Coronavirus – The impact on employment
In light of yesterday’s government announcement, that all schools will close to children (subject to certain exceptions) at the end of this week, practices will inevitably be wondering what is going to happen to their workforce.
It is going to boil down to individual employee circumstances and whether they will still be able to perform their jobs. Some will be able to if their partner or spouse is able to care for their children, or if they are able to share the care so each can still fulfil their job requirements. If employees are able to continue to perform their roles then they will continue to be entitled to their full pay. However, for some this will inevitably not be possible.
Practices should speak with their employees to find out their individual circumstances in order to then determine what, if any arrangements, can be agreed whereby employees are able to continue to perform their job, or at least part of it. Such arrangements will of course need to be sustainable for both parties.
It will likely be that arrangements will need to be trialled and kept under review as employers will not know how things will work in practice until they are in place, and for some, an arrangement that seemed like it would work, may end up not being manageable.
For some staff, they will need to care for their children and will not be able to perform their jobs as a result. In normal circumstances where childcare arrangements fall through an employee is entitled to reasonable unpaid time off for dependants. The term ‘reasonable’ is not defined in legislation but is generally understood to be one to two days. This is because the time off is there to enable employees to make alternative arrangements. However, these are clearly not ‘normal’ times and for a large proportion of parents there will be no alternative. Employers will therefore need to be flexible in terms of allowing the unpaid time off.
Leave for these purposes will be unpaid, unless there is a contractual right saying otherwise, or employers decide of their own accord to make certain payments and are in a position to do so.
The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 (the “Regulations”) have amended the definition of ‘persons deemed incapable of work’ for the purpose of statutory sick pay (“SSP”) entitlement to include those who self-isolate in accordance with public health guidance. The Regulations came into force on 13 March 2020.
The Regulations extended the definition to include an individual who is ‘isolating himself [or herself] from other people in such a manner as to prevent infection or contamination with coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales and effective on 12th March 2020; and [who] by reason of that isolation is unable to work’. This related to the initial government guidance announced on 12 March 2020 regarding self-isolation for those with symptoms for 7 days, but now also overs the announcement made on 16 March 2020 that if members of an individual’s household have symptoms, however mild, they should self-isolate for 14 days.
The regulations will be in force for a period of eight months but will be kept under review by the Secretary of State for Work and Pensions.
We also understand that the legislation that SSP will be available from the first day of sickness absence rather than the fourth has now been published and that this change is now in force. However, the actual wording of the legislation is not yet available for review.
In the Budget, the government indicated an intention to also extend SSP to those caring for those within the same household who are exhibiting symptoms of COVID-19, but this is not explicitly covered in the new regulations. The carer would only be covered by the new rules on deemed incapacity if the public health guidance also required them to self-isolate.
Concerns in relation to changing business needs
On a final point, if practices are affected by either a downturn in work in some sectors, and an influx and changing needs in others, this could end up affecting the amount or type of work they have for employees to carry out. In the event of a downturn in work practices may wish to deal with such unforeseen circumstances by laying off employees or putting them on short-time working. Employers will need to check whether they have the contractual right to do so and be aware of the statutory guarantee payments. Otherwise there will likely be a normal redundancy situation where there is a diminished requirement for employees to do work the usual considerations in relation to a fair consultation process and statutory redundancy entitlements will apply.
In terms of increased demand or changes to work type requirements, again practices will need to make changes to working arrangements and duties. If practices have employees’ consent they can implement whatever changes they like, subject to other regulatory controls and employee competence. In this situation it will be important to document the detail of any agreed changes in writing. Changes can also be enforced if they are reasonable management instructions but practices should be mindful of breaching trust and confidence if the changes move beyond this.
The impact of the coronavirus outbreak on the UK as a whole is yet to be seen but employers should keep an eye on government guidance as it is updated.