Coronavirus: Pay and sick pay

The current pandemic has caused quite understandable concern amongst employers and employees as regards how employees will be paid if they contract the virus, their workplace is closed or if they are required to self-isolate.

Where we have come from

Employees are entitled to be paid if they are ready, willing and able to work. If they are able to do so but the employer has no work for them, then they are entitled to be paid but issues of redundancy and lay-off can arise.

If employees are incapacitated, sick pay can be provided for in contracts and employees earning more than £118 per week are entitled to Statutory Sick Pay (“SSP”) currently £94.25 per week (approximately 20% of average UK weekly earnings). This figure will increase to £95.85 from 6 April and can be payable for 28 weeks.

Changes so far as a result of the coronavirus pandemic

Emergency legislation has been introduced to:

• Make it clear that self-isolation (and quarantine) counts as incapacity for SSP purposes.

This legislation is in force from 16 March 2020. Prior to this it was arguable whether the law could cover such circumstances.

Further changes are imminent, which will be temporary:

• SSP will be payable from the first day of absence. Currently it starts from the fourth day of a period of absence.
• Small employers (with fewer than 250 employees) will be reimbursed SSP paid for the first 14 days of coronavirus absence.
• A notification to self-isolate obtained via NHS 111 will be evidence of absence from work for SSP purposes so there is no need to contact doctors for a Fit Note.

So where does that leave us now?

The more common questions include:

What do employees get paid if they self-isolate?

If self-isolated in accordance with government requirements, they are incapacitated irrespective of actually being unwell and SSP is available.

As most contractual sick pay is triggered in the same way as SSP, then contractual sick pay should be available too. Typically, this would “top up” SSP to normal pay levels.

But if, for example, the employee self-isolating has no symptoms or is self- isolating because a member of the same household has symptoms and is able to work from home, then they can continue to work, wouldn’t get sick pay and would be paid in the normal way.

Can employees be asked to take holiday?

Holiday can be agreed and may be an alternative to receiving only SSP where the employee is well, required to self-isolate but not able to work from home.

There are complicated mechanisms in the Working Time Regulations allowing employers to make employees take holiday but these can’t be used where the employee is on sick leave.

Can employers send employees home to self-isolate?

If the employee falls under government guidance to self-isolate (i.e. they are displaying symptoms identified in that guidance or would otherwise be required to self-isolate due to recent travel or contact or for other reasons as per such guidance), then the employer should send the employee home. This is consistent with health and safety duties to other employees and government guidance regarding cleaning and possible closure of the workplace should be observed.

The employee sent home would in such circumstances qualify for SSP and contractual sick pay might be triggered but if they can work from home, then they would be paid in the normal way instead.

What if an employee won’t come to work due to fears about coronavirus?

In the absence of a government lockdown prohibiting attending at a particular workplace and assuming the employee isn’t sick and self-isolation requirements don’t apply, then SSP isn’t triggered.

Therefore, if absence is unauthorised, there would usually be no right to pay and not attending work can be a disciplinary issue. If the employee is one with medical issues that might amount to a disability, then those issues would need to be very carefully considered – ideally with legal advice – to avoid possible discrimination claims.

A practical approach would be to consider homeworking and other options such as unpaid leave or taking holiday in all such circumstances.

What about the self-employed?

SSP only applies to qualifying employees. The self-employed will have to look to separate government measures designed to support the economy, details of which at the point of writing this article were only beginning to emerge.

It is also hoped that such government financial support will also help the many casual workers in the economy, such as waiting staff, whose lower earnings would not trigger SSP.

If you have further questions relating to sick pay or require any other employment advice please contact David via the details below.