If an employee is advised to self-isolate to avoid the risk of spreading coronavirus, are they entitled to sick pay?

Current government guidance is that anyone who has a high temperature, a new continuous cough and/or a loss of, or change in, their normal sense of taste or smell should stay at home (i.e self-isolate) for at least ten days from the onset of symptoms. If they live with others, everyone in the household should stay at home for 14 days, even if they have no symptoms.

People may also be advised by the NHS test and trace service to self-isolate if they have had close recent contact with someone who has coronavirus (COVID-19).

Employees who are staying at home in accordance with government advice or advice from the NHS test and trace service, are entitled to statutory sick pay (SSP), even if they are not ill. The Government has introduced temporary legislation with the effect that individuals who are unable to work because they are self-isolating are deemed to be incapable of work for the purposes of SSP.

People who are required to self-isolate after travelling abroad are not entitled to SSP, unless they are ill.

Prior to 1 August 2020, employees who had been advised to “shield” due to being at very high risk from coronavirus because of certain underlying health conditions were entitled to SSP. From 1 August 2020 (or 16 August 2020 in Wales), the advice to shield is “paused” and these employees are therefore not entitled to SSP on the basis that they are shielding.

How should an employer deal with annual leave requests where the employee would be required to quarantine after travelling abroad?

Under coronavirus (COVID-19) control measures, people arriving in the UK from some countries will be required to self-isolate for 14 days. People who arrive from an exempt country will not be required to self-isolate (if they have not visited another country in the preceding 14 days) and some travellers are exempt, for example some international commuters. There are some differences to the rules on who must self-isolate in Northern IrelandScotland and Wales.

If an employee requests annual leave to travel abroad in circumstances that would require them to self-isolate on their return, the employer should consider whether or not this period of quarantine can be accommodated. If the employee would be working from home during the quarantine period, there is unlikely to be an issue as they can continue to work while self-isolating. If the employee cannot work from home, the employer could ask them to extend their annual leave request to cover the period of self-isolation, if they have enough annual leave available.

The employer would be entitled to refuse the employee’s request for annual leave if it cannot accommodate the length of the employee’s absence, or if the employee does not have sufficient annual leave to cover the whole period.

The employer should take into account the employee’s reasons for travelling abroad, as there may be exceptional circumstances that require them to travel. The employer could agree to a period of paid or unpaid leave to cover the quarantine period, for example where the employee is dealing with a family emergency.

Is an employee entitled to their normal full pay during the notice period if they are made redundant while on furlough? 

Where an employee who is on reduced pay during furlough is given notice of redundancy, the question arises as to whether they should be paid their normal full pay or their furlough pay during the notice period. There are a number of factors that make this a complex question.

One relevant factor is whether the employee is “ready and willing to work” during the notice period (ss.87 to 89 of the Employment Rights Act 1996). If they are, they are entitled to be paid their normal pay for their normal working hours during the notice period. However, this right does not apply if the employee’s contractual notice exceeds their statutory notice entitlement by one week or more. Where the right does apply, the question of whether or not an employee on furlough is “ready and willing to work” is likely to depend on their individual circumstances. Ultimately, this may be something to be decided by an employment tribunal.

The Government has introduced Regulations on the calculation of a normal week’s pay for employees who have been furloughed. The Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 (SI 2020/814), which came into force on 31 July 2020, provide that a week’s pay should be based on employees’ normal working hours and any reduction in pay due to furlough should be disregarded. The Regulations prevent employees without normal working hours being disadvantaged as they confirm that their average pay over the previous 12 weeks should be based on their full pay (as calculated for the purpose of the claim under the Coronavirus Job Retention Scheme) rather than any reduced furlough pay.

Where the right to a normal week’s pay during the notice period does not apply, ie where the employee is not ready and willing to work, or where their contractual notice period exceeds the statutory minimum notice by a week or more, arguably the employer can continue to pay them at the furlough rate, without topping this up.

