Coronavirus: Guidance note for clients (1)

Claire Vane writes:

We are being asked a number of questions, and this note is written to provide guidance to our clients and contacts. The important thing to remember is that these are actually unchartered waters for everyone, and we are keen to support anyone who faces the challenges associated with CV. There is enormous pressure on all business owners, leaders, managers and HR teams to provide maximum support to take us through what is an extraordinary situation.

We are fortunate in that a large part of our work has, for many years, been done remotely, so we have just stepped up our meetings so that they are all, rather than just some, achieved remotely.

There are a number of areas on which we are being asked questions, and I will tackle these below. Please note that our guidance is relevant based on information available up to 19th March 2020. As this is an evolving situation, it is always important to refer to the latest possible information from government and official advisory bodies before taking action.

The Law: There are a number of pieces of law that are relevant to how we deal with employees and handle our response to CV, including:
1. Duty under Health and Safety law to protect the health, safety and welfare of a workforce;
2. Duty under Health and Safety at Work Regulations to carry out risk assessments and make changes, as necessary, and introduce training;
3. A Common Law duty to take care of the health of a workforce;
4. Express and implied terms of employment in contracts, including the implied duty of trust and confidence;
5. All the employment legislation, not least of all the Equality Act of 2010, which is not to discriminate against employees or workers with any of the nine protected characteristics, which are: Age, Disability, Gender reassignment, Marriage and civil partnership, Pregnancy and maternity, Race, Religion or belief, Sex and Sexual orientation.
Sick Pay: We are being asked about sick pay more frequently than about anything else, apart from how to facilitate remote working. Employees who are off sick with CV, or have symptoms, should receive occupational sick pay, where it applies under their employment contract, and the usual Statutory Sick Pay (SSP). Workers (e.g. zero hours workers) are also eligible for SSP.
1. With regard to SSP the usual 3 day waiting period has been suspended; SSP is payable from day one.
2. Those who self-isolate should, on specific Government advice, be paid SSP.
3. Employers who have fewer than 250 employees have their SSP refunded for 2 weeks.
4. Please note that FIT (fitness to work) notes will not need to be provided for CV infections lasting up to 14 days. From 20th March 2020 onwards those who have CV or are advised to self-isolate will be able to obtain an ‘isolation note’ by visiting NHS 111 online and completing an online form, rather than needing to visit a doctor. FIT notes for other health conditions should be available in the usual way.
5. If an employee refuses to come to work because they are frightened of the possibilities in relation to CV, there is no legal duty to pay, but the secret here is plenty of communication, and there are other factors to consider – see below. Ultimately, before the company takes any action, it is sensible to understand what circumstances are driving the behaviour. For example, an employee may co-habit with an individual who fits into one of the vulnerable groups and this may be contributing to their concerns. This knowledge may change how you choose to approach the situation.
6. Staff with underlying health conditions, those who might be considered elderly, or pregnant employees could consider working from home, and employers should consider how to facilitate that. They could also take paid leave entitlement or unpaid leave.
7. Stress and anxiety conditions may cause some employees to be unfit for work, and therefore they would, by the virtue of their stress, be paid occupational sick pay or SSP, dependent on the nature of the employment contract.
8. Please note that the self-employed are not at the time of writing entitled to SSP and would be able to claim Employment and Support Allowances through the normal channels. The Government is now looking at those who do not fall into normal worker or employee categories.
Pay: For those working from home, normal pay will be payable. For those who are sick with CV or have CV symptoms or have to self-isolate because they have been advised to or because someone in their household has symptoms of CV, sick pay will be payable as outlined above.
Sickness absence: Normal policies on sickness absence reporting should apply, but temporarily please note the Government’s self-isolation guidance at www.gov.uk/government/publications/covid-19-stay-at-home-guidance. Reporting arrangements still apply, as well as keeping in contact with the relevant line manager.
Please note that self-isolation is required for 7 days from when your symptoms start if you live alone, or, if you live with others, for 14 days from when the first person in the home becomes ill. If you live with others, all household members must not leave the house for 14 days. If you’re in a household in a 14-day isolation period and someone in your household develops symptoms, you, and everyone in the household, must continue to self-isolate for 7 days from when the symptoms first appear. This is the case regardless of where in the cycle your household has reached in the original 14-day self-isolation period. If symptoms become worrying you should contact the NHS online at www.111.nhs.uk and a symptoms check can be carried out at here.
