Post Termination Issues: What do employers need to consider?
Chris Dobbs looks at post termination issues, obligations and restrictions.
The following is general guidance which, to the best of our knowledge, is correct as at the time of publication. This constantly evolving area of law is being amended regularly. We will endeavor to update this guidance accordingly.
Click here to read our article on 'Update for Employers on Coronavirus School Closures'
Good Practice
ACAS guidance is to:
- Keep employees updated on steps being taken in the workplace to reduce risk of exposure
- Check emergency contact details are up to date for all staff
- Train management to spot the signs of coronavirus and ensure all staff are aware of internal procedures
- Make sure facilities are in place to allow regular hand-washing with soap and water, and encourage staff to do so
- Provide hand sanitiser and tissues for staff while encouraging their use
- Reconsider travel to affected areas
When To Self-Isolate
Employees should self-isolate if they:
- Develop the virus
- Have symptoms associated with the virus (a high temperature or a new persistent cough)
- Share a household with someone who has the symptoms
- Have been told to self-isolate by a doctor or the NHS 111 service
Everyone in a household where an individual has coronavirus-like symptoms must self-isolate for 14 days.
Employees should inform their employer as soon as possible of their absence explaining the reason and how long they are likely to be absent from work.
Absence Due to the Virus and Pay
- Employees who are told to stay at home by employers despite being able and willing to work are, in effect, being suspended and should therefore be paid as normal.
- Employees who work from home while self-isolating or due to workplace closure should be paid as normal. This includes employees who are trapped abroad; if they are able to work and do so they should be paid.
- Voluntary self-isolation (not in accordance with government advice) is more likely to be unpaid
- The required self-isolation of asymptomatic staff but who have, nonetheless, been advised to self-isolate is more problematic. They are not necessarily ‘sick’ but are deemed incapable of being at work. If an employer is instructing staff to follow government guidance then this is arguably a suspension on health grounds justifying full pay.
- Statutory Sick Pay following Regulations announced by the Chancellor on 11 March is payable to:
- - Individuals who have the virus
- - Individuals who have symptoms related to the virus
- - Individuals who have to self-isolate because someone in their home has symptoms of the virus
- - Individuals who have been told to self-isolate by NHS 111 or their GP
- There is no statutory right at this stage for paid time off to look after a third-party. Therefore parents or people caring for other dependent relatives can only request unpaid leave for an unexpected event or emergency. The amount of time has to be reasonable and it might be that additional time is allowed as part of their holiday allowance.
- Government advice issued on 12 March was that those self-isolating with minor symptoms should not call their GP or NHS 111. They will therefore not be able to provide evidence for the first week of absence. Employers cannot request evidence for this first week of absence.
- Regulations are anticipated which will allow SSP to be paid from the first day of absence.
- Company Sick Pay policies usually require medical evidence. Due to the above, employees may struggle to obtain this and we suggest employers are flexible in their policies for evidential requirements.
- The self-employed are not entitled to SSP and will not be entitled to receive payments from their contracting businesses if they are required to self-isolate or become ill from the virus
Workplace Closure
Current advice is that there is no need to close any workplace unless advised to do so by the relevant Public Health authority. If a workplace does have to close:
Home-Working
- Staff can be asked to work from home wherever possible and we would advise that companies start planning now for this eventuality and implementing home-working where possible
- Staff with laptops or mobile devices should be able to work quite easily from home on many tasks
- Paperwork tasks may be possible for staff who do not need access to a computer to do their job
Lay-Offs and Short-Time Working
Employment contracts for some businesses may contain lay-off provisions. Unless this is specifically set out in the contract, or is agreed on an individual basis, staff have a right to work and therefore must be paid for this time.
There are two separate provisions to look for: the right to lay-off or reduce hours and, separately, arrangements for pay in these circumstances.
If this looks like an option, employers should consult with staff before taking any steps. We strongly recommend employers take specific legal advice before implementing lay-offs or short-time working.
Using Holiday
Employers can require staff to use holidays at certain times. This is common practice where a business might close for a week at Christmas and staff are required to use one of their weeks at this time.
If a business does have to close to allow for ‘deep cleaning’, it is tempting to require staff to use this as holiday.
There are notice requirements, however; staff are entitled to be told in advance by at least twice the number of proposed days – i.e. a 5 day closure requires 10 days’ notice.
Staff could be asked if they will voluntarily use holiday during this time.
Coronavirus – Becoming Unwell in the Workplace
The ACAS guidance is clearest on here and so we have simply reproduced it:
If someone becomes unwell in the workplace with coronavirus symptoms, they should:
- get at least 2 metres (7 feet) away from other people
- go to a room or area behind a closed door, such as a sick bay or staff office
- avoid touching anything
- cough or sneeze into a tissue and put it in a bin, or if they do not have tissues, cough and sneeze into the crook of their elbow
- use a separate bathroom from others, if possible
The unwell person should either:
- use the NHS 111 online coronavirus service
- call 111, for NHS advice
- call 999, if they’re seriously ill or injured or their life is at risk
It’s best for the unwell person to use their own mobile phone or computer to access these services.
Future Planning
The next few months are inevitably going to be difficult for employers and employees alike. There is a lot of confusion and uncertainty about what might happen and the impact which the virus is likely to have on the market, businesses and the wider economy.
We strongly recommend that employers pay close attention to updated government advice and follow any specific guidance. We will endeavour to update this page as regularly as possible with changes to government advice, policy or legislation.
General advice is not a substitute for advice on your particular business or personal needs. If you would like to speak to one of our team about this or any other employment law issue please call 01202 499255 and the Employment team will be happy to discuss it with you.
