Mitigation & recovery

Mitigation

Employment Law

Employment Law and Covid-19

In this section, you'll find practical advice and guidelines that should be helpful to you as a tourism business employing staff.

What happens about pay in the following circumstances?

The employee/worker is entitled to sick leave, to Statutory Sick Pay and contractually agreed sick pay if any. The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations (Northern Ireland) 2020 provide for categories of people to be treated as incapable of work for the purposes of statutory sick pay (SSP). The Regulations provide that where a person is isolating themselves from others in accordance with advice on Coronavirus, they are deemed to be incapable of work. That guidance is published in digital form only:

www.publichealth.hscni.net/news/covid-19-coronavirus.

Employees/workers are entitled to self-certify, and during this emergency, employers are not able to insist on a fit-note from a doctor after 7 days.

Employers need to be clear whether staff are off sick, and unfit for work, whether the employee/worker is unable to work from home and is self-isolating, or whether the employee/worker is self-isolating but is able to work from home. In the latter case where they are fit to work the employee/worker will normally be entitled to full pay for work done.

The Government is taking powers to enforce quarantine. Clearly if a worker is legally required not to come in, the employer cannot insist on attendance or work, unless work from home is possible. In accordance with the SSP Regulations mentioned above at 1, SSP is payable in these circumstances. However, employees/workers may not be entitled to any contractual sick pay as they may not be sick.

In this situation then provided the worker qualifies they will be entitled to SSP, and any contractual sick pay. Many sick pay policies will include a requirement for the employee to obtain a fit note from a doctor. Employers must be sensible in relation to the need for medical evidence for a period of absence where an employee is advised to self-isolate due to suspected COVID-19. As such, employers should make exceptions to their usual sick pay policies.

There is a general duty to carry out a risk assessment for pregnant employees/workers. Clearly this assessment should be updated in light of Coronavirus and government advice should be followed. Current advice is that pregnant employees should so far as possible practice social distancing, working from home if practicable. In this situation the pregnant employee will be entitled to SSP and any contractual sick pay.

Where there is an additional risk at work due to coronavirus on top of that outside work, and where it is not possible to avoid exposure to risks at work, then pregnant employees/workers have a right to be offered suitable alternative employment (i.e. work that could be done from home).

Some people may be worried about catching Coronavirus and therefore be unwilling to come into work. If this is the case, you should listen carefully to the concerns of your staff member and, if possible, offer homeworking. The Government is advising all employers to encourage employees to work from home where possible. If employees can work from home, then that should be accommodated without question.

If you cannot accommodate homeworking, then your employees/workers can also request time off as holiday or unpaid leave but there is no obligation on employers to agree to this. If an employee/worker refuses to attend work, you are entitled to take disciplinary action. However, dismissal is likely to be outside the range of reasonable responses and therefore unfair, at least in the current circumstances. In addition, much may depend on the particular circumstances-for example if the employee has a pre-existing medical condition that would put them at particular risk which might also amount to a disability requiring reasonable adjustments. If the employee is not self-isolating for a reason as provided in government guidance but just does not want to come in, then they may not be entitled to pay or sick pay. However, the employer should give sympathetic consideration to the situation. It may be possible to use annual leave, or in some circumstances if qualifying, unpaid parental leave. A dismissal for refusal to come into work in current circumstances could well lead to a successful claim for unfair dismissal. Employers must act reasonably.

There have been periods of time during the pandemic when schools have been closed. In line with Government advice, all businesses and workplaces should encourage employees to work at home where possible. Where employees are able to work from home and have childcare responsibilities they may very well need some flexibility. They may not be able to work a traditional 9 -5 working pattern. Keep lines of communication open with employees in that situation and act reasonably. Guidance has also confirmed that employers may furlough employees (as outlined at 2 below) where they are unable to work because they have caring responsibilities (which includes care for children) as a result of the COVID-19 outbreak and so this should be considered.

What do we do if we have to make redundancies?

If redundancy does become necessary, then good practice should be followed to avoid unfair dismissal claims. It is anticipated that employers will be able to rely on these exceptional circumstances to avoid an unfair selection for redundancy claim however there are no guarantees. It is important to follow the statutory procedures and good practice.

Employers should consult with employee representatives where appropriate, particularly if involving 20 or more redundancies, to communicate with staff, send the appropriate letters, offer meetings (not face to face - perhaps over the telephone/skype etc.) and then give notice. See LRA Guidance on handling redundancies: -

https://www.lra.org.uk/resources/advisory-guide/advice-handling-redundancy

Can we amend the contracts of employment of our staff?

The terms of the individual contract should be reviewed as this may provide a process by which variations may be achieved.

