The team at Employment Law Services (ELS) continues to work tirelessly to help support employers to assist them to prevent problems and protect their businesses by providing practical employment law advice. We have collated information from a variety of reliable sources and provide it here to ensure UK Employers are aware of their legal obligations and to assist them to deal with the various implications imposed by the rapid spread of the COVID-19 (Coronavirus) outbreak.
If you are an employer affected by any of the issues being created by the outbreak of Coronavirus and require further assistance and support, call us now on 0800 612 4772 or Contact us via our website.
This article focuses on Statutory Sick Pay (SSP).
Statutory sick pay (SSP) and COVID-19
In what circumstances is SSP payable?
In order to qualify for Statutory sick pay (SSP) an employee must be absent from work due to incapacity. Where an employee has not, at the point they are suspended, either been diagnosed with COVID-19 or exhibited symptoms, then it is unlikely that their absence will meet the definition of day of incapacity in section 151(4), Social Security Contributions and Benefits Act 1992:
“A day on which the employee concerned is, or is deemed in accordance with regulations to be, incapable by reason of some specific disease or bodily or mental disablement of doing work which he can reasonably be expected to do under that contract”.
However, regulation 2, The Statutory Sick Pay (General) Regulations 1982 (SSP Regulations) provides for certain types of absence to be deemed days of incapacity. Regulation 2 was amended by the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 to introduce a new regulation 2(1)(c), with effect from 13 March 2020. Regulation 2(1)(c) provides that a person is deemed incapable of work where he is:
“isolating himself from other people in such a manner as to prevent infection or contamination with coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland(d) or Public Health Wales(e) and effective on 12th March 2020.”
Regulation 2(1)(c) was introduced to resolve the difficulty in interpreting the rest of regulation 2(1) as including self-isolation following government guidance. For sources of information on the circumstances in which self-isolation is advised. Employers should regularly check the public health guidance on self-isolation as it has changed as the pandemic has developed, and it directly affects who is entitled to SSP during self-isolation. It is possible that different advice could be given in England, Wales and Scotland.
Regulation 2(1)(b) may still be relevant in the case of mandatory quarantine ordered under the Health Protection (Coronavirus) Regulations 2020 (SI 2020/129). Regulation 2(1)(b) provides that a person is deemed incapable of work where they are:
“(i) excluded or abstains from work, or from work of such a kind, pursuant to a request or notice in writing lawfully made under an enactment; or
(ii) otherwise prevented from working pursuant to an enactment,
by reason of it being known or reasonably suspected that he is infected or contaminated by, or has been in contact with a case of, a relevant infection or contamination.”
The introduction of regulation 2(1)(c) means that, in most cases, an employee who is in quarantine or self-isolation will be regarded as being incapable of working for SSP purposes.
We discuss the application of this test in various scenarios which may arise in the COVID-19 outbreak below. The government has announced further forthcoming changes to SSP in light of the COVID-19 outbreak which are discussed below.
What changes to the normal rules on SSP and fit notes have been made in light of COVID-19?
Amendments which have taken effect
As we explain below, following an announcement in the March 2020 Budget, the SSP deemed incapacity rules have been extended to cover those who self‑isolate in accordance with government guidelines.
The government indicated an intention to also extend SSP to those caring for those within the same household who were exhibiting symptoms of COVID-19, but this is not explicitly covered in the new regulation 2(1)(c). The carer would only be covered by the new rule on deemed incapacity if the public health guidance also required them to self-isolate.
As a result of the COVID-19 outbreak, the government has announced that it will bring forward emergency legislation temporarily making statutory sick pay payable from the first day of sickness absence.
The government has also announced that small employers (with fewer than 250 employees) will be reimbursed for any SSP paid to employees in respect of the first 14 days of sickness related to COVID-19.
In the March 2020 Budget, the government also announced that a temporary alternative to the fit note will be introduced in the coming weeks which can be used for the duration of the COVID-19 outbreak. This system will enable people who are advised to self-isolate to obtain a notification via NHS 111 which they can use as evidence for absence from work, where necessary. This notification would meet employers’ need for evidence, whilst taking pressure away from General Practices.
Why did the government introduce new rules on deemed incapacity for SSP purposes?
The deemed incapacity rules in the SSP Regulations were extended to explicitly include employees who are self-isolating following government guidance. This amendment was necessary because the pre-existing deemed incapacity provisions did not clearly cover self-isolation.
It was possible to argue that self-isolation on the basis of a written request from a medical professional to do so fell within regulation 2(1)(b) of the SSP Regulations. However, regulation 2(1)(b) requires that the request to self-isolate is made under an enactment, and it was not clear if the requests being issued by the public health authorities could be said to be made under an enactment.
