Living With COVID-19 this Winter and Managing Staff Absence

Covid restrictions may have been lifted but employers still have a legal duty to protect staff, so how can they live with COVID-19 this winter and manage staff absences effectively and legally??

Living With COVID-19

What Are an Employer’s Legal Obligations?

While there is no longer a requirement for all employers to explicitly consider COVID-19 in their statutory health and safety risk assessments and the laws that required individuals to test if they had COVID-19 symptoms and then self-isolate and/or work from home if they tested positive have been revoked, employers still have both statutory and common law duties for health and safety.

The Health and Safety at Work etc. Act 1974 (HSWA 1974) imposes a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. It sets out the basic health and safety duties of a company, its directors, managers and employees and acts as the framework for other health and safety regulations. In particular, employers should ensure:

  • Provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health.
  • Safe use, handling, storage and transport of articles and substances.
  • Information, instruction, training and supervision as is required to ensure, so far as reasonably practicable, the health and safety of employees at work.
  • Places of work under the employer’s control are, so far as is reasonably practicable, safe for work and without risks to health (with safe entrances and exits).
  • Provision and maintenance of a safe working environment with adequate facilities and arrangements for welfare at work.

(Section 2(2), HSWA 1974)

In addition to their statutory duties, all employers have a common law duty to take reasonable care for the safety of their employees; they have a duty to see that reasonable care is taken to provide them with a safe place of work, safe tools and equipment, and a safe system of working.

It is an implied term of employment contracts that employers will take reasonable care of the health and safety of employees and provide a reasonably suitable working environment for performance of the employee’s contractual duties.  Where employees raise concerns about health and safety, they are potentially protected from unfair constructive dismissal, from detriment and dismissal by the health and safety provisions in sections 44 and 100 of the Employment Rights Act 1996, and from detriment and dismissal by whistleblowing legislation. Workers are potentially protected from detriment under the whistleblowing legislation.

Whilst there is no legal requirement for employers to report workplace outbreaks of respiratory infections to their local public health team, outbreaks of high levels of people with respiratory symptoms in workplaces should trigger actions to help reduce the spread.

Reducing the Spread of Respiratory Infections in the Workplace

As we move into our first winter without COVID-19 restrictions for two years, we will likely see a significant increase in cases of COVID-19 and other respiratory infections, which will, courtesy of the Health and Safety at Work etc. Act 1974, impose legal and operational obligations on employers.

Keys steps employers should take manage the risk of infection from COVID-19 and other respiratory infections include:

  • Encourage and enable vaccination
  • Let fresh air in
  • Maintain a clean workplace
  • Reassure staff by telling them how the workplace has been made safe
  • Encourage staff to raise any concerns they have, listen to them, and try to resolve them together
  • Consider the needs of employees at greater risk from COVID-19 and other respiratory infections, including those whose immune system means they are at higher risk of serious illness and be aware that you must make reasonable adjustments for disabled staff
  • Take steps to keep everyone safe at work

COVID-19 will remain a public health issue and guidance for workplaces has been replaced with public health advice.  You can check the latest position and timescales for the nation you are working in here:

Managing Absences Caused by Infection from COVID & Other Respiratory Viruses

The latest public health advice for individuals suffering with symptoms of Covid-19 and other respiratory infections such as flu is consistent across the UK and recommends that individuals should try and stay at home and avoid contact with other people if they have symptoms of a respiratory infection.

In consideration of the latest public health advice and the strong likelihood of a significant rise in COVID-19 and other respiratory infections as we move into winter, employers will almost certainly see an increase in employee absences and should therefore be ready to manage absences effectively and legally.

