Live: Legal advice on Covid-19 outbreak – GBLF

The team at Gordon Brown Law Firm (GBLF) has put together some useful advice on children and schools, pregnancy, statutory sick pay and short time working in relation to the mounting disruption caused by the Covid-19 outbreak

Children and schools

There is limited statutory provision for time off for employees who have to look after their children when schools, nurseries and other childcare providers are closed. Whether the government changes the position in light of recent developments is yet to be known, and something we will continue to monitor.

Currently, there is a statutory right to time off for caregivers, which provides a period of unpaid leave to take action necessary because of the unexpected disruption or termination of arrangements for the care of a dependant (‘dependency leave’).

This would cover time off to arrange alternative childcare in the event of a school closure, but it only lasts for a few days and does not cover extended time off for employees to look after their children themselves. A period of unpaid parental leave can be agreed, which can be extended for a period of 4 weeks.

Employers can consider alternative arrangements, such as agreeing to a period of paid or unpaid leave, but ultimately failure to attend work without permission would amount to a breach of contract and could lead to disciplinary action.

An employer could allow employees to take annual leave in this situation, as an alternative to unpaid leave, although employees may not have sufficient holiday entitlement to cover the absence or may be unwilling to use their holiday for this reason. Employers can require employees to take annual leave by giving them the required notice.

Where an employee is self-isolating, in accordance with Government advice, they will be entitled to statutory sick pay (SSP) even where they are not ill, and this entitlement to SSP will continue beyond the initial 7 days of self-isolation if the employee produces medical evidence, which will involve certification from NHS 111.

To be clear on the self-isolation, the 7-day period applies to those living on their own, it’s 14 days for those living with others.

A decision about self-isolation can be determined by carrying out a test through NHS 111.

Pregnancy

The current guidance from the UK Government is that all people should avoid unnecessary social contact, and take measures including working from home were possible and avoiding social venues.

The UK Government has stressed that this advice is particularly important for people over 70, and those with underlying health conditions, such as diabetes, and pregnant women.

However, the UK Government did not say that those individuals automatically should stay at home, although this may change.

At the present time, pregnant women and those with underlying conditions can make their own decisions as to whether they wish to remain working but will be entitled to statutory sick pay if they elect to stay at home.

The most important thing is to wash hands regularly and effectively. There is useful advice on the NHS website.

Statutory sick pay

The Government have advised that if an employee is displaying symptoms of the Coronavirus i.e. high temperature and/or persistent cough then they should self-isolate for a period of 7 days.

If they live with another person, the household should self-isolate for 14 days.

Statutory sick pay will be made available from day one (previously day 4) for anyone affected by the coronavirus when self-isolating.

For businesses with less than 250 employees, there is the ability to reclaim SSP costs for the first two weeks. Employees can self-certify for the first 7 days. Whilst it is usual to obtain a FIT note thereafter employers are urged to allow for discretion, in the case of self-isolation.

Employees can use the corona virus self-isolation advice link to produce a screenshot that they should self-isolate.

Short time working and lay off

Instead of taking the drastic step of making redundancies, employers may be able to use ‘lay off’, or ‘short time working’. However, the rules must be fully appreciated.

Lay off and short time working are methods employers can use when there is a temporary period of no, or a reduced amount of, work to do whilst maintaining the continuous employment of employees. Where work has ceased or reduced significantly for good, redundancies may be the only option.

‘Lay off’ means providing employees with no work for a full day.  ‘Short time working’ is where hours are still provided but these are less than normal.

Any employee can be selected for lay off as there is no obligation to apply selection criteria. However, the employer must be aware of any form of discrimination or detrimental treatment when choosing who to lay off or put on short time working.

A decision to lay off should therefore be made following a fair process of implementation i.e. consultation, warning and proper explanation, and an employer may benefit from applying selection criteria in order to avoid any suggestion that the decision amounted to a breach of the implied terms of mutual trust and confidence and entitled the employee to resign and claim constructive unfair dismissal.

In order to enforce lay off or short time working, you must have the express contractual right to do so. This means having wording within the contract to the effect that you may require employees to stay away from work or require that their hours of work are reduced. The clause should also reserve the right to reduce pay according to the reduction of work.

If there is no such right in the contract, you can attempt to agree with employees the introduction of the clause at the time to place them on lay off or short time in order to preserve their employment. However, this move may face some resistance.

An employee may claim a statutory redundancy payment if he is laid off or put on short time working for a specified number of weeks.

Share