What are the rules about self-isolation and pay?

Sick pay for self-isolation

Staff must be paid at least Statutory Sick Pay (SSP) if they cannot work because they’re self-isolating for any of the following reasons:

• they have coronavirus (COVID-19) symptoms or have tested positive
• they are not fully vaccinated and someone in their household has symptoms or has tested positive
• they are told to self-isolate by an NHS test and trace service
• they have been advised by their doctor to stay at home before going into hospital for surgery

To be eligible for SSP, they must be off work for at least 4 days in a row, including any of their usual non-working days.

They’re entitled to be paid at least SSP for every day they’re off work. This is different to the usual rules for SSP where the first 3 days are unpaid waiting days.

Pay for self-isolating or quarantine after travel

Employees are not entitled to Statutory Sick Pay (SSP) if they’re in self-isolation or in quarantine after travel abroad in circumstances where they cannot work from home. But the employer could choose to make up their pay if they wanted to.

Changes to employment terms and conditions

In normal circumstances it is not possible for the employer to make changes to the employment arrangements without a) a contractual clause providing for changes or b) the consent and agreement of both parties.   Sometimes a working arrangement changes and nothing is written down or recorded about the change. The written particulars of employment are important. If there is a conflict arising from what the contract requires the written terms will normally prevail. However, there is a long-established situation called “custom and practice”. It is possible for something that is done regularly and consistently over time, that is notorious (i.e. known to all) to be incorporated into a contract.    There is much said about “hybrid working” and some academics and employers have stated that work will never be the same again. One survey report identified that circa 40% of employees will leave their current employment if they are unable to work remotely. Other labour market reports warn of significant churn in the employment market with employees stating an intention to leave their current workplace. The bigger debate around this is outside the scope of this article.   There is no single solution for ALL employers here. Some work lends itself to homeworking and variable hour working and other work does not. Most job roles have multifaceted elements to them meaning individual job roles are more blended and incorporate technology tools more than even 5 years ago.   We advocate discussion and an alignment of expectations. Flexibility has the potential for benefits and performance improvement. The other side of the coin is managing remote working is challenging and people benefit from meeting for working collaboration and also social interaction. It’s all too easy to say well let’s have the best of both worlds and mix it up a little.   We suggest when exploring flexible working, keep an eye on any core irreducible minimum involvement in office attendance, in person meetings, client service delivery and inter-employee / intradepartmental collaboration. A further period of temporary working and review could help all concerned arrive at the best working solution. Define what the new working relationship looks like in specific terms.   Your new agreement working agreement will be either a temporary conditional change subject to review of a permanent change to terms and conditions. So, write this down and record it as an amendment to terms and conditions of employment.   I opened with changes to the employment contract requiring consent and agreement. There is an exception to this. An employer may be faced to a compelling reason to reorganise the workforce in response to new ways or methods of working. Faced with reduced demand, a business may be compelled to “fire and rehire”. This term surprises many people and suggests that employment contracts can be torn up at will.   This process involves consulting with employees and serving notice of termination for the current job and offering new work on different terms of engagement. The strategy is not without risk, if the employee doesn’t want to work on less favourable terms, they may decide to claim they have been unfairly dismissed, even start under the new terms and bring a claim against the employer for the loss of the first job.   Generally speaking, if the majority of the workers agree to be engaged on new terms, rather than have no job at all, this points towards a reasonable and fair process. Should a group of employees be retained in employment, perhaps on reduced hours, rather than being made redundant this process may serve a useful purpose. The employer in this process is not selecting those to retain but applying equally the arrangement to the whole group of employees.   The government has commissioned a report from ACAS on the ‘fire and rehire’ practice to consider if the process is being abused. The practice has been open to employers for years. The conclusion is that there is nothing in the report to recommend any legal reform. Perhaps the timing of this report is unhelpful as in reality the furlough scheme has mitigated the use of the strategy from March 2020. Before the announcement of a ‘furlough scheme’ at half past five on a Friday afternoon, fire and rehire was perhaps the only available alternative for many businesses. From the end of September 2021 this may well be the only option available together with compulsory redundancies.   Key Action Point The end of the Job Retention Scheme may well lead to a need for employment contracts to be varied by a written agreement to reflect working hours, the place or places of work and any fundamental changes in duties.

