The following guidance advises how to deal with employment issues caused by the current outbreak of coronavirus, also known as COVID-19.

Employment guidance

Please note that, as the coronavirus situation is changing on a daily basis, Members are advised to check the latest official advice from the Scottish Government, NHS Inform and Health Protection Scotland (HPS).

We also advise reading the simple steps employers should consider by the Advisory, Conciliation and Arbitration Service (Acas), including sickness absence and pay. A new helpline can also supply tailored advice for Scottish businesses.

Now we have established this, here are 10 of the most important points to consider as the pandemic continues to take hold.

1 / What should I do if I can’t provide work due to coronavirus, e.g. site shutdown, material shortage etc?

  • The Coronavirus Job Retention Scheme allows for employees to be furloughed, or put on temporary leave of absence where they do not work and do not receive pay, but are retained on your books to be brought back in when you need them. Further information from SELECT on the Coronavirus Job Retention Scheme can be found here.
  • Employers who do this will be able to obtain a grant from the Government to cover 80% of “furloughed employees” wages, to a maximum of £2500 per employee per month.
  • All employers can access it; there is no restriction on size or type.
  • The Chancellor has stated he hopes the first grants will be paid by the end of April 2020, and they will be backdated to 1 March 2020. The scheme is initially intended to run for three months but may be extended.
  • Theoretically, any employee can be furloughed, but they do need to be on PAYE in order for you to be able to claim the grant for their wages.
  • There does not appear to be a maximum or minimum number of employees who can be furloughed, and there is no requirement to pay the remaining portion of their wages, but you can if you wish.
  • If a worker is ready, willing and able to work but you are unable to provide work for them, they would generally be entitled to full pay, unless they have been laid off in accordance with a contract or an agreement.
  • There is no formal provision within the SJIB National Working Rules for Guarantee Pay. Employers in the industry have for a long time practised Temporary Lay-off and/or Short-time Working. Employers who find themselves in this situation are advised to contact the Employment Team at SELECT on 0131 445 5577.
  • If the contract of employment does not explicitly allow for temporary lay-off, you may be able to introduce and implement Temporary Lay-Off, after reaching an agreement with the employees affected. Alternative arrangements such as taking annual or unpaid leave may also be agreed with employees.
  • Please note that the statutory limit on a day’s pay for the first five days when no work is provided under temporary lay-off will increase from £29 to £30 from 6 April 2020.

 

2 / What can I do to minimise the risk of coronavirus?

  • Keep everyone updated on actions being taken to reduce risks of exposure in the workplace.
  • Ensure your records of all workers, clients and supplier contact details, including workers’ emergency contact details, are up to date.
  • Make sure all your workers know how to spot symptoms of Coronavirus and are clear on any relevant processes and procedures, e.g. sickness reporting and sick pay, in case someone in the workplace develops the virus.
  • Make sure there are clean places to wash hands with hot water and soap and encourage everyone to wash their hands regularly.
  • Avoid sharing tools and always clean equipment before and after every job.
  • Where possible, provide hand sanitiser and tissues for staff and encourage them to use them – particularly in areas where soap and water may not be easily accessible
  • Consider if protective face masks might help for people working in particularly vulnerable situations, or if workers request them.
  • Consider if any work-related travel is essential.
  • Inform all workers of what to do if instructed to self-isolate, e.g. how they should notify you, their employer.
  • Advise workers that the latest government guidance on Coronavirus can be accessed via NHS Inform, and that they should not contact their GP about any relevant mild symptoms they may be experiencing.
  • If the symptoms become unmanageable, contact 111 for further advice.
  • Find out more about the symptoms of coronavirus here.

 

3 / How can I minimise the impact of coronavirus on my business?

  • For those whose jobs allow it, put in place plans for those who can work from home.
  • Investigate if employees need access to any additional equipment, e.g. those with a company laptop could take them home.
  • Consider if you would be prepared to contribute to the additional costs of those who may need to work from home, e.g. heating, internet etc.

 

4 / What do I do if I’m notified that a worker has coronavirus?

  • Assess the risk of others at work having contracted it and advise them of any action they may need to take.
  • Inform any clients, suppliers, contractors, etc. whose workers and/or customers may have been at risk of infection by the worker.
  • Consider and discuss with workers the possibility of working from home if their job allows it and if they are well enough, e.g. towards the end of their period of absence.

 

5 / What about payments to the affected worker?

