There have been many legislative changes this year to do with Coronavirus (“Covid-19”), however, it would be fair to say that these have come, gone and changed so frequently that it would not be helpful to detail them all here. As such, below is a summary of the key ones that will have an ongoing impact (England only).
1. Statutory Sick pay (“SSP”)
The Statutory Sick Pay (Coronavirus) (Funding of Employers’ Liabilities) Regulations 2020 entitle employers with fewer than 250 employees (as at 28 February 2020) to apply to HMRC for reimbursement of SSP paid for sickness absence due to Covid-19 although this is limited to two weeks’ SSP per eligible employee.
The Statutory Sick Pay (General) Regulations 1982 were amended, to provide that an individual isolating themselves to prevent infection or contamination with Covid-19, in accordance with guidance published by Public Health England, would be deemed as incapable for work for SSP purposes. The regulations were further amended such that waiting days in Covid-19 cases are suspended. SSP also became available to those shielding or self-isolating.
The current position is that employees who receive a shielding notice from the NHS and who cannot work from home or make other arrangements are entitled to SSP or can be put on furlough leave.
Individuals who are self-isolating for one of the following reasons and therefore unable to work are also entitled to SSP:
- Experiencing symptoms of Covid-19 and self-isolating for 10 days.
- Living with someone (or in an extended or linked household with someone) who is isolating due to having symptoms of Covid-19, and self-isolating for a period of 14 days (or, if earlier, the end of the isolation period).
- Developed symptoms of Covid-19 while already self-isolating due to a member of the employee’s household having symptoms, and self-isolating for a period of 10 days (or, if earlier the end of the isolation period).
- Been advised through the contact tracing system that they have come into contact with someone who was, at the time, infected with Covid-19, and self-isolating for the duration specified in the notification.
- Tested positive for Covid-19 and self-isolating until the later of (1) 10 days from the date the employee first had symptoms or (if earlier) they first tested positive, and (2) the date that they no longer have symptoms of Covid-19.
- Living with someone (or in an extended or linked household with someone) who has tested positive for Covid-19, and self-isolating until the later of (1) 10 days from the date that the person who has tested positive first had symptoms or (if earlier) they first tested positive and (2) the date on which the person who tested positive no longer has symptoms of Covid-19.
- They have been advised to self-isolate at home for a period of up to 14 days before their admission date to hospital for surgery or another hospital procedure.
2. Annual leave
The Working Time (Coronavirus) (Amendment) Regulations 2020 came into force on 26 March 2020.
The regulations permit up to four weeks’ annual leave untaken due to the Covid-19 pandemic to be carried over to the next two leave years where it was not reasonably practicable to take it in the leave year “as a result of the effects of the coronavirus on the worker, the employer or the wider economy or society”.
The government guidance suggests that the following factors should be considered in terms of whether it is reasonably practicable to take the leave in the relevant leave year:
- Whether the business has faced a significant increase in demand due to Covid-19 that would reasonably require the worker to continue to be at work and cannot be met through alternative practical measures.
- The extent to which the business’ workforce is disrupted by Covid-19 and the practical options available to the business to provide temporary cover of essential activities.
- The health of the worker and how soon they need to take a period of rest and relaxation.
- The length of time remaining in the worker’s leave year.
- The extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the effects of Covid-19.
- The ability of the remainder of the available workforce to provide cover for the worker going on leave.
The guidance provides two examples of the application of the reasonably practicable test in the “Carrying annual leave into future leave years” section. Employers are not prevented from exercising their normal right to require workers to take leave on certain dates where it is reasonably practicable for the worker to take their leave.
ACAS have also provided guidance which identifies different factors. It suggests that it could apply where a worker:
- Is self-isolating and too sick to take holiday before the end of their leave year.
- Has been put on lay-off or furlough.
- Has been required to continue working and could not take paid holiday.
Arguably it is reasonably practicable for workers on lay-off or furlough to take annual leave, and this is supported by the government guidance which states that furloughed workers are unlikely to need to carry forward their statutory leave because they will be able to take it during furlough (unless their employer is unable to fund the additional cost of allowing them to do so). In our experience, most employers have asked furloughed employees to take a reasonable amount of holiday during absence due to furlough without issue. There are arguments that could be put forward by employees that holiday whilst on furlough does not permit them to relax and recuperate, perhaps if being on furlough has impacted on their mental health. However, in general, this is something to be considered on a case by case basis.
The government guidance states that employers should do everything reasonably practicable to ensure that the worker is able to take as much of their leave as possible in the year to which it relates. Where leave is carried forward, it is best practice to give workers the opportunity to take holiday at the earliest practicable opportunity.
This information is provided for guidance only and should not be considered specific legal advice. If you would like further advice or assistance in respect of any of the topics covered please contact Kelly Gibson on 0114 218 4307 or Kelly.Gibson@tayloremmet.co.uk