COVID 19 and frequent questions Part 1 – Wages or Statutory Sick Pay

We have been receiving enquiries from panicking employers and worried employees regarding their rights. With this in mind, I thought I would prepare a brief note outlining a standpoint on some key questions that are being asked.

The Statutory Sick Pay (SSP) aspects of an employer’s duties are better set out through the government guidelines but from a legal prospective an employee must be absent from work due to incapacity. However, the point at which an employee is forced to request SSP due to coronavirus will, by definition, be difficult to meet the incapacity requirement if they are not in fact ill from COVID 19. The way that the government has got around this is by introducing Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 (Coronavirus Amendment Regulations) and 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.”

Homeworking is the way forward in most cases for employers but there have been a few questions about whether an employer is able to force this or even tell them that as there is no symptoms or diagnosis then refuse to work from home. Firstly, from an employment law prospective, contractual terms whether implied or expressed are paramount to discussion and whether the employer has an expressed right to insist on matters. The trump card is that the employer has to consider the health and wellbeing of its employees and an identified risk from employees which are set out in the government guidelines on who is considered as a high risk category means that they have a duty to send them home and also a duty to accept reasons why he employee may insist on staying away.

Lastly, the term of an arrangement to stay away from work which is agreed by the employer and employee will be whether to provide the employee with a status as being on sick leave (because they have actually contracted the virus) or whether they are to be considered as suspended pending an outcome of the outbreak or because they are high risk. Does this then mean that the employer either does or does not have to pay the employees’ wages in full, part or not at all? Unless there is an expressed provision in the contract, it is likely that if an employee is ‘suspended’ on health and safety grounds but it is not on the government list of advice (so would just be the employer being cautious) then the employer would have an implied duty to pay wages. This of course varies depending on the status of the employee such as casual workers etc. Even more than this, if the employee is willing to work or is able to perform its duties then again there is an implied duty for the employer to pay wages.

To conclude, if an employee is unfit to work then SSP applies as per the regulation listed above. If an employee is fit to work but is self-isolating or the employer has insisted on this arrangement, then they are deemed as suspended and the implied terms apply, and pay is expected. All of the above is all dependant on the contract of employment itself thought so ensure you contact us for further clarification if it is still unclear. Please remember that as an employer you have a duty of care which you owe to your employees so make sure you consider all options and do not leave yourselves exposed to potential backlash after this pandemic is over.

See other articles which we have put together on different areas of law in an attempt to answer questions related to the Coronavirus and the law. Also, please do not hesitate to phone or email us if you have further questions. We are still working, even if we are constrained to our homes.

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