The main issues an employer will need to consider when dealing with sick employees include:

  • Entitlement to SSP and/or contractual sick pay, including deciding whether qualifying conditions have been met.  Many employers will have sickness policies which set out relevant qualifying conditions.
  • The reason for absence, and whether it is genuine. This will entail ascertaining the true medical position and may involve seeking a medical report.
  • Whether the incapacity has been caused by workplace factors such as stress, bullying or an accident at work.
  • Whether the absence coincides with any periods of holiday.
  • Whether the absence is related to a disability and whether any reasonable adjustments may need to be made.
  • Considering whether the employee may be eligible for permanent health insurance or ill-health retirement.
  • Whether dismissal is appropriate and, if so, ensuring a fair process is followed.

Having an effective policy in place will help employers to deal with absences consistently and effectively as well as putting employees on notice as to the standards of attendance and reporting that the employer expects from them. This in turn will help reduce legal risk.

Sickness Absence Reporting Requirements

Employers should ensure that they set out the reporting requirements for staff who are unable to attend work due to illness or injury. Employers will have differing views on the time by which absence must be reported. In many workplaces it may not be practicable to notify anyone earlier than the normal opening time at that workplace. However, where staff work shifts, the workplace may be open long before the employee’s shift starts (or even open 24 hours a day) in which case the employer may require sickness to be notified at least an hour in advance of the start of a shift, so that cover can be arranged if necessary.

Evidence of Incapacity

For the purposes of company sick pay, an employer is free to choose what evidence of incapacity it requires. Many employers require self-certification for up to seven days’ absence, and a medical certificate thereafter, as this is in line with the statutory sick pay (SSP) requirements. For SSP purposes, an employer cannot require a doctor’s certificate for the first seven days of sickness absence. Whether they do so after that is largely up to the employer, but most do. Strictly speaking, employees need not self-certify absence of less than four days for SSP purposes, as SSP is not paid for the first three days of absence. However, an employer may still wish to ask for self-certification of shorter periods as part of its absence management strategy.

Employers can in theory require a doctor’s certificate for all absences as a pre-requisite of company sick pay, although this is rare. Many employers require self-certification. (See Practice note, Managing sickness absence: Evidence of incapacity.)

The “Statement of Fitness to Work” (or “fit note”, which replaced the old-style sick note in April 2010) enables GPs to certify that an employee is “not fit for work” or that they “may be fit for work” taking account of advice that the GP then sets out. This may include recommendations such as a phased return to work, altered hours or duties, or other adaptations. When presented with these statements, employers should generally hold a return-to-work interview to discuss any changes that may be needed.

Return to Work Interviews

Return-to-work interviews give an employer the opportunity to welcome a member of staff back to work. In addition:

  • They provide the opportunity to confirm the details of the absence for record-keeping purposes.
  • The provide an opportunity to discuss any changes that might be needed to facilitate a return to work.
  • In the case of someone who has had several short, intermittent absences (and who is unlikely to be on a phased return-to-work programme), they provide the opportunity to establish whether there may be any underlying health or other (for example, disciplinary) issues that the employer should investigate further.

An effective sickness absence policy can fulfil several purposes. First, it sets out the employer’s sick pay arrangements including the rates of pay and the requirements for notifying and providing evidence of incapacity. It is a legal requirement that terms and conditions relating to incapacity for work due to sickness or injury, including any provision for sick pay, are given to the employee in writing. This can be done either in the “principal statement” of employment terms given under section 1 of the Employment Rights Act 1996 (ERA 1996), or in a reasonably accessible document such as a staff handbook, referred to in the statement. (Section 1(4)(d)(ii), ERA 1996.).

Second, the policy provides a procedure for managing longer-term incapacity including obtaining medical evidence, considering alternatives for rehabilitating the employee into work (including any reasonable adjustments for disability under the Equality Act 2010), and ultimately providing a fair procedure for dismissal where this is the appropriate course of action.

Managing Long-term or Persistent Absence

The purpose of a sickness absence meetings procedure is for employers to address issues caused by illness, as well as staff being away from and not contributing to its business. Issues are likely to arise when it is believed that illness is not genuine or where repeated periods of absence or long-term absence are impacting on colleagues, departments, and the employer’s business.