Absenteeism levels: Allowances will have to be made before action is taken in relation to absence levels, because of the effect of CV. The CV outbreak, which will trigger an increase in absenteeism levels, should not be taken into account when action is taken under an Absence Management Policy.
Flexible working: This is bound to be affected if there are changing working patterns or working from home. If the organisation has agreed flexible working with an employee, in terms of home working, then it is important that the time basis and the reasons for this are clearly agreed so that whatever is the new normality can be resumed once the flexible arrangement comes to an end. It is always unwise, anyway, to agree to an indefinite flexible working arrangement. It is important to review the arrangement and see if it is viable from a business point of view once the current crisis is over, assuming that is the reason for the flexible working.
Remote working: The same goes for remote working. This needs to be communicated effectively, documented fully, and access given to whatever software and hardware is required.
Time and consideration needs to be given to the implementation of remote working and how that will affect a particular organisation. We’ve been working remotely for many years and would be happy to provide thoughts on this. Even appraisals can be done virtually, as can coaching sessions, training, investigation meetings, grievances and disciplinary hearings. What is required is a different mindset and an understanding of what fears underly the shift to remote working. It is also important as a manager to flex your style when managing remote workers; different techniques work with different people. Try not to fit your preferred method of working and communicating on others in your team and be prepared to be flexible in your approach. Some people will adapt well to remote working, but for others it will be a challenge. Ensure you offer the same amount of time and support to each person as being at home and physically away from colleagues can really add to a sense of isolation for some individuals. The mental wellbeing of your team is paramount and regular communication is key. Don’t just rely on email, use video conferencing tools to bring the team together and connect face to face as much as possible.
HR Input: The pressure on the HR function in travelling these unchartered waters is to provide good policy advice, good drafting and interpretation of policies and the law, but there are some other things to consider.
We consider the area of mental health to be top of the list, as this unprecedented level of anxiety is going to affect individuals in different ways. Communication is going to be the name of the game and one can never be accused of over-communicating.
This is the moment to appoint mental health first aiders, and to make sure that you have enough routine first aiders within the organisation anyway, and in line with statute. Also, it is important to ensure that key individuals are trained in dealing with mental health issues.
The best way of helping staff engagement is to keep communications going, even though remote working may be new to some organisations.
There is a wonderful phrase in a career guidance book called What Colour Is Your Parachute? which suggests that ‘whilst you are waiting for your boat to come in, why don’t you do some maintenance on the pier’. This is a good moment, therefore, to update your handbooks and policies with all the areas of change. These include a significant update to parental bereavement support which will come into effect on 6th April 2020, alongside considering the implementation of new policies on menopause for example. Additionally, although the changes in relation to IR35 have now been postponed for a year, nonetheless it would be good to put one’s house in order now, whilst there is more time available. This is also the moment to build a contingency disaster recovery plan, and to decide who is going to resource this for the current crisis and also for any future crises.
It is also a good time to review your template employment contracts and other agreements as from 6th April 2020, employers must give all workers (not just employees) a written statement of particulars from their first day of employment (as opposed to within the first two months of employment, which is the current position).
One of the most important things is to educate the workforce about boosting the immune system, and not the least of these is the importance of having enough sleep.
Business changes: If you have to close your business (or part of it) temporarily or permanently, or there’s not sufficient work available (perhaps because fewer people are using your services) you may have some difficult decisions to make. The government has announced a number of measures e.g. business interruption loans and guarantees to support small businesses. Before considering further action in relation to your workforce, which frequently represents the largest proportion of a business’ cost, we encourage employers to consider the new schemes and the applicability of these to your circumstances.