In addition, those who were self-isolating on the basis of government guidance but without seeking medical advice and obtaining a written request to self-isolate did not meet the definition of deemed incapacity and were not entitled to SSP. The introduction of regulation 2(1)(c) clarifies that anyone who is otherwise eligible for SSP will receive it if they are unable to work because they are following public health guidance to self-isolate.
Absence and pay: no symptoms or diagnosis
Is an employer entitled to send an employee home from work to self-isolate?
If the workplace and the nature of the role allow for remote working then this may provide the employer with an alternative to suspension for the purposes of self-isolation.
There are a range of reasons that an employer may wish to send an employee home to self-isolate. The employer may be acting out of an abundance of caution (in circumstances where government guidance does not suggest that self-isolation is required), the employee may have had contact with someone who has been infected or travelled to a country with a particularly large outbreak (which may fall within the circumstances in which the government recommends self-isolation), or they may be exhibiting symptoms.
If there is an identified risk that an employee may have been exposed to COVID-19, then it is understandable, in light of an employer’s duty to protect the health and safety of other employees, that the employer would wish to keep that employee away from the workplace until the risk has passed. Ultimately, the employer may regard the risk of allowing the employee to remain at work as outweighing any employment law risk which could exist in suspending them.
From an employment law perspective, the employer should consider whether it has an express right to require the employee to stay at home. If not, the question is then whether there is an express or implied right for the employee to attend work in these circumstances. It would be unusual for the employer to have provided the employee with an express right to attend work regardless of circumstances, and there is no general implied term requiring an employer to provide work provided it continues to pay the employee’s wages. It is therefore unlikely to be a breach of implied duties to require an employee to stay at home in these circumstances, assuming there are reasonable and non-discriminatory grounds for concern, and the matter is dealt with appropriately, proportionately and sensitively.
Where the employee falls within the category of individuals who are being advised through public health guidance to self-isolate, or where the employee is exhibiting symptoms, then the employer may be entitled to treat the employee as on sick leave rather than suspension. We discuss this point further below.
Where an employer sends an employee home from work to self-isolate, what pay are they entitled to?
An employee’s right to pay where their employer sends them home from work will depend upon the precise circumstances of that decision. There are a number of different reasons that an employer may require an employee from attending the workplace.
Where the employee is able to continue to work from home then, subject to any contractual provision to the contrary, they will continue to be entitled to their normal rate of pay.
If they are not able to do so then consideration would need to be given to the terms of the contract of employment, although most employment contracts will not provide for this type of scenario.
Scenario 1: Employer suspends for reason not falling within government self-isolation advice
Where an employee is suspended by their employer on health and safety grounds, because of a possible risk of infection which does not fall within the government’s self-isolation advice, it is likely that they have the right to continue to receive full pay on the basis of the employer’s implied duty to pay wages. This assumes that there is no express contractual provision to the contrary, and that the employee is contractually entitled to be provided with work. Some casual employees may have no entitlement to be provided with work and therefore have no entitlement to pay if the employer does not provide them with work due to a fear of possible infection.
Where an employee is willing and able to perform work in accordance with the contract, there is an implied term that the employer has an obligation to pay wages, unless there is a contractual right not to do so. An employer could argue that the employee is not able to work because of the risk that they pose to colleagues. However, this does not, in itself, affect their ability to come into work and perform their duties so it would be risky to withhold pay on this basis. Withholding pay may also discourage employees from identifying a risk that they may have been infected and indirectly lead to an increased risk of infection in the workplace. An employee in these circumstances will not be entitled to SSP because they are not unfit to work and do not fall within the deemed incapacity provisions in regulation 2(1), SSP Regulations.
The public health bodies in England, Wales and Scotland are continually monitoring their advice on self-isolation. Because of the link between the public health advice and entitlement to SSP, it is important that employers keep updated on this issue. As matters currently stand, there is a contradiction between the advice on self-isolation in England between Public Health England and BEIS: COVID-19: guidance for employees, employers and businesses and Public Health England: COVID-19: stay at home guidance.
The former advises self-isolation for those returning from countries with a high incidence of COVID-19 (but links to withdrawn guidance), and the latter advises self-isolation only if the individual suffers from certain symptoms. It is therefore currently unclear what the public health advice on self-isolation is in England.
Scenario 2: Employer suspends for reason falling within government self-isolation advice
Where an employer is considering suspension because an employee falls within the circumstances in which public health advice is to self-isolate then the position in terms of pay may be different. In those circumstances, an employer may direct the employee to return home and seek medical advice. If the employee falls within the category of people who have been advised in government guidance to self-isolate then they will fall within the new deemed incapacity rules for SSP discussed further below. In those circumstances it is likely that the employer could treat them as being on sick leave and pay them SSP (subject to any contractual sick pay policy).