The procedure needs sufficient flexibility to deal with each individual case. Employers should consider adjourning any meeting in the procedure to consider any new matters if they arise. As soon as a case is identified as a conduct rather than an ill-health issue, it should be transferred and dealt with under the employer’s disciplinary procedure.

While it would seem probable that the right to be accompanied does not extend to meetings which are not disciplinary in nature, including those relating to ill-health, providing the right to be accompanied and adding the discretion for the employer to exercise flexibility would be prudent. Whether, and to what extent, discretion is exercised can only be decided on a case-by-case basis.

Medical Examinations

Medical advice can:

  • Establish the reason for absence and whether any illness is genuine.
  • Indicate the likely length of continued absence.
  • Assess the effect of an illness on an employee’s ability to do their job, what they are capable of and what, if any, adjustments can be made to help them to return to work.
  • Assist in arranging a phased return to work from long-term sickness absence.
  • Establish whether an employee is likely to qualify for any employment benefits, such as permanent health insurance (PHI) or early ill-health retirement.

Highlighting the potential to ask for medical advice may put off employees who are minded to “fake” illness to take time off work. It also draws attention to the need to co-operate with the employer’s attempts to understand ill health absence.

The steps an employer must take when requesting a medical report (whether from a general practitioner, a specialist consultant, a company doctor, or an occupational health specialist), must take the impact of the Access to Medical Reports Act 1988 and data protection legislation into consideration.

Stage One:  Initial Sickness Absence Meeting

The purposes of the first meeting will depend on the type of sickness absence being investigated and whether any potential conduct issues have arisen in the individual case.

Prior to convening the initial sickness absence meeting, full details of the absence record along with reasons should be made available to all participants. The employee should be made aware of the date and location of the formal meeting and the reasons for it. In addition, they should be informed of the right to be accompanied by a work colleague or trade union representative at the meeting.

In cases of long-term sickness absence, the central issues will be the nature of the employee’s illness, how much longer they are likely to be away and whether they are going to be able to return to their job. It may be too early to predict a return date and it may be decided to obtain medical advice (either from the employee’s and/or the employer’s medical advisers) on both this and the employee’s ability to resume their job/adjustments at this stage.

In cases of intermittent absences, the issue may be the cause of the employee’s absences and the likelihood of recurrence. An employer may need to explain the impact that the absences are having on the employee’s colleagues and on the employer’s business. It may be decided to obtain medical evidence on the nature of the employee’s illness, the likelihood of recurrence and any steps that can be taken to reduce recurrence.

A meeting can end with a summary of matters discussed and action that it has been agreed will be taken. This can then be confirmed in writing as detailed under the procedure.

Stage Two: Second Sickness Absence Meeting

After the first stage of the sickness absence procedure, the second stage provides for further meetings with a view to resolving difficulties caused by short-term intermittent absences and the return to work of an employee on long-term sickness absence.

The second stage of the procedure should be designed to be flexible, accommodating the individual characteristics of each case. The suggested purposes of the further meetings in the procedure can act as a checklist for employers, to ensure that they are considering those matters relevant to a fair and non-discriminatory dismissal (should it ultimately terminate the employee’s employment).

Stage Three:  Final Sickness Absence Meeting

The third stage of the procedure is reached when meetings under the second stage have not achieved their intended aim (overseeing a long-term absentee’s return to work or the eradication of sporadic absences).

This meeting should provide the employer with an opportunity to review the action it has taken to achieve its aim, why they have not worked and whether there is any reasonable prospect that waiting any further will be productive.  The meeting also provides the employee with the opportunity to put forward anything that they consider the employer should have done.

Otherwise, the final meeting is likely to result in the termination of the employee’s employment. The employer should check that all prior warnings that it is relying on in making the decision to dismiss are valid. Failure to do so may result in a dismissal being unfair.


If the decision is taken to dismiss the employee, they must be informed of their right to appeal against this decision.

Do You Need Assistance to Manage Respiratory Illnesses and Sickness Absence Effectively and Legally?

The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations to ensure compliance.  If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.

