Employing at a time of Crisis

James Simpson, head of employment at Blaser Mills Law, considers the staffing issues behind COVID-19.

With the number of coronavirus [COVID-19] cases continuing to climb, the spread of the virus is so fast and wide-reaching that it will likely affect most, if not all, employers around the world at some stage.

Knowing where you stand legally during these times of uncertainty can be overwhelming, but it’s crucial that you take the right steps in order to lessen the potential for disputes. Here are some of the main requirements you need to consider in order to protect yourself.

Understanding how to pay your staff

Any of your employees who are still working are entitled to Statutory Sick Pay (SSP)  if they need to self-isolate. This applies not only if they have been diagnosed with coronavirus, but also if they have any of the symptoms, for example a high temperature or new continuous cough, or if someone in their household has coronavirus symptoms. New measures mean SSP is now payable from day one instead of day four for affected individuals. If an employee or worker cannot work, they should inform you as soon as possible with the reason.

It’s worth noting that, currently, employees may not be able to provide you with a sick note as usual, and you should be flexible about this. They can self-certify for the first seven days, following which a notification via NHS 111 will need to be enough.

Reducing staff numbers

Many firms are experiencing a drastic decline in business as a result of COVID-19. Customers socially distancing may lead to a fall in sales and employees self-isolating could slow production. As a result, you may need to consider reducing working hours or staff numbers.

You must decide between short-time working and lay-offs, and it is crucial to understand the difference between both and what they could mean for your business and staff. ‘Short-time working’ is when employees are provided with less work and less pay for a short period. ‘Lay-offs’ are when employees are not provided with any work or pay for a short period but are kept on as employees.

These are both temporary cost-cutting measures you may use when there is not enough work to go around. Short-time working and lay-offs can help you avoid dismissals or permanent redundancies, whilst reducing the burden on your business. It’s important to note that if there is no clause permitting lay-offs or short-time working in an employee’s terms, using these measures will be a breach of contract, and the employee will be entitled to resign and claim constructive dismissal.

Utilising government support

The Government Job Protection Scheme was recently announced by Chancellor Rishi Sunak in a bid to protect jobs in the UK. It means the government will reimburse up to 80 per cent of ‘furloughed workers’ wages to a cap of £2,500 a month, per employee, with payments being backdated to 1st March 2020. As an employer, you can top up the 80 per cent if you wish, but you do not have to do so.

Furloughed workers are employees who you have asked to stop working as you cannot cover their salaries, but who you have not made redundant.

Your employees will not automatically be designated as furloughed workers – you still need to comply with employment law and contractual provisions when ‘laying off’ the relevant employees. This means that you cannot just impose the change on an      employee unless there is a right to vary in their employment contract. You may need to go through the normal redundancy procedures of identifying and consulting with at risk employees, including the collective consultation requirements where more than 20 employees are affected.

Seeking expert advice

This is a highly unusual time affecting businesses and working practices considerably, but by taking the right steps and performing strong due diligence, you can minimise liability issues.

If in doubt, seeking expert guidance can help ensure you are approaching things in the right way, as well as save time and money in the long run.  Make sure you choose a respected lawyer who understands employment law and the many nuances of your obligations. The correct legal counsel can go a long way in ensuring that once the worst of the pandemic is over, you come through the other side unscathed.


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