Holiday Travel

Before lockdown in March 2020, travelling outside the UK was the focus of attention. Transnational movement was effectively banned as flights were stopped through China, wider Asia and then Italy and France. The rest is history. Whilst the UK government is seeking to open up the economy and travel, holidaymakers are finding themselves facing complicated rules for traveling to each individual destination.   Travelling abroad remains in a state of flux at this time. More areas have recently been added to the Green list, many foreign countries have their own changing arrangements for testing and quarantining making forward planning difficult. The travel list is reviewed every 3 weeks, with the next update due to be announced on Weds 25th August. The government list for entry to England can be found here https://www.gov.uk/guidance/red-amber-and-green-list-rules-for-entering-england   The costs for PCR testing have been under the spotlight in the last week and these will now be reduced.   Employers are finding complex travel arrangements leading to lots of uncertainty, cancellation, disruption and pleadings for every case to be treated on its merits.   This is an unprecedented situation. We suggest, where possible, discussing holiday arrangements in good time. Most holiday needs to be prebooked and authorised in advance.   Consider: – The likelihood of cancellation, holiday leave still needs to be taken. – The possible need for isolation on return, extended unpaid leave? – Is there an assumption that returning isolation will be “worked from home” – is this OK or will this amount to unauthorised leave, or be authorised as unpaid leave? – Amending previous holiday rules to allow extended leave (if this works for all concerned) – Objections from other work colleagues to overseas travel to high-risk areas   Key Action Point: Discuss holiday plans in advance, consider the impact of returning isolation and be prepared for requests to be flexible. Handle all cases as fairly as possible.

Covid-19: Workplace measures

What do employers need to do to keep work place safe? Workplace rules for wearing face masks or visors, hand washing, distancing, pedestrian routes, workstation sanitation or other hygiene measures and other shielding / preventative controls measures remain unaffected by 19th July removal of restrictions.   Statistics identify that people aged between 20-29 have the highest infection rates for COVID. Vaccination in the UK is not compulsory for all. There is no general provision that an employer can rely upon at the time of writing to compel their staff, freelancers, contractors, or visitors to take up the vaccine. There is a potential conflict within the workplace where employees refuse to work together for fear of getting COVID from a colleague whose lifestyle choice has greater exposure to infection; potentially giving rise to risk without any outward sign in the case of being asymptomatic. Separating workers in this situation would be wise. Existing workplace control measures may be sufficient. Should an unvaccinated worker have to work with others closely then this may give rise to redeployment to other duties.   Care Homes and health workers have special circumstances and specific justification for insisting that employees are vaccinated. Following consultation and discussions regarding any viable alternative redeployment, an employee may find that an employer is compelled to dismiss the unvaccinated employee. A dismissal of this kind falls under the heading of a Some other substantial reason [SOSR] dismissal. This is a potentially fair reason for dismissal, however, the specific context, the reasonableness of the employer’s discussions, and ultimately, justification for dismissal would all be relevant considerations for an employment tribunal. Should specific legislation be passed in this area, likely to be on a sector by sector basis, dismissal would be potentially fair but we await any changes here.     Regarding vaccination for Care Home workers, the requirement becomes law on 11th November 2021. The government has allowed a grace period of 16 weeks from the 22nd July to allow for vaccination to take place. This means 16th September is the last date for care workers to get their first jab so they are fully vaccinated before regulations come into force. Government ministers have stated at this time they have no intention of creating legislation in relation to compulsory vaccines outside Care Homes with employers needing to assess their own circumstances. This does not rule out a policy of “no jab – no job” for a business that can justify a vaccine policy and consult with staff who may not be able to comply.    Key Action Point:  Review the workplace rules that have been in place over the last year, assess the protective measures in place, ensure that necessary measures are implemented. Communicate with staff about the purpose of the measures: why they are in place and when they will next be reviewed. Social relaxation of lockdown rules does not automatically equate to an abandoning of workplace safety measures.

10 Questions Employers are asking about Furlough

If you still have employees furloughed under the scheme, now is the time to start planning for the future. Here are the top questions employers are asking:

1. How is the grant available under the JRS changing?

From 1 July 2021, the Government grant will reduce to 70% of furloughed employees’ wage costs for unworked hours. Pay for furloughed employees must remain at a minimum of 80% which means that employers must contribute 10% from their own pocket.

From 1 August 2021 until the closure of the JRS, the Government grant will reduce to 60% of furloughed employees’ wage costs for unworked hours. Employer contributions will therefore increase to 20%.

This means that from July 2021, employers will have to cover a portion of the employee’s actual wages, as well as the national insurance and pension contributions that they have been liable for for some months now.