  • A worker who is absent from work because they have contracted the virus would be entitled to Statutory Sick Pay (SSP).
  • They may also be entitled to any company sick pay in accordance with the company sick pay rules, e.g. additional sick pay is payable after two weeks of sickness. absence have elapsed for employees covered by the SJIB National Working Rules.
  • The UK Government has recently announced the following changes to SSP:
    1. Workers will be entitled to SSP from the first day of absence instead of after three waiting days.
    2. Fit Notes for absence due to coronavirus can be issued by calling 111 instead of physically going to a GP.
    3. Employers with fewer than 250 employees will be refunded the SSP costs for those absent from work due to coronavirus for 14 days.
  • If you choose to pay more than the worker’s statutory or contractual sick pay entitlement, ensure that you state, in writing, to the whole workforce, that the payment is discretionary, will be kept under review and may be withdrawn with or without notice at any time as the situation develops.
  • You may also wish to state that only those with a qualifying period of service of, for example, six months, will receive the payment and limit it for a set number of days.
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6 / What should I do if a worker self-isolates on medical advice?

  • The UK Government has stated that workers self-isolating in accordance with NHS 111 or other medical advice should receive any SSP due to them. Click here for guidance on SSP entitlement.
  • You may also discuss the possibility of working from home for those whose jobs allow this and who are well enough to do so.
  • Find out more about self-isolation here.

 

7 / What do I need to know if an employee needs time off work to look after someone else? 

  • Employees are entitled to time off work to help someone who depends on them in an unexpected event or emergency, e.g. if a child needs looking after because their school has closed unexpectedly. This is known as dependant’s leave.
  • There’s no statutory right to pay for dependant’s leave. However, since 13 March 2020, workers caring for others within the same household who display coronavirus symptoms and have been told to self-isolate are entitled to SSP.
  • If you choose to pay for dependant’s leave other than any legal entitlement to SSP, you’ll need to be consistent and non-discriminatory for all employees who may require such leave.
  • As with discretionary sick pay, if you choose to pay dependant’s leave, state in writing to all employees that the payment is discretionary, will be kept under review and may be withdrawn with or without notice at any time as the situation develops.
  • You may also wish to state that only employees with a qualifying period of service, e.g. six months, will receive the payment and limit it for a set number of days.
  • The amount of time off an employee takes to look after someone must be reasonable for the situation, e.g. they might take a couple of days to arrange alternative childcare but if require more time, they may choose to take it as annual leave.

 

8 / What if a worker doesn’t want to come to work, despite having no symptoms, and not caring for someone in the same household who displays coronavirus symptoms and has been told to self-isolate?  

  • Individuals and their employer have a contract. If an employee chooses to remove their services and has no confirmed sickness, then they are effectively withdrawing their services from their employer. The employer would therefore be under no obligation to pay in this case.
  • In employment contracts there are implied terms that employees should follow their employer’s reasonable instructions. If employees refuse to perform these tasks, they are in breach of contract. It depends on the exact circumstances but there may be grounds for following normal absence management processes.
  • It all boils down to what is reasonable. Are the employee’s actions reasonable dependent on the degree of risk? Are they more vulnerable due to an existing health condition, age, pregnancy, mental health condition, caring responsibility etc.?
  • Listen to their concerns and try to come to an agreement, e.g. working from home. If this isn’t an option, you may be able to agree that they take the time off as holiday or unpaid leave.
  • Remember that this is an exceptional event that requires both employers and employees to exercise caution and to take reasonable steps to prevent the risk and spread of the virus.
  • Alongside employers’ statutory duty of care for people’s health and safety and to provide a safe place to work, there’s also a strong moral responsibility to ensure that employees feel safe and secure in their employment, so you should take people’s concerns seriously and continue to communicate.

 

9 / What should I do if a worker seeks my advice on whether to attend work?

  • Be cautious. If a worker is ready, willing and able to work and is instructed by the employer not to attend work, they may be entitled to full pay.
  • Where there is risk of spreading the infection if the worker returns to work, you may wish to refer them to their obligations as a worker under the health and safety legislation, rather than explicitly instruct them not to attend work in the first instance.
  • Workers should also be informed that disciplinary action may be taken against them if they fail to take reasonable steps in accordance with their health and safety obligations.

 

10 / Employee v worker

As you’ll see, this guide refers to both ‘employees’ and ‘workers’. This is because certain provisions apply only to employees – i.e. those with a contract of employment – whereas other provisions apply to the wider group of workers defined as working under:

  • a contract of employment, i.e. an employee, or
  • any other contract where the individual undertakes to perform personally any work or services for the other party of the contract, where the other party is not by virtue of the contract a client or customer of any profession or business undertaking carried on by the individual.

Further information can be found here.