Employment Law Update – October 2020
Wednesday 7th October 2020
ONE OF OUR EMPLOYEES HAS TO SELF-ISOLATE – WHAT DO WE PAY THEM?
With the Government introducing fines of up to £10,000 for individuals and businesses who don’t respect the self-isolation rules, and creating an offence where an employer knowingly permits a worker to attend a place other than where they are self-isolating, it’s more important than ever to know what to do when one of your employees is required to self-isolate.
Employers should not require or permit employees to attend work in the following instances:
- They, or a member of their household (or support bubble), has symptoms of coronavirus.
- They are advised to self-isolate by NHS track and trace, or they otherwise become aware that a person they have been in close contact with has tested positive.
- They have returned from a country not exempt from quarantine requirements.
If the employee can work from home, and is well enough to do so, then they should do this and nothing will change in terms of their pay. However, if they cannot work from home, their entitlement varies, as set out below.
Employee required to self-isolate under instance (1) or (2)
Employee is not furloughed
The employee will be entitled to SSP, even if they are not unwell themselves. The normal rule that SSP cannot be paid until day 4 of illness has been lifted in cases involving coronavirus, so self-isolating employees are entitled to SSP from day 1 of their isolation. However, employees are still required to self-isolate for at least 4 days for the entitlement to arise at all. This means that where employees begin to self-isolate but receive a negative test result and are released from self-isolation within 3 days, they will not be entitled to receive SSP for those 3 days.
If the employee is unwell, they will also be entitled to any contractual sick pay. If they are not unwell, company sick pay would not usually be payable but employers should look at the wording of their company sick pay rules. Some employers may decide to pay company sick pay even if there isn’t any requirement to do so to encourage employees not to come in to work while they should be self-isolating.
Employers can furlough employees who are off sick (if they have previously been furloughed), provided they have a business reason to do so. The flexible furlough scheme rules do provide that employees can be furloughed as a result of “measures taken to prevent or limit [coronavirus’] further transmission”. This could therefore extend to include self-isolating employees even where there is no overriding business reason. However the issue is as yet untested.
Employee is furloughed
The rules of the furlough scheme are not clear in this scenario. However, it appears that employers can choose whether to keep the employee on furlough, or to pay them SSP instead. If SSP is claimed, the employee’s salary cannot be claimed under the furlough scheme for the same period. If a claim has already been made, it will need to be rectified with HMRC. Conversely, if the employee is kept on furlough, they will not be entitled to SSP.
Similarly, employers can decide whether to keep employees who are flexibly furloughed on furlough or move them to SSP. Where the employer moves the employee to SSP, the employee will be entitled to SSP for both working days and those which would have been furlough days. However, where an employee remains furloughed for part of the week and should be working for the rest, the prevailing opinion is that employees are entitled to SSP for the days which fall on working days, and furlough pay for their furlough days.
The entitlement to contractual sick pay will also need to be considered in this situation.
Employee required to self-isolate under instance (3)
In this case, the employee will not be entitled to SSP or contractual sick pay. Employees may request annual leave to cover this period if they have sufficient entitlement. If they do not, then they may be required to take unpaid leave.
As with the above scenarios, whether employers are able to put employees on furlough to cover a period of quarantine is untested. In addition, furloughing the employee will trigger the requirement to top up pay by 20% in October and pay pension and National Insurance contributions.
Remember that the furlough scheme is closed to new entrants and therefore only those who have previously been furloughed can be placed on furlough anyway.
If, however, the employee develops symptoms during their quarantine period, they will then become entitled to SSP (and any company enhanced sick pay) and their absence can be managed as set out above.
Employers must ensure that they do not require or allow employees to attend their place of work whilst they are required to self-isolate. Doing so can now lead to a £10,000 fine for the business. Failure to pay employees appropriately may result in Employment Tribunal claims or action by HMRC.
For specific advice in relation to employee self-isolation, please contact a member of the Employment team.
REDUNDANCY AND ‘BANK’ LISTS
The recent case of Aramark UK v Fernandes has shown that where an employer keeps a list of people to whom they can offer employment when they need extra staffing (a ‘bank’ or ‘pool’ list), a failure to place an employee made redundant on this list will not make the dismissal unfair.
When an employee is dismissed by reason of redundancy, the employer must show that it carried out a fair procedure to defend a claim of unfair dismissal. Part of this requirement is that an employer should take reasonable steps to find an employee at risk of redundancy alternative employment within the organisation.
In this case, an employee (‘F’) was selected for redundancy. His employer maintained a bank list, and regularly provided people on that list with work.
F was not placed on the bank list, and he was dismissed as redundant. F subsequently lodged an unfair dismissal claim, arguing that he should have been put on the list when he was considered for redundancy as it offered him the chance of employment.
The Employment Appeal Tribunal held that the failure to place F on the bank list did not make the dismissal unfair as it would not have prevented the dismissal, and there was no certainty that being placed on the list would secure F work. On the question of whether the dismissal was unfair, it did not matter that the employer could have mitigated the adverse effects of the dismissal.
This judgment should give employers some comfort that not placing employees selected for redundancy on ‘bank’ lists will not, on its own, make a redundancy dismissal unfair.
If you require further information on the above developments please do not hesitate to get in contact with one of our employment law experts below.