2. When do I want my employees to return to work?

If there is work available for the employee to do, then you can get them back into the workplace as soon as possible. It should be remembered that there will be additional costs to the employer for keeping an employee on the JRS from 1st July 2021, so this may also be a factor in making your decision

3. How much notice must be given about a return to work?

There is no minimum notice period required for returning from furlough, but it is advisable for employers to talk to staff about any plans to end furlough as early as possible and address any concerns or problems there may be. Should you have any employees who are returning from abroad, consideration should also be given to allowing for any quarantine periods that may be necessary before their return.

4. What do you do if your employee has Health and Safety concerns about returning?

You may want to consider informing employees what health and safety steps you have taken to make the work-place safe. You can give them a copy of the risk assessment if required (An example risk assessment is available on our website)

Note that there is new legislation that means workers (as well as employees) cannot be subjected to a detriment by their employer for leaving or refusing to return to their workplace or for taking steps to protect themselves in circumstances of danger which the workers reasonably believe to be serious and imminent.

These rights are contained in a piece of legislation which comes into force on 31 May 2021 and the full text of which can be found at: https://www.legislation.gov.uk/uksi/2021/618/pdfs/uksi_20210618_en.pdf

5. Do I need to confirm the end of Furlough Leave in writing?

You should confirm to the employee in writing the end of the furlough leave period. This letter is required as a record for your audit trail for HMRC. A template letter for your use can be found on our website.

6. Can annual leave be taken at the same time as furlough and can holiday pay be claimed through the scheme?

Yes, but the employer must top up to 100% pay. It can be taken during both full and flexible furlough.

80% can be claimed through the scheme until the end of June 2021. From July 2021, employers can claim 70%; this drops to 60% in August and September. The remainder must be made up by the employer.

7. Can you enforce annual leave during furlough?

Yes. Government guidance confirms that employers can require a worker to take annual leave when on furlough.

8. What about shielding for clinically extremely vulnerable employees?

Shielding was paused in England and Wales from 1 April 2021 and in Scotland from 26 April 2021. However, guidance confirms that clinically extremely vulnerable individuals are still eligible for furlough even though shielding advice is not in place. It also confirms that there is no requirement for an organisation to be closed or experiencing a wider reduction in demand in order to furlough someone who is clinically extremely vulnerable.

9. Can I make someone redundant when they are on furlough?

Although the JRS is in place to try and avoid redundancies, it is inevitable that some businesses will assess that redundancies are required. The Government guidance confirms that employees can be made redundant while they are on furlough. Redundancy processes are still subject to the normal rules when carried out during furlough and, to prevent an unfair dismissal claim, reasonableness of the decision will be a key factor. This includes the financial position of the employer. As part of the process, employers should consider why furlough, with its ability to claim capped wages from the JRS, was not suitable in the circumstances.

10. Can I make a claim for wages payable during the statutory notice period?

No. This was permitted in the early stages of the JRS, however, guidance was subsequently amended to confirm that, for claim periods starting on or after 1 December 2020, a claim cannot be made for any days on or after that date during which the furloughed employee was serving a contractual or statutory notice period (this includes people serving notice of retirement or resignation).

If you have any further questions about the return to work procedure, or on the JRS in general, then please don’t hesitate to contact your consultant.

Making Flexible Working Work

Flexible working arrangements are now helping to keep many businesses operational amidst restrictive coronavirus regulations. Many companies that once thought flexible working arrangements could not work for them, are now functioning with remote working and flexible working hours. The picture is very mixed. At one end of the spectrum Microsoft has decided that some jobs will no longer return to the office. This is diametrically opposed by Goldman Sachs saying that home worker is “a temporary aberration” that does not fit their dynamic interactive culture.
 
In our experience there is a place for homeworking. For the majority that is not full time but a portion of the working week. The “closed-minded” approach of an employer may now find some kickback!
 
This can include reduced stress to better engagement. It is recognised that employees able to achieve a work-life balance are more likely to be happier and more productive at work. It could be that it’s simply different working hours or some days working remotely. There are recruitment and retention benefits too. Opportunities for flexible working is likely to be a question from candidates in the future and some employees may start to seek out an employer who has a flexible working policy in place.
 
However, we suggest that now is the time for employers to assess potential benefits as part of the inevitable excess of re-examined job roles and functions upon return to the workplace post-Covid and in the foreseeable future.
 
There will be some compliance issues: working hours are subject to the Working Time Regulations. A change in location must be preceded by a health and safety risk assessment in respect of that workplace and equipment being used.
 