Redundancies and Lay-offs: Businesses need to consider whether they need to do short-term laying off of staff, or whether the consequences of what is happening require redundancies to be the only possible way forward. In the case of redundancies, statutory procedures need to be followed to the letter, as all current employment law still applies. If you would like specific advice on restructuring, then we can provide it, up to and including, where appropriate, drafting and negotiating Settlement Agreements. Employers should note that, although redundancy payments don’t kick in for two years and unfair dismissal claims require a minimum of two years’ service, nonetheless, employees have a right not to be discriminated against from day one. They also would have a claim for breach of contract should there be any breach of the contracted documentation in play for any individual.
Lay-offs: where there is a lay-off clause in your contract, you should follow the contractual requirement to the letter. Where there are no lay-off clauses, it would be important to remember that any unilateral change of contract is illegal. Therefore, to bring about a short-term lay-off, you will have to get agreement from the staff, by selling the benefits in the longer term of the lay-offs in the shorter term, i.e. to avoid more drastic action longer term. So, consultation is the name of the game as well as clear communication. You can only make a contractual change with the employee’s agreement.
Other options include consulting with employees to introduce short-time working or pay cuts or unpaid leave.
As we have already covered, the more you can effectively communicate and engage with your staff, the more likely it is that they will buy into any necessary actions or changes. Consulting with employees allows you to hear the employee voice and consider ideas and suggestions they have which you may not have thought of. This type of engagement and interaction strengthens the bonds of trust and confidence between you and your workforce, which is integral in times of unprecedented change.
GDPR and the data protection act of 2018: All the provisions of GDPR and the Data Protection Act 2018 still apply, and it would be worthwhile companies reminding people of their obligations under GDPR so that they do not unintentionally breach what is important legislation, and which has huge fines associated with any breach. Data protection legislation creates a unique challenge in the situation where a confirmed CV infection case has been diagnosed in your workforce. Under GDPR, any health data is considered ‘sensitive personal data’ and is subject to high levels of protection, as such in normal circumstances you would not be revealing any health information to others in your business. However, as employers you have an obligation to protect the health and safety of your workforce and as we know CV can be transmitted from person to person. In these circumstances it may be in the best interests of the employer to inform other employees of a confirmed case. We would advise you to seek consent from your infected employee that their diagnosis can be shared with their colleagues in the business where they have had direct contact with those individuals. Should consent be given, you would be safe to share the information. However, in the event that consent is withheld, it is possible that based on the wider implications for health and safety of the workforce, it may be deemed proportionate for you to inform those close colleagues of the infected individual of the situation so they can appropriately self-isolate and protect others. It is essential, however, to balance the need to inform others against an individual’s right to privacy and an employer would need to be able to demonstrate it had legitimate health and safety concerns to substantiate its decision to share the information without consent. Any sharing would also need to be proportionate to the situation to be considered reasonable and not a breach of GDPR.
Annual Leave: Individuals may well change their mind about travelling or may be unable to travel. Individuals should be guided into changing their booked holiday and normal business arrangements should apply. It may be possible that you will need to allow more carry forward of annual leave, and balance that with business needs. Those organisations who adopt a ‘use it or lose it’ policy will need to consider how they are going to carry forward leave into future years whilst protecting the needs of the business until a normal working situation returns. Furthermore, in the event an employee is sick on a period of annual leave, you should remind them of their right to take that time as sick leave and re-credit their holiday entitlement accordingly.

As always with employment law, it is important to follow both statute and contract, and therefore the details of the application of contracts will be different from employer to employer, dependent on what is written in any individual’s contract of employment or engagement letter on contracting services.

There are many sources of advice and the ones where you can find up to date advice that could be relevant, are:

Find our latest advice: https://www.integratedresources.co.uk/blog

Please contact us for more information: https://www.integratedresources.co.uk/contact

Best Regards
Claire Vane
Integrated Resources

Coronavirus: Guidance note for clients (1)

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