New National Living Wage & National Minimum Wage Rates from 1 April 2023

On 17 November 2022, the UK Government confirmed in its Autumn Statement that it has accepted the Low Pay Commission’s proposed increases to the national living wage (NLW) and national minimum wage (NMW) rates from 1 April 2023.

About the National Minimum Wage (NMW)

The national minimum wage (NMW) is a prescribed minimum hourly rate of pay which employers must legally pay to most of their workers.

There are five different rates of NMW for different age-related categories of worker:

  • National living wage. Since 6 April 2021 this applies to workers aged 23 or over. The NLW was initially set by the government in April 2016 at 50p above the standard adult rate, but is now a separate age-related hourly rate.
  • Standard (adult) rate. For workers aged 21 and 22.
  • Development rate. For workers aged between 18 and 20 inclusive.
  • Young workers rate. For workers aged under 18 but above the compulsory school age, that are not apprentices.
  • Apprentice rate. For apprentices under 19 years of age or those aged 19 and over but in the first year of their apprenticeship.

A worker is entitled to the rate that applies at the start of a particular pay reference period even if the NMW rates are changed or the worker becomes entitled to a different rate during that reference period (regulation 4B, NMW Regulations 2015).

National Minimum Wage Increases Announced for 1 April 2023

Having accepted the Low Pay Commission’s proposed increases to the national living wage (NLW) and national minimum wage (NMW) rates from 1 April 2023, the new rates from 1 April 2023 will be:

  • Age 23 or over (NLW rate): £10.42 (up 9.7% from £9.50)
  • Age 21 to 22: £10.18 (up 10.9% from £9.18)
  • Age 18 to 20: £7.49 (up 9.7% from £6.83)
  • Age 16 to 17: £5.28 (up 9.7% from £4.81)
  • Apprentice rate: £5.28 (up 9.7% from £4.81)

Although an increase in wages will be warmly welcomed by those currently receiving the NLW and NMW struggling to cope with the cost of living crisis, the increase announced on 17 November 2022 falls short of the Real Living Wage of £10.90 (£11.95 in London) that the Real Living Wage Foundation recommends should be paid to all workers aged 18 and over.

In contrast, in a three-year period that’s been plagued by the Covid-19 pandemic, Brexit, and the conflict in Ukraine, the combination of which has created a host of supply chain issues, driven up energy costs, and caused inflation and interest rates to soar to unprecedented levels, this average 9.9% increase in the NLW and NMW will undoubtedly impact SMEs and place an added strain on business finances that are already under significant pressure.

Do You Need Assistance?

The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in providing specialist advice on contentious and non-contentious employment law and HR issues. If you have any queries or concerns about how the increase to the National Living Wage and National Minimum Wage impacts you, call us on 0800 612 4772Contact Us via our website or Book a Free Consultation online.

How Employers Can Avoid an HR Own Goal During the FIFA World Cup 2022

Employers can avoid an HR own goal during this year’s FIFA World Cup by planning ahead and taking some simple steps.

An HR Survival Guide for Employers

The 2022 FIFA World Cup in Qatar kicks off on 20 November 2022 and will run until 18 December 2022 and sees 32 nations taking part in 64 matches. Whilst this will no doubt excite football fans others will be less excited including many Employers, not least due to the difficulties it could cause them.

The not so good news for UK Employers

With kick off times for group matches scheduled for 10am, 1pm, 4pm and 7pm, staff could still phone in sick or worse simply not turn up in order to watch matches and this could have serious implications for Employers.

To help Employers better understand the risks and equip them with tools to better manage the situation and create a positive outcome for both employer and employee, we’ve outlined below the keys points Employers should consider.

