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Employers have a duty to ensure the health, safety and welfare of all their employees.
However, during the coronavirus (COVID-19) crisis it is difficult to know how to respond to the threat and support employees, especially if you are concerned about your company’s future and overheads.
Here are some of the key points you should be aware of.
- Working from home
- Sick Pay
- School closures
- Cyber-security and protection
- Reducing employee costs
- Supplementary jobs
The latest government advice regarding COVID-19 concerns:
- only going outside for food, health reasons or work
- staying 2 metres (6ft) away from other people ('social distancing')
- avoiding busy commuting times on public transport where travel is essential
- washing your hands as soon as you get home
It is important employers support their employees to abide by these measures, which means allowing them to work from home, wherever possible. When your employees are working from home, the employer is still responsible for the health and safety of employees, ensuring that employees have the right equipment to work safely and that managers are regularly contacting employees to ensure they do not feel isolated.
During this period of uncertainty, it is recommended that you regularly communicate with your employees, more than normal, to keep them updated on the business, government updates and particularly any changes to employee working patterns – layoff or short term working. For the latter communications, as much notice as possible should be given to employees.
The government will support businesses with fewer than 250 employees by reimbursing them for Statutory Sick Pay (SSP) for up to two weeks for those off work because of COVID-19. Points to note:
- Employees who have self-isolated because they are demonstrating symptoms of COVID-19 will be entitled to SSP and any additional sick pay, which is payable under their contract of employment.
- Employees who are part of the vulnerable group or are self-isolating because a member of their household has symptoms should be eligible for SSP.
- SSP is only payable if employees are incapable of work. However, employees who self-isolate because of advice from the NHS or government guidance, and are consequently unable to work, will be eligible for SSP. However, they may not be entitled to contractual sick pay (this may depend on the wording of the contract or be at the discretion of the employer).
- If an employee does display COVID-19 symptoms, the employer can communicate they have a confirmed case but must ensure they do not reveal the name of the individual.
- SSP is £94.25 per week for up to 28 weeks and will increase to £95.85 per week from 6 April 2020.
- Employees do not need a GP fit note but can get an isolation note from NHS 111.
- Employers will need to keep records of employee absences and payments.
Schools, childcare and educational settings have been closed for the foreseeable future, except for the children of critical workers.
This means that employers need to be flexible in how they support parents and adjust their expectations to allow employees to still meet the obligations of their role whilst caring for their children.
This includes, time off unpaid. Employees will have the right to take time off unpaid to look after their children. In normal circumstances, this is usually a couple of days, but under the current circumstances it is expected to be longer. Employers therefore may need to give employees extended leave, allow them to take paid holiday or work from home, if possible.
If your business is experiencing a downturn or your employees have less work to do, you can require them to take statutory annual leave. This can be for the whole of their annual leave entitlement due within the leave year, or just a select number of days. You will need to give your employees two days' notice for every day you require the employee to take off.
With more employees working from home, businesses need to be conscious of data breaches, especially those where employees are holding and processing confidential information. Employers should be putting in place processes and reminding their employees of potential risks to keep their data secure.
Enforced closures of businesses in the hospitality and leisure industry, non-essential shops being asked to shut down and the period of uncertainty we currently find ourselves in means many businesses are concerned about their overheads and surviving during a prolonged downturn.
The government has asked that employers stick by employees. However, if your business is struggling and you are considering reducing short-term employee costs, you have several options.
This option is really for a permanent downturn in business. If you are confident that a certain number of team members are not required on an ongoing basis, you should:
- Identify how many employees need to be laid off
- Create a selection pool of employees to be laid off
- Identify the criteria for assessment
- Go through the communication processes
It needs to be remembered that this process could be costly as it involves redundancy pay and payment for notice if the chosen team members have a longevity of service.
It also involves a written business case and at least one virtual meeting [more if the redundancies are compulsory] Please remember various notice periods and accrued holiday will be payable. The government is keen to avoid redundancies hence Furlough, so please bear that in mind. A lot will depend on whether you think you can trade through, and out of this, on the other side.
If you are considering short-term dismissals, for employees with less than two years' service and therefore have less employment rights. Please be aware of any discriminatory matters as that may result in a claim. We strongly recommend you get further advice if you are considering this option
If you have already laid off employees, it may be possible that you can re-designate them as furloughed workers, but this has not yet been confirmed. Businesses need to wait and see when more guidance is released.
The Coronavirus Job Retention Scheme has been set up to help employers cover the cost of wages for employees on temporary leave (furlough) because of the coronavirus.
The scheme will cover 80% of an employee's salary, up to a total of £2,500 a month, plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that wage.
You may be able to reduce your employee’s hours or put your employees on unpaid leave. However, to do this your contracts must contain an a ‘short-term working lay off’ clause.
- Reduced hours. If your employee contracts include a ‘short-time working lay off’ clause, this means you will be able to discuss with your employees the potential to invoke the clause and cut their hours to say three or four days a week. You would need to do this process carefully to ensure that there is no discrimination issue. You will also need to ensure that pay will not drop below the national minimum wage for the hours worked.
- Unpaid leave. Under the ‘short time working lay off’ clause you also have the right to lay staff off for up to four weeks on unpaid leave. However, there is a statutory compensation of £30 per day for five days that would need to be paid to your employees affected. It is also important to note that the employee may be entitled to claim a statutory redundancy payment (if they have been employed for more than two years and have been laid off for four weeks continuously or six weeks in total).
If you do not have a clause in your contracts, you are not entitled to lay employees off without pay, doing so would be a fundamental breach of contract, meaning that the employee could claim a guarantee payment, sue for the pay or resign and claim constructive dismissal.
Many employment contracts may prevent workers taking on extra work during a lay-off period or short-term working hours. However, because of the unprecedented circumstances employers may agree for employees to supplement their income as long as it does not compromise their existing work.
Please note, this is the advice as we currently understand it. We are still awaiting further guidelines and always advise businesses to take appropriate guidance before going ahead.
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