We have been working closely with our clients and whilst every client situation is unique a number of questions are regularly asked. Donal Laverty answers the Top 8:
1: Employers have to pay employees who are on sick leave and have been diagnosed with Covid-19. Do they have to pay employees who are off sick with Covid-19 symptoms but have not been diagnosed, and those who have no symptoms but need to self-isolate for other Covid-19 related reasons?
Answer: Yes. If an employee has symptoms which mean they are too sick to either come into work, or too unwell to even work at home, then that employee is entitled to the employer’s usual sick leave and pay provisions including statutory sick pay. The statutory sick pay three-day waiting period has been temporarily removed for Covid-19 related absences, and this legislation is backdated to 13 March 2020. If an employee has not tested positive for the virus, does not have symptoms, and is self-isolating in accordance with public health guidance to prevent the spread of the virus and is unable to work by reason of isolation, the same rules apply as if they themselves were sick so that employee is entitled to the usual sick leave and pay provisions of their employer.
2: Now that the schools are closed, do we have to allow employees to work from home if a dependent needs care?
Answer: This really shouldn’t be an issue – Everyone must now stay at home unless physically attending work is absolutely essential. With that in mind, the vast majority of parents and guardians will already be working from home and able to provide childcare. This is especially true now all shops except those supplying basic necessities such as food and medicine, entertainment venues, restaurants, hotels etc have been forced to close. Those who do still need to go to a workplace because they are key workers can still send their children to school so the childcare requirements should be no greater than usual. In situations where an individual cannot work from home but needs to stay home to look after a child (for example, if the child becomes sick with Covid-19 and cannot go to school), that employee is entitled to the usual sick leave and pay provisions of their employer because they themselves would need to self-isolate (see above).
3: If an employee is stuck abroad and unable to get home, will the employer have to pay them anyway?
Answer: Not necessarily. If the employee can work remotely from abroad they should do so, and they will be entitled to all their usual pay and benefits just as if they were physically in the office. If an employee is fit for work but cannot work because they are stuck abroad, there is no legal entitlement to pay unless an employment contract or policy explicitly grants this right to the employee. However, it would be best practice for an employer to discuss other options with the employee (such as discussing whether the employee would take extra paid holiday) to maintain good employee-employer relations. If the employee is stuck abroad because the employer sent them on the trip in the first place, the employee will have a reasonable expectation of payment. In those circumstances, even though there may be no legal requirement for the employer to continue paying the individual, it is likely to be very harmful to the employee-employer relationship and could have a negative reputational impact for the employer if the employer were to refuse payment to the employee.
4: If an employer has to, or chooses to, close the workplace entirely, do employees still have to be paid?
Answer: Yes, except in the case of laying off. If an employer decides to close the workplace for a temporary period they will usually need to keep paying their employees. Most of the time this won’t be an issue as employees can continue to work from home. However, if they cannot work from home, employees must still be paid because they are willing and able to work but the employer is not providing them with that option.
Having said that, if there is a laying off situation (i.e. employees are provided with no work or pay for a period of time) and the employment contract allows for laying off then the employer will not have to pay the employee. If the employment contract does not provide for lay-off, then the employer needs to consult with the employee to proceed to this status. The Government’s Coronavirus Retention Scheme provides employers with the option to ‘furlough’ employees – this option should be explored to access the 80% funding of wages guaranteed by the scheme.
Some employers are making redundancies but that is not always necessary. The are other options which can work for both businesses and their employees while we get through this period of uncertainty. Employers should look for other options than redundancy in the period.
5: Can an employer force an employee to take their holiday allowance?
Answer: Potentially. Firstly, both parties should check the employment contract which may well have provisions for this. Whatever has been agreed in the contract stands. If the contract is silent on enforced holiday allowance or if it is unclear, the employer is able to require the employee to take their holiday allowance as long as they give the employee notice which is twice as long as the forced holiday period.
6: Can employees cancel their pre-approved holiday request?
Answer: In general, yes. Usually pre-approved holiday can only be cancelled if the employer agrees. Most employees are likely to want to keep their employees working to help lessen the impact of Covid-19 on their business, so in reality it is likely that employers will agree. If, however, the employer does not consent to cancelling the employee’s holiday then the holiday will stand. The exception is if the employee is sick in which case the employee has the right to postpone their holiday. Unless the employment contract states otherwise, the employee can only carry forward their four-week holiday entitlement from one holiday year into the next if it is unused due to sickness. On 27 March, the government announced changes that workers in GB who have not taken all of their statutory annual leave entitlement due to COVID-19 will now be able to carry it over into the next 2 leave years. Whilst this change doesn’t yet apply to NI workers, we fully expect that it will and as such will require additional flexibility on behalf of employers in facilitating these new guidelines (click here).
7: Can an employer delay the start date of a new joiner or withdraw the offer?
Answer: Yes. The current situation is unprecedented, and due to pressure on both the employer and new joiner it may well be possible to negotiate a new start date with the new joiner which should be the first avenue pursued. Where this is the case the employer should confirm the new date to the new joiner in writing. If it is not possible to agree a new start date, for example because the new joiner will not agree to this, an employer can withdraw the job offer if the new joiner has not already accepted the offer or terminate the contract. If it is necessary to terminate the contract, the contract and offer letter should be checked for any agreed notice period. There may be an option for an employer to terminate the contract before the new joiner is due to start by making a payment in lieu of notice. As the employer is only bound to pay notice for the period when the employee was due to be working and receiving pay, it is possible that the new joiner may be given notice which expires before the new joiner was due to start so no actual payment is paid. Failure to terminate the contract properly and in accordance with the law could lead to a breach of contract claim.
8: Can an employer rotate employees who are placed on furlough leave to avoid ending up with one group of employees disgruntled because they have had to come into work and another group who do not have to come to work but are disgruntled by their reduced earnings.
Answer: The new guidance contains no definitive statement but the answer appears to be yes, although employers cannot place employees on furlough leave for less than three weeks at a time. Therefore, for example, rotating employees on a week-on/week-off basis is not an option, but month by month should be. Obviously, employers need to ensure they do not discriminate when selecting employees to be furloughed. Employers should also make it clear the basis on which employees are being furloughed and when they can be required to return to work/ be taken off furlough.
If you have any queries or need more information please contact Donal Laverty firstname.lastname@example.org