There is a specific statutory right to be paid when medically suspended, but it is currently limited to very narrow circumstances which are unlikely to apply in a pandemic. The grounds on which this right applies could be extended by the Secretary of State, but it does not currently cover infection or suspected infection with COVID-19.
Where an employee refuses to attend work due to fears about coronavirus, what action can the employer take and what pay are they entitled to?
If the employee can work from home, then this may well resolve the issue. If not, the employer would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of the employee’s refusal.
If there is no discrimination angle, and the public health advice is such that the employee could reasonably be asked to continue to attend work then it is possible that the employee could be investigated for misconduct in terms of their refusal to follow a reasonable management instruction, and their unauthorised absence.
If the absence is unauthorised then the employee would likely not be entitled to pay as they are not willing to attend work.
Where an employee self-isolates following either a direction by a medical professional or government guidance, what pay are they entitled to?
It is assumed for the purposes of this analysis that the employee is not exhibiting symptoms and has not been diagnosed with the disease in question, and that they cannot work from home during their self-isolation.
Where an individual self-isolates in response to either direction by a medical professional or government guidance they will be deemed incapable under the new deemed incapacity rules for SSP. They will therefore be entitled to SSP, or any contractual sick pay which may apply in this scenario.
In what circumstances could holiday be used by workers to cover periods of absence?
The normal rules on taking annual leave under the Working Time Regulations 1998 will continue to apply. Workers may wish to take annual leave as an alternative to scenarios where they would otherwise be on SSP or nil pay. Workers are entitled to take statutory annual leave during sickness absence but may not be compelled by the employer to do so.
Workers who are not on sick leave can be instructed to take statutory annual leave by their employer, provided that they are given the required level of notice.
Absence and pay: symptoms or diagnosis
What pay is an employee entitled to where they have mild respiratory symptoms but no diagnosis of Covid-19?
An employee in these circumstances may be treated as being on sick leave and be paid SSP or contractual sick pay. Although their mild respiratory symptoms may not have ordinarily resulted in them taking sickness absence, the fact that they have symptoms likely brings them within either the normal definition of incapacity, or the deemed incapacity provisions (if they fall within government guidance to self-isolate).
Where an employee is ordered to self-isolate or quarantined under the Health Protection (Coronavirus) Regulations 2020, what pay are they entitled to?
The law on compulsory detention or isolation during a pandemic differs between the constituent parts of the United Kingdom. In relation to the Covid-19 outbreak, the power to compulsorily detain and take other measures in England is contained in the Health Protection (Coronavirus) Regulations 2020 (SI 2020/129)(Coronavirus Regulations).
Where an employee is subject to mandatory quarantine or detention underpinned by a legal obligation to stay away from the workplace then it is likely that they would not be regarded as “able” to work, and so the implied right to wages would not be engaged (see above: Scenario 1: Employer suspends for reason not falling within government self-isolation advice). This assumes that they were unable to continue working remotely from the quarantine location.
However, it is likely that an employee who is forced to abstain from work because of compulsory detention or other restrictions made under an enactment such as the Coronavirus Regulations would be entitled to SSP under the deemed incapacity provisions in regulation 2(1)(b)(ii) of the SSP Regulations.
Where an employee is ordered to self-isolate or quarantined under the Coronavirus Regulations, can they continue to work from home/the quarantine location?
This would depend upon the terms of the order under the Coronavirus Regulations. If they have the facility to work from the location to which they are quarantined, and they are well enough to do so, then this should be possible provided that the restriction imposed upon them under the Coronavirus Regulations does not explicitly or implicitly prevent them from working.
The COVID-19 pandemic is continually changing and the government advice for employers is being updated as the situation develops. Employers should keep track of the guidance for employers from the following sources:
- Health Protection Scotland: COVID-19: Information and Guidance for Non-Healthcare Settings (applicable in Scotland).
- Public Health England and BEIS: COVID-19: guidance for employees, employers and businesses (applicable in England).
- Welsh Government: Coronavirus (COVID-19): employers and businesses guidance (applicable in Wales).
- WHO guidance: Getting your workplace ready for COVID-19 (applicable globally).
For information on the circumstances in which individuals should self-isolate see the following sources:
- Health Protection Scotland: Coronavirus (COVID-19)and NHS Inform: Coronavirus (COVID-19) (applicable in Scotland)
- Public Health England: COVID-19: stay at home guidance (applicable in England)
- Public Health Wales: Novel Coronavirus (COVID-19) – Self-isolation advice (applicable in Wales)