Where substantial variations are being proposed to hours and or pay then staff would need to agree. Therefore, staff should be written to and their written consent to the variation should be sought. If consent is not forthcoming, then it may be possible to terminate the contract and re-engage employees under new contracts depending upon the variation involved. However, this may in reality constitute a potential redundancy situation and the employer would be required to pay notice pay and redundancy pay.

Do we have to pay staff if the business has to close?

If you decide to close permanently then you are required to comply with the redundancy provisions for staff. This would include notice pay and a redundancy payment. In many instances the employer may not be able to pay this and staff and employers will be seeking Government assistance.

How do we reduce the risk to our staff?

Government advice is that all employers should encourage homeworking where possible. Where feasible, businesses should shut offices and enable homeworking wherever possible. If you do require employees to attend the workplace then you should circulate an email/guidance requiring staff to be extra-vigilant with:

Washing their hands and using a sanitiser gel if soap and water are not available;
Using personal protective equipment where appropriate;
Using and disposing of tissues to catch a cough or sneeze;
Avoid touching eyes, nose and mouth with unwashed hands; and
Avoid close contact with anyone, where possible.

If they have the space, you should distance staff from each other as much as possible.

You should keep the situation under review and act in line with Government guidance.

Can we prevent staff from travelling for personal reasons?

In the absence of any contractual right it is unlikely that you can prohibit an employee/worker from deciding to travel - for example to look after a sick relative. You can point out that this may lead to a requirement that the staff member self-isolates on return.

Can we require staff to tell us if they are in a category of worker who should stay at home?

In light of updated Government advice, where possible employers should allow all employees to work from home. Employers may ask their staff about their health where this is necessary not only to protect the employee/worker’s health but also the health and safety of other staff. Therefore, it would be reasonable in our view to ask staff if they are in a category where the government has recommended that they should stay at home.

Can we ask people to stay at home and not come to work?

Much will depend upon the reason for the request to stay at home. You may ask people not to come in to work and you should indicate to them what will happen to their pay in these circumstances (see below). The first step will be to look at whether they can work from home in which case they should be paid as normal.

If you send staff home with no pay and without agreement of the contractual right to do so then you may be vulnerable to claims for unlawful deductions from wages, breach of contract and/or unfair constructive dismissal.

Can we ask people to work from home and what issues does that raise?

Government advice is that all employers should allow employees to work from home where possible. The individual contract may provide for working from home and if they can carry out work at home most workers will agree to do this in the current circumstances. In the absence of a contractual right or agreement, if a staff member refuses to work from home that may be a failure to comply with a reasonable work instruction and could lead to disciplinary action.

In the current circumstances however it would be highly unlikely that employees would resist the opportunity to work from home. A homeworking policy is advisable if you do not have one.

The employee/worker should be asked to confirm if they have any health and safety concerns about working from home and a discussion should occur to seek to resolve any issues if feasible.

See also the following websites for up to date advice

Contents

Contents

Employment Law and Covid-19

What happens about pay in the following circumstances?

a) Where the staff member is diagnosed with Coronavirus

b) Where the government has advised/told a category of worker not to come in.

c) Where a doctor has advised the employee that they should not be at work.

d) Where an employee is pregnant.

e) Where the employee/worker is scared, or is reluctant to come into work for reasons to do with their own health.

f) Where schools close and the person needs to care for their children

What do we do if we have to make redundancies?

Can we amend the contracts of employment of our staff?

Do we have to pay staff if the business has to close?

How do we reduce the risk to our staff?

Can we prevent staff from travelling for personal reasons?

Can we require staff to tell us if they are in a category of worker who should stay at home?

Can we ask people to stay at home and not come to work?

Can we ask people to work from home and what issues does that raise?

Operational Performance

Scams and Fraudulent Activity

Contents

Contents

Employment Law and Covid-19

What happens about pay in the following circumstances?

a) Where the staff member is diagnosed with Coronavirus

b) Where the government has advised/told a category of worker not to come in.

c) Where a doctor has advised the employee that they should not be at work.

d) Where an employee is pregnant.

e) Where the employee/worker is scared, or is reluctant to come into work for reasons to do with their own health.

f) Where schools close and the person needs to care for their children

What do we do if we have to make redundancies?

Can we amend the contracts of employment of our staff?

Do we have to pay staff if the business has to close?

How do we reduce the risk to our staff?

Can we prevent staff from travelling for personal reasons?

Can we require staff to tell us if they are in a category of worker who should stay at home?

Can we ask people to stay at home and not come to work?

Can we ask people to work from home and what issues does that raise?

Operational Performance

Scams and Fraudulent Activity

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