Potential Issues Employers Might Face

  • Unauthorised absence
  • Staff being drunk / under the influence of alcohol at work
  • Inappropriate conduct by employees – discrimination, racism, bullying or harassment
  • Increases in holiday requests from both football and non-football fans alike

Ways Employers Could Avoid Issues

Employers should ensure they have clear policies in place including:

  • Sickness & Absence Policy
  • Code of Conduct
  • Discipline & Grievance Policy
  • Bullying & Harassment Policy
  • Drugs & Alcohol Policy
  • Equality & Diversity Policy

Manage absenteeism in advance

  • Make it clear to employees that absences without authorisation will not be paid and may lead to action under the Disciplinary Policy.
  • Utilise Return to Work Interviews to identify and address fake sickness absence or absent resulting from post-match hangovers

Reconsider Your Holiday Arrangements

  • Relax caps on the number of employees that are allowed to be on holiday at one time
  • Where staff have indicated they want to see certain matches, encourage them to take the time off as annual leave.
  • Remember non-football fans may make holidays requests during the same period and so you will need to ensure you treat all holiday requests fairly and equally.  Granting a holiday request by a male employee but refusing a holiday request from a female employee could trigger a claim of sex discrimination!

Other Things Employers Can Consider

  • Screening matches in a meeting room or communal area.
  • Relaxing your Internet Policy and allow employees to stream matches on their PCs.
  • You will need to ensure you have the appropriate licenses in place which allow screening or streaming of live TV within the workplace.

Do You Need Assistance?

Events like this can create legal pitfalls for Employers, especially those who don’t have up to date HR policies in place. The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers and can review your existing HR policies to make sure they up to date and compliant with current legislation and the ACAS Code of Conduct. If you have any queries or concerns you can call us on 0800 612 4772Contact Us via our website or Book a Free Consultation online.

Avoid a HR Hangover This Christmas 2022

He’s Making a List….He’s Checking it Twice…..but at this year’s Christmas party will YOUR staff be naughty or will they be nice?

Many Employers have already started planning this year’s Christmas party and are no doubt hopeful that this festive season will be an enjoyable time for bosses and employees alike, but without careful planning, employers could easily end up with a costly HR Hangover!

Christmas Party Planning

Before the party even begins employers could find themselves on the naughty list by making attendance at the annual Christmas party mandatory.

Employers need to remember that Christmas is a Christian holiday, so staff should NOT be placed under any pressure to attend Christmas parties if they don’t want to.  Some may opt not to attend for religious reasons while others may have family obligations that prevent them from attending but whatever the reason, attendance at the annual Christmas party should not be mandatory.

Leaving staff off the invitation list can also potentially create problems for employers and expose them to discrimination complaints, so employers should ensure ALL employees are invited, including those who are on maternity leave, paternity leave and sick leave.

Christmas Party Time

Once the annual Christmas party starts, free flowing alcohol often acts as a trigger for some less than jolly employee behaviour leaving employers with a less than festive HR hangover to cope with.  Common issues employers often have to deal with after the annual Christmas party include gross misconduct (usually the result of a festive punch up), claims of bullying, harassment or even discrimination (sex, age, race, religious), and inappropriate photos and social media posts to name but a few.

To help employers avoid an HR hangover by steering their company sleigh around the traditional Christmas HR landmines, here are some ‘Top Tips” from Employment Law Services (ELS):

  • Ensure all staff are aware that the Christmas party is still a work-related activity, that inappropriate behaviour will not be tolerated, and that may be subject to disciplinary action if they behave inappropriately.
  • Share the company’s disciplinary and grievance procedures with all staff prior to the party.
  • At the Christmas party, ensure all employees are catered for regardless of their age, sex, sexual orientation, religion or disability.
  • Reiterate to all staff the business’s social media policy and the consequences of posting pictures online that may damage the company’s reputation or breach another colleagues right to privacy.
  • If staff are expected to come in the day after the office party, make sure this has been clearly communicated to them beforehand.
  • Lastly, consider providing transportation from the party venue to ensure staff arrive home safely.

Do You Need Assistance?

The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers and can review your existing discipline & grievance policy to make sure they up to date and compliant with current legislation and the ACAS Code of Conduct. If you have any queries or concerns you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.