COVID-19 Guide – Managing Employee Absence

Social distancing and inability to work from home in combination with business closures, have led to a great deal of employee absence from work. Further, employers have a duty of care towards their employees which includes not exposing them to unnecessary risk. In this case, that may mean encouraging absence.

As a result, the UK government and the Advisory, Conciliation and Arbitration Service (ACAS) have announced temporary directives and guidelines for employers to cope with employee absence in connection with COVID-19. In order for employees to know how to communicate with their employees, we have outlined and categorised the different directives below.

Care of dependants

As of Friday 20 March, all schools, including private schools, further education colleges, sixth-form colleges and early-years care providers, will be closed until further notice. This means a great deal of working parents will be unable to work in order to care for their dependents. Normally, individuals might leave their children with the grandparents in order to continue working as usual. However – since elderly have been instructed with further social distancing measures by the government, this might not be an option either.

The right to take time off to care for a dependant is intended for emergencies only and it is up to the employer to decide whether to allow it, though the employee can subsequently make a complaint to the employment tribunal if he/she feels unfairly refused time off.

What are your options?

Employees are entitled to a reasonable amount of time off for dependants in an unexpected event or emergency, which could apply to the current situation. A reasonable amount differs depending on the situation, but for cases in connection to Covid-19, this time frame is likely to be extended.

An employer does not have to pay for this type of time off unless stated so in the employment contract or workplace policy. First and foremost, contracts must therefore be reviewed before considering what type and duration of leave is suitable. Eventually, other arrangements might be sought in consent between the employer and employee, such as taking annual leave. Our HR team can advise you in what type leave is suitable for your situation.

If the employee has to care for a dependant with coronavirus symptoms, the employee is entitled to Statutory Sick Pay as a minimum.

Self-isolation

What does the government say?

Everyone showing symptoms of COVID-19 are advised to self-isolate for 7 days. If someone within the household has tested positive for the virus, everyone must self-isolate for 14 days. If a member of a self-isolating household was not showing symptoms during this 14 day period of self-isolation, however, they develop symptoms during this time, they must ensure that they self-isolate for 7 days from when their symptoms started, i.e. if they become ill on day 10 of the 14 day isolation, they must self-isolate for a further 7 days from the start of their symptoms.

Those individuals who qualify as vulnerable, meaning they have an increased risk of severe illness, should be practising social distancing for a 12 week period. Among these groups are pregnant women, people with long-term health conditions and/or weakened immune system, and those who care for someone with such a health condition.

According to UK law, employees do not have to show proof of illness within their first seven days. After that it is up to the discretion of the employer, though the government has advised employers to loosen their constraints on showing evidence of illness.

What are my options?

If the employee feels fit to work, they should be given the opportunity to work from home whenever possible. This also means the employee should be paid their normal salary. If the employee is too sick to work, he/she is entitled to Statutory Sick Pay (see below). In some cases, the employee might wish to take paid annual leave rather than sick pay, though employers cannot enforce them to do so.

Statutory Sick Pay

Statutory Sick Pay is a minimum level of pay during illness, which employers are liable to pay at a rate of £94.25 per week. This is only available for employees with an average weekly earning above £118.

From 13 March, employers must pay SSP from day 1 of self-isolation on the basis of the advice published by Public Health England. For cases related to COVID-19, small and medium sized businesses with less than 250 employees will be able to reclaim SSP for a minimum of 2 weeks per employee. This regulation does not apply to those able to work from home.

Who is entitled to SSP?

Employees and workers who need to self-isolate because

  • They have coronavirus
  • They have coronavirus symptoms
  • Someone in their household has coronavirus symptoms
  • They have been told to self-isolate by a doctor or NHS 111

Employees who are stuck abroad

What does the government say?

The UK government has advised all non-essential travel for British people worldwide, announced on 17 March and effective for the upcoming 30 days. The pandemic has caused many international borders to close and cancelling of flights. For British people already abroad, they should listen to local authorities and follow the Foreign travel advice of their country. 23 March, the Foreign Minister further advised all British travellers to come back to the UK as soon as possible.

What are my options?

Assuming the employer has unsuccessfully tried to find ways of getting back in the country, there are number of ways to cope with the situation. In agreement with the employee, you can use their annual leave, depending on the length of the absence and their remaining holiday. If you’re able to give them the required notice, which is twice the duration as the actual time off, you may also enforce annual leave. There is also the solution of working remotely, though the employee may not insist this if it is not a viable solution.

