essentially, it is a way for employers to avoid making employees redundant when it is hoped that their jobs will return once the pandemic is over. The Government will then pay 80% of the wages of employees on Furlough leave (up to a cap of £2,500 per month). The Government have announced that this scheme will be in place for three months from 1 March 2020, although they have hinted it may remain for longer if it is needed. The employer can, of course, top this up so that the employee is not missing out on salary. However, as noted below, the employee cannot work during a period of furloughed leave. It will only apply where the employee would have otherwise been laid off.
Entitlement and selection
The employer will determine which employees would need to be laid off and contact them to request their consent. There appears to be no consultation period as there is for redundancy but merely an offer and then acceptance from employer and employee respectively. To qualify for the scheme, the employee cannot undertake any work once they are furloughed. Any work undertaken will break the scheme, it is unclear if, once broken, an employee can be put back on furlough again.
The scheme originally only protected employees. However, an amendment to the Coronavirus Bill compelling the Government to extend this scheme to self-employed has been made.It is likely that this amendment will be accepted. The amendment states that “freelancers” (no definition) and the self-employed should receive guaranteed earnings of 80% of their monthly net earnings over the last three years or £2,917 per month, whichever is lower. The issue for many freelancers or self-employed people may be whether, in not working for a period of furlough, in line with the regulations, they are prevented from having any online presence or keeping in touch with their client base so as to ensure it remains loyal when the current situation has passed.
ACTION – Assess whether this Government Scheme is something that will assist your business/organisation and if so, look to who will be selected. Follow Government guidelines and regulations as they are produced.
Internal processes such as disciplinary and grievance procedures will inevitably be ongoing even as much else changes in the workplace. Given the open-ended timeline for this pandemic, we would advise that these processes are not put on hold until the current crisis is over unless there is no other option. This may prove hard in view of interviewing witnesses and having various people inputting in a disciplinary or investigation meeting. That said, HR teams would be wise to be creative in addressing and resolving these problems, especially in the cases where an employee might be suspended on full pay.
ADVICE – Continue with ongoing processes in the best way available, be that telephone or video conferencing. We have no news as yet from ACAS regards changes to early conciliation periods so our advice would be to continue processes.
Social distancing and health and safety at work
Following the Government’s announcement on Monday (23 March), there has been some confusion as to whether employees are still allowed to leave the house to go to work. Conflicting messages via Twitter and written guidance has not helped bring clarity. At the time of writing, we understand that employees are permitted to leave their homes to attend work, but only if
- this work cannot be done at home; and
- employees observe the 2m social distancing guidelines whilst getting to work and at work.
In light of these heightened measures, we would advise employers to ensure they are regularly undertaking the following checks.
- Continue to assess whether employees can work from home; it may be that this is not possible in any way given the service they provide, however, regular assessments for other roles should be carried out.
- Employees are 2 metres away at work stations.
- Lunchtimes and/or break times are staggered where possible so that all employees are not congregating in communal areas at the same time.
- Check-in with employees regards public transport links and whether these are still working and what risks they bring to the employee.
- Address whether more employees in the workplace could use private transport means; this is especially key given pictures of overcrowded public transport as providers reduce the services. Be creative with solutions, whether this is giving them spaces in an organisation’s car park that would be reserved for employees who are now at home or subsidising car parking fees.
National Minimum Wage
The Government has issued guidance confirming that workers should still be paid at least the National Minimum Wage (NMW) and that workers have not given up that entitlement. Clearly, the Coronavirus Job Retention Scheme noted above could be implemented if an employer was not able to provide work. Additionally, the Government highlights the opportunity for employers to loan money or pay in advance of work to alleviate financial hardships. If this is the route taken, the Government advise that all arrangements be clearly documented with repayment amounts and scheduling. Also, if the repayment amounts are deducted from future wages, this will not reduce a worker’s pay for NMW purposes.
For more information
Please contact Libby Hubbard.
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