UK: Coronavirus - employee isolation and sick pay

 

By now, most employers will have thought about whether they should ask some, if not all, of their employees to stay home to attempt to contain any possible coronavirus (COVID-19) outbreak within their offices. The unpredictable spread of the coronavirus will urge people to make decisions in haste and will leave employers to think about the consequences later.

One of the issues that may crystallise as more and more employees are asked to stay home is: which type of pay are isolated employees entitled to?

You will most likely come across three possible scenarios:

1.  The employee is believed to have been in contact with the virus and asked to self-isolate by a medical professional.

2.  The employee is not believed to have been in contact with the virus but asked to stay home as a precautionary measure by the employer.

3.  The employee is not believed to have been in contact with the virus but chooses to self-isolate as a precautionary measure.

Entitlement to SSP will vary depending on which scenario you consider.

The Social Security, Contributions and Benefits Act 1992 and the Statutory Sick Pay (General) Regulations 1982, which regulate Statutory Sick Pay in the UK state that an employee who is absent by reason “of some specific disease or bodily or mental disablement” is entitled to SSP if they meet certain qualifying criteria.

If an employee has been asked to stay home pursuant to a self-isolation request or notice issued in writing by Public Health England to prevent the spread of the virus, by reason of it being known or reasonably suspected that he/she is infected or contaminated by or has been in contact with the virus (scenario 1), then they are legally ‘deemed’ to be incapacitated from work and are entitled to be paid Statutory Sick Pay (and any applicable contractual sick pay).

This does not affect those who merely choose to self-isolate because they are worried about contracting the virus or those told not to attend work by their employer as a precautionary measure (scenarios 2 and 3).

Where the employer requires employees to stay home as a precautionary measure (scenario 2), the employee should most likely receive full pay. This is because the employee is not incapacitated, and is willing to work – they are only staying home as a result of the employer’s actions. A lot of employees may also be able to work from home as normal during this time in any event.

Scenario 3, in which workers choose to self-isolate as a precaution, is a much more grey area. Arguably, those who are not required to self-isolate by Public Health England are not entitled to Statutory Sick Pay, as they are not incapable or deemed incapable of work. This is obviously an unsatisfactory state of affairs as it encourages a potentially contagious employee to attend work.

It is useful to note that the government has stated that statutory sick pay will be paid from the first day of sickness absence (and not the fourth as is usual) as part of emergency measures taken in respect of coronavirus. Home working is of course potentially an option for those whose jobs are suitable for home working but, self-evidently, not for everybody.

What about company sick pay?

What is certain is that the rate of SSP is £94.25 per week, so, that alone may not be sufficient to halt the spread of the virus as individuals choose to downplay their symptoms and work rather than to stay home and take a considerable cut in salary. Where company sick pay at full salary is offered, employees are more likely to self-report. Given the predicted Coronavirus economic downturn and impact on profitability, employers are advised to check the extent of their contractual obligations to pay company sick pay during Coronavirus related absences.

Please note that the UK government publishes regular updates on dealing with the Coronavirus and you should check the ACAS coronavirus advice guidelines for updates.

 

For further information and advice on sickness absence or for devising policy guidelines for your organisation to deal with Coronavirus workplace issues, please do not hesitate to contact:

Emmanuelle Ries, Managing Partner & Solicitor

ebl miller rosenfalck, London

e: er@millerrosenfalck.com  

t: +44 20 7553 9938

 

#UK #law #Coronavirus #COVID19  #employment  #sickpay  #quarantine  #WLNadvocate

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

© Miller Rosenfalck LLP, March 2020