In these extreme cases, finding other solutions by negotiating with the employee might be the answer. He/she might be open to a period of unpaid leave, use banked time off in lieu, or agree to any other type of appropriate leave.

If you’re unsure of what type of leave is appropriate, or you need a middle hand in negotiations between employer and employee, our HR department is here to help.

Employees who do not want to go to work

Some employees might feel emotional distress about coming to work due to the risk of catching the virus. The Advisory, Conciliation and Arbitration Service (ACAS) has advised employers to listen to their employee’s concerns and take necessary steps to protect everyone.

What are my options?

If the employee is unable to work from home, the employer can suggest arrangements to meet the concerns of their employees, such as offering a taxi to avoid using public transport or flexible working hours.

If a worker is still unwilling to go to work because of COVID-19, the individual can suggestively take annual leave if they give sufficient notice. We suggest, the employer tries to meet the needs of the employee to their best abilities. If unsuccessful, it is implied by employment contracts that non-valid reasons for refusing to attend work, however, can lead to disciplinary action.

What about if I need to close the workplace?

As of 23 March, the UK government have instructed all non-essential businesses and premises to shut down. For businesses suffering due to COVID-19, the UK government has launched a number of financial measures for businesses to avoid unemployment. Our HR team has also given their advice on how to cope with the sudden downturn.

For many, this is a difficult time with emotional distress and fear. As an employer it is important to maintain communication with the employees and make sure they know how to get I touch with their employer when needed. In line with recommendations from ACAS, we advise all employers to regularly check in on their employee’s health and wellbeing.

How can Goodwille help?

Goodwille’s HR team are here to answer your questions in these continuously changing and critical times. Employment matters in regards to COVID-19 where we can assist include:

  • Oversee employment contract and workplace policies
  • Recommendations in your available options in terms of governmental support as well as restructuring of employees
  • Advice and support in employee communication

Do not hesitate to get in touch with our HR team with any further questions or concerns.

Here’s why your foreign employment contract will not protect you in the UK

Without stating the obvious, employment contracts are written to follow the laws within the country they are drafted. There are vast differences between employment laws around the world, so we strongly advise using locally drafted employment contracts.

Choosing to use an employment contract which is drafted for a foreign market leaves you vulnerable as an employer and employee in case of future disputes. Where everything might seem good to begin with, it does not always end up that way.

Here are three differences between UK & international employment contracts you need to consider:

Disciplinary & Grievance

It is mandatory for UK employment contracts to have clauses that refer directly to the disciplinary and grievance policy, i.e. you must state that you have a policy and where it can be found, also that the disciplinary and grievance policy does not form part of any contractual agreement. It may seem direct to address this issue when your employee has only just joined, but this is a legal requirement for the UK and the employee is likely to expect it to be part of their agreement.

The disciplinary and grievance policy must be fair & clear, but stored separately to the contract of employment.

Absences

Holiday allowance varies from country-to-country when it comes to statutory holiday and public holidays. Also the way that holiday is treated, i.e. if it is accrued during the year or paid in advance is another international variance. Sickness also varies when it comes to statutory sick pay and statutory sick leave. Using an employment contract which is not drafted for UK law is therefore likely to not only contain incorrect information, but risk leaving the employee with the incorrect holiday and sickness entitlement, which could also land you in hot water as the employer.

Notice period

If an employee is not performing, and the decision is made to terminate the agreement then a non-UK employment contract may leave you vulnerable should the employee raise a dispute. The garden leave and PILON (payment in lieu of notice) process varies from country-to-country and without the correct clauses you are likely to be left exposed. It is not uncommon for UK employees to seek legal advice when faced with a termination of their contract, so getting it right from the off is vital for all involved.

Typically international employment contracts can be just a couple of pages long, whilst UK employment contracts are in excess of fifteen pages and contain clauses and appendices – the agreement will then be underpinned by a staff handbook which contains information about company policies and procedures.

Employment contracts are designed to protect both the employer and the employee in case of future disputes. Goodwille’s HR team are experts on UK HR and employment law and through our HR service offering we can assist with everything that concerns your business and your employees. To ensure you are covered, or to review your existing employment contracts, simply contact us today.