A foundation of trust is also needed for flexible working practices to be effective. For example, remote staff or out-of-hours working can mean less day-to-day visibility. Staff surveillance software is available, but this may undo all the good that flexible working can achieve and does not always make for a good relationship between the parties.
 
Also, consideration needs to be given to the impact of changing working procedures for some that can impact significantly on others, from employee workflow to client relations.
 
Just because a working pattern has been in place since lockdown, it is not necessarily the best thing for your business. It might be, but it might not. The sooner steps are taken to have those discussions the “returning” or “non-returning” workers the better! 
 
Changes that you agree to should improve and not hinder your business in the long run. If you wish to discuss how flexible working might work in your business, email us to book a flexible working strategy call. 

Covid-19 vaccination: What can an employer do if an employee refuses to have a vaccine?

Most people will welcome the opportunity to be vaccinated against COVID-19, but there will be a minority who will be reluctant or refuse to have the vaccine. The reasons could be many and varied, including individuals who cannot have the vaccine (for example, on medical grounds), those who can have the vaccine but refuse (for example, on religious or spiritual grounds) and those who can have it but have concerns and are uncertain (for example, due to a fear of vaccinations generally).
 
The Health and Safety at Work Act 1974 obliges employers to take reasonable steps to reduce any workplace risks; this duty gives employers justification for encouraging their employees to be vaccinated to protect themselves and everyone else at the workplace. COVID-19 is also a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (known as RIDDOR) which strengthens employers’ encouragement that employees should agree to vaccination.
 
It may be prudent now for employers to begin planning for the wider rollout of the vaccine. Perhaps encourage concern staff with impartial, factual information or at least guide them towards it. Staff will need to be informed about the workplace controls measures and the impact and risks of COVID-19. Experience has shown that this needs to be repeated.
 
The press has reported that some employers want to make vaccination mandatory. One example Pimlico Plumbers (no strangers to the employment courts) stated that all new workers would have to receive or have received the vaccine. The phrase ‘no jab – no job’ was coined. Interviewed on Radio 5 the owner actually confirmed that he had no intention of firing anyone, or indeed enforcing the policy.
 
What we know for sure is that employers cannot forcibly vaccinate employees or potential employees. Mandatory vaccination is an intrusion on an employee’s body and would be an assault. More relevant in the workplace is forcing a vaccine may amount to indirect discrimination on the grounds of disability or religious or philosophical belief. Some employers would have a justification to act in that way, but this is not the answer in every case. The government has so far shown no intention of introducing legislation to make vaccines mandatory, but we may have to watch this space.
 
So, what if employees refuse vaccination? For the employer to discharge their health and safety duty, they may need to consider other steps. An employer could consider potential disciplinary proceedings for failure to follow a reasonable instruction in certain settings (such as health or care), but this approach is not without risk and any employer considering this should seek specific advice from us before doing so.
 
Can the employer insert a clause into the employment contracts for new employees? Existing employees can be asked to agree to a compulsory vaccination clause as a variation to their existing contracts of employment.  However, even if employees agree to vaccination in their original employment contract or a variation of it, employers still cannot physically enforce this as an individual’s consent is always required for any medical intervention. Employers enforcing a change without employees’ agreement would be in breach of contract and employees could resign and claim constructive unfair dismissal.
 
Failure to follow an employer’s reasonable instructions can lead to disciplinary processes and dismissal. Whether an instruction to have a COVID-19 vaccine is reasonable has not been tested in the tribunals and courts. As there is at least a risk of unfair dismissal, discrimination and other claims, employers should consider their position very carefully before moving towards disciplinary processes and dismissal. Being a test case as one of the first employers to dismiss on the grounds of vaccine refusal is likely to be time consuming and potentially expensive.
 
Every employment contract contains an implied term that employees must follow their employer’s reasonable instructions. Whether an instruction to be immunised is reasonable depends upon the facts of each case, for example the nature of the role, the numbers of clinically vulnerable colleagues, the size and layout and people contact in the workplace. For example, employers in a nursing home may be able to issue a reasonable instruction to employees to be vaccinated because refusal could put vulnerable people at risk. Employers in another sector such as accountancy, where it has been shown that work can be done effectively from home, may be in a weaker position and an instruction to be vaccinated may not be deemed reasonable.
 
This is clearly not an area without risk and organisations should ensure they have up to date risk assessments and policies in place. As always if you wish to discuss this topic further please contact your consultant.