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16th March 2020

COVID-19: A guide for Employers

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As COVID-19 continues to spread throughout the UK at a rapid rate businesses are having to deal with the unique challenges it presents in relation to their staff. We provide some guidance to businesses in managing the employment implications and address some frequently asked questions which are arising. 1. What responsibilities do businesses have towards their employees?

• Employers have a duty to ensure the health, welfare and safety of all staff in the workplace. You are required to provide and maintain a working environment that is, so far as is reasonably practicable, safe, without risk to health and adequate as regards to facilities and arrangements for staffs’ welfare at work.

• Employers should provide staff with regular updates by email to inform them of the risk management and preventative measures being put in place by the business.

2. If employees self-quarantine, do businesses have to pay them?

• Emergency Statutory Sick Pay (“SSP”) regulations came into force on 13 March. They provide that SSP, which is currently paid at a rate of £94.25 per week (rising to £95.85 from 6 April 2020), will be available to anyone who is eligible and isolating themselves in accordance with guidance published by Public Health England. This will be relevant for those who cannot work from home during self-quarantine and we are expecting new regulations to confirm SSP will be payable from the first day of absence.

• On 12 March the Government issued guidance that those self-isolating with minor symptoms should not call their GP or NHS 111. Businesses should therefore consider making exceptions to their usual sick pay policies as to the evidence required, but strictly speaking employers are entitled to ask for medical certification once an employee has been off for 7 days.

• The government has said that it will meet the cost of COVID-19 SSP for small businesses with less than 250 employees, for up to 14 days per employee.

3. What if an employee cannot carry out their role from home?

• If an individual has chosen to self-quarantine but cannot work from home, ACAS guidance suggests that businesses should treat this absence in the same way as sick leave.

• If businesses cannot assign different responsibilities to an employee, employers may be able to agree with employees that they take holiday or unpaid leave for the time away from work.

4. What if schools close and an employee has to care for a child?

• Employees are entitled to take a reasonable amount of unpaid time off work to care for a dependant where this is necessary because of an unexpected event. A reasonable amount of time is often considered to be 2 days. Any further time will have to be taken as holiday, or a further agreed period of unpaid leave.

• Businesses should consider whether the employee could work outside normal working hours if they need to look after their child during normal working hours.

5. What can businesses do if COVID-19 causes a downturn in work?

If the situation worsens and businesses have to close for a time, or reduce usual output levels due to supply chain shortages or other circumstances, what are the potential solutions?

(a) Lay-offs

• Laying off employees means that an employer provides them with no work (and no pay) for a period of time while retaining them as employees. This provides immediate saving of remuneration costs and allows employers the flexibility to restore the workforce when business starts to pick up again.

• If the lay-off period is for an entire working week, it is a statutory lay-off

• Employers do not usually have the automatic right to lay-off staff. If the employment contracts do not give the employer the right to lay-off, whether expressly or for example as a result of custom and practice, any proposal to do so will be the subject of consultation with employees and will require employees’ agreement.

• Employees will be entitled to a statutory ‘guarantee payment’ of £29 for each day they do not work, up to a maximum of 5 days in any 3-month period (this payment will increase to £30 per day from 6 April 2020).

• You must not keep employees laid off for longer than necessary, otherwise the employees may be eligible to apply for redundancy after certain periods of time where the lay-off is a statutory lay-off.

(b) Short-time working

• Short-time working is a reduction in the hours or days in a week that employees are required to work with a corresponding reduction in pay.

• As with lay-off, an employer must have an express or implied (e.g. through custom and practice) contractual right to put employees on short-time working, or seek express agreement to do so.

• During a period of short-time working, employees only receive the pay for work done (i.e. they are not entitled to a guarantee payment on top, unless they do not work at all and do not receive pay on a particular day).

• An employee is only treated as being on statutory short-time working in any week, if they are paid less than half of their normal remuneration during that week.

• You must not keep employees on short-time working for longer than necessary, otherwise the employees may be eligible to apply for redundancy after certain periods of time if it is statutory short-time working.

(c) Holiday and unpaid leave

• Unless the employment contract allows employers to place employees on unpaid leave, their consent is required.

• As an alternative to unpaid leave, businesses could require employees to take their contractual or statutory annual holiday allowance, provided the employer gives them adequate advance notice (the notice required is equal to twice the number of days the employer requires them to take off).

(d) Other measures you may wish to consider

• Put an action plan in place in case the COVID-19 crisis worsens, with phased measures relating to employees.

• Defer new starters, subject to there being a contractual right to do so.

• Withdraw job offers (this may result in breach of contract claims so advice should be taken before withdrawing an offer of employment).

• Reduce non-permanent staff such as agency workers and self-employed contractors.

• Ban overtime, subject to the overtime being guaranteed overtime, in which case agreement with the employees would need to be reached.

For further advice contact one of our employment team.