As the pandemic continues to spread, many employers are concerned regarding the impact of the Coronavirus (COVID-19) on their workforce and the smooth running of their business. In the UK there are now over 8,000 confirmed cases, and with guidance from the government continually being published, it is necessary for all employers to consider their obligations to their employees and how to deal with issues that arise.
PHE has currently advised self-isolation for the following groups of people:
In circumstances where employees are still attending business premises, if an employee falls into one of the above categories, an employer can reasonably request that the employee self-isolates for the specified time. Given these exceptional times, this would most likely be considered a reasonable management order. If an employee does not abide by this instruction, then this may result in disciplinary action. Specific advice should be taken before disciplinary action is taken, however.
Contrary to earlier guidance, PHE are no longer advising self-isolation for those returning from countries with a high incidence of COVID-19. However, it would still be advisable on a common-sense approach for the employer to require the employee to self-isolate if they have returned from a country with a high incidence of COVID-19.
1. Is an employee entitled to SSP if they are self-isolating?
Normally, in order to be eligible for SSP, an individual must:
Therefore, under the standard rules, there is a requirement for the employee to be “ill” and incapable of work as a result.
Regulation 2 of the Statutory Sick Pay (General) Regulations 1982 provided the definition of “persons deemed incapable of work.”
Regulation 2 has now been amended by the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020. This introduces a new provision which provides that a person is deemed incapable of work where they are: –
“isolating themselves from other people in such a manner as to prevent infection or contamination with coronavirus, in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales…and by reason of that isolation is unable to work.”
Therefore, SSP is now payable to those self-isolating and unable to work as a result of government guidance. There is no longer a strict requirement for the employee to be personally ill.
If however an employee is able to continue working, they would be entitled to full pay as per their contract.
Importantly, whilst the new lockdown guidance is applicable to everyone, this does not mean that everyone would now be entitled to statutory sick pay. The advice in relation to self-isolation and social distancing for vulnerable individuals is still the basis on which entitlement to statutory sick pay is determined, and is distinct from the recent lockdown guidance.
2. What happens if an employee decides to self-isolate but is not displaying symptoms?
Given the closure of many workplaces over the last couple of weeks, a majority of employees will probably be working from home anyway.
Following the amendment to the Statutory Sick Pay Regulations and the corresponding guidance, if an individual is living with someone who has symptoms, everyone in the household should be self-isolating for 14 days. Importantly therefore, an individual can be legitimately self-isolating without themselves having symptoms. If that individual is self-isolating and by reason of that self-isolation is unable to work, they would be entitled to statutory sick pay.
In line with guidance, an employer should carefully consider their approach in situations where an employee is pregnant or has a pre-existing health condition, as these have been classified as vulnerable and so should be staying at home. Individuals falling within the above categories should also be self-isolating, and therefore would be entitled to statutory sick pay if unable to work from home. However, there may be situations where a pregnant employee is entitled to full pay.
3. SSP or company sick pay?
The question of whether employees self-isolating in line with Government guidance should just be paid SSP or company sick pay will firstly depend on the wording of the contracts. Not all companies will provide company sick pay. For those that do, the wording of the clause should be examined. Commonly, company sick pay clauses will require the individual to be personally ill, and so would be at odds with recent Government guidance which no longer requires an individual to be personally ill.
The argument would be that entitlement to company sick pay is intended to follow and be the same as statutory sick pay, so if an employee was sick under the statutory rules they are also sick under the company rules. As the statutory rules have been amended, it can be argued that company sick pay rules are amended in line with such changes.
A contrary (and weaker) argument, is that the new rules only change the statutory sick pay rules, and the company sick pay rules are still governed by the contract which invariably requires the employee to be sick.
4. What about employees who need to take time off now schools are closed?
If the employee is able to work from home, the employer should discuss this with the employee. Employers should be open to arranging flexible systems of homeworking wherever possible with employees, to ensure that care responsibilities can also be facilitated in light of the recent school closures.
Some employees with younger children may not be able to work at all whilst also caring for their children, or they may be able to split childcare with another parent and so work part-time.
If flexible working won’t suit the employee, they may assert their right to time off to care for a dependant. Under the law, employees are entitled to take “reasonable” time off where “necessary.” However, any period of leave here would be unpaid, unless there is a contractual right to pay during such circumstances.
An employee may alternatively take unpaid parental leave if a child is under 18, but there are tighter restrictions on this and it would therefore be less likely in these circumstances. If possible therefore, a majority of employees will be trying to work flexibly wherever they can so they can still receive at least some pay.
5. Should staff on zero hours contracts etc be paid if they self-isolate?
If a worker engaged on a zero hours contract has been offered and accepted work, the same principles regarding pay will apply as for employees engaged on permanent full-time contracts of employment. For example, if the worker is self-isolating following government guidance, they will be entitled to sick pay in accordance with the contract.
However, if the employer has not made an offer of work, then there will be no obligation to pay the worker if they become unwell or self-isolate. The contract in place would most likely state that the company may offer work from time to time and is under no obligation to offer the work.
The government may publish further guidance for zero hours workers in due course.
If you would like specific advice regarding the Coronavirus, then please contact a member of the Employment team.
Our page “Coronavirus – legal tips and guidance” has other legal information for employers and businesses. This page is continually being updated as and when new guidance becomes available.