The safest option for an employer, to avoid any dispute, would be to pay the employee at their normal, pre-furlough rate. Where an employer decides to continue to pay the reduced furlough rate, it should be aware that this may be challenged by employees and it is not yet known how tribunals will approach this issue.

What should the employer do if an employee is reluctant to return to work as the coronavirus lockdown is lifted? 

Employers should recognise that many people will naturally be nervous about leaving lockdown and increasing their risk of contracting coronavirus (COVID-19). If an employee is reluctant to return to the workplace, the employer should explore their reasons and try to address any specific concerns they have, taking their individual circumstances into account.

An employer should ask employees to attend the workplace only if it has taken all reasonably practicable steps to reduce the risks from coronavirus. It should consider allowing employees to work from home instead of returning to the workplace. Employers should communicate clearly with employees about the measures that have been put in place.

If an employee is unable to return to work because their usual childcare arrangements are not available due to the impact of coronavirus, their employer should explore other options, such as adjusting the employee’s role to enable them to work from home, or keeping them on furlough. If an employee has health concerns that make them vulnerable from coronavirus, the employer should also consider alternatives to requiring them to return to work, taking into account the duty to make reasonable adjustments, which is likely to apply in many cases. Again, it may be appropriate to keep these employees on furlough for longer than other employees.

If an employee has concerns about using public transport to get to work, the employer should discuss with them if there are options to allow them to travel at a quieter time, by changing their start time for example. The employer must comply with the duty of mutual trust and confidence, and so should consider if it is fair and reasonable to expect the employee to use public transport. The fact that some employees are prepared to use public transport does not necessarily mean that it is reasonable to expect others to do the same.

If the employer is confident that it is reasonable to instruct the employee to attend work, after putting in place measures to control the risks and exploring the employee’s individual circumstances, the employer must consider its options. One option is to ask the employee to agree to a period of unpaid leave. If they do not agree to this, the employer may decide to withhold their pay in any event. The employer also has the option of taking disciplinary action leading to dismissal, although this option is likely to present more of a risk, in terms of tribunal claims and reputational damage, than withholding the employee’s pay.

Is an employer obliged to wait a certain period of time before re-employing an employee who was dismissed for redundancy?

Once employment has terminated by reason of redundancy, if the economic situation suddenly changes and the employer needs to employ someone, it may re-employ the redundant employee. There is no obligation on it to wait a certain period of time before offering re-employment to that individual. The employer is under no obligation to offer the redundant employee their job back; it is entitled to recruit someone else instead.

When assessing whether or not there was a genuine redundancy situation for the purposes of the fairness of the dismissal, an employment tribunal will look at the entire period from the start of redundancy consultation until the employee’s employment terminates on the ground of redundancy. If the employer engages someone else in a particular role shortly after making an employee redundant from that role, this may cast doubt on the genuineness of the redundancy should the employee challenge it by bringing an unfair dismissal claim. In these circumstances, the employer would need to demonstrate that the redundancy situation was still subsisting at the time the redundant employee was dismissed and it was only after that date that its economic position changed.

If the employer does wish to re-employ the redundant employee but also wants to ensure that their continuity of employment is broken by the intervening redundancy, there should be a clear calendar-week break (starting on a Sunday) between the termination of one period of employment and the commencement of the new period. Any continuity of service that there might otherwise have been will normally be broken, provided that there has been no agreement between the parties to preserve continuity and the new contract makes clear that it is a new period of employment. To err on the side of caution, a minimum two-week break in service would be advisable.

The position is different if the offer of new employment is made before the original employment has ended, ie if the employee is given notice of redundancy but, before the employment ends, the employer offers them a new job. In these circumstances, continuity will be preserved if the new job starts no more than four weeks after the redundancy date.

For statutory redundancy payment purposes, continuity of employment is broken where a redundancy payment has been paid to the employee and the employee is then re-engaged under a new contract of employment. This prevents the employee’s service counting twice for statutory redundancy payment purposes.