Autumn employment law: legislation update and FAQ

In the latest employment law update, which was held on the 7 October 2020, our employment law experts delivered a live Q&A on the latest developments in employment law. 

In this article, we answer some of the key questions relating to these changes.

Your questions answered: 

1. An employee tested positive and reported to track and trace that he had come into to close contact with a colleague who has since been contacted by track and trace and told to self-isolate.  We believe he hasn't been in close contact during work. Can we do anything?
   
   It is an offence to provide false information to the test and trace service. However, it would be difficult to establish that the information was false given that it is a work colleague who has been named. In the circumstances, both employees would need to self-isolate.
    
2. We pay employees who are self-isolating their full pay (limited to a one-off period of 14 days per employee).  Can we claim the SSP amount back? 
   
   Yes – but only if pay was processed through payroll to show that you paid SSP topped up to full pay.
    
3. If we know that an employee has travelled and stayed within an area with local restrictions and has breached the local restrictions can we enforce any quarantine on their return to work?
   
   Preventing an employee from attending work in these circumstances would be difficult to justify. If you did suspend the employee, it appears to be on the grounds of a medical suspension during which they would be entitled to full pay. 
   
   It might be better to ensure that employees are aware that if they commit offences outside of the workplace that impacts the business or detrimentally affect the reputation of the business it may lead to disciplinary action being taken up to and including dismissal. They should also be reminded that they will be expected to keep to the Covid19 secure workplace guidance and to be particularly careful that they maintain social distancing.
    
4. Regarding self-isolation, if someone had to go away for business or holiday and other family members did not go.  what impact does that have on the remaining household? Do they also have to self-isolate or do they just self-isolate if there is either a positive test or the returning family members develop symptoms?
   
   The other members of the household do not need to self-isolate unless they also travelled or there is a positive test result, or they develop symptoms of coronavirus.
    
5. Have the employees got to have remained on furlough up to Oct 31st in order for the employer to be able to claim the £1000?
   
   No. The employer will be able to claim the Job Retention Bonus in respect of any employee who was furloughed at any time and for whatever period just so long as they have remained continuously employed up to the 31 January 2021.
    
6. An employee has been on furlough since March, continued due to his confirmed shielding status.  The company have accepted the cost.  At the end of furlough, we can transfer to SSP?  Also, are we able to reclaim the first 2 weeks of SSP under the new regulations?
   
   You can only transfer the employee to SSP if (a) the employee lives or works in an area with local restrictions in place, including advice to ‘shield’, and (b) the employee has been advised to shield because they are at very high risk of severe illness from coronavirus. 
   
   This was because the general shielding advice was ‘paused’ as of 1 August. Prior to that anyone who had been advised to shield as extremely clinically vulnerable would be able to qualify for SSP.
   
   You can reclaim up to 2 weeks’ SSP if all of the following apply:
   
   - your employee was off work because they had coronavirus and were self-isolating or shielding
   - your PAYE payroll scheme started on or before 28 February 2020
   - you had fewer than 250 employees on 28 February 2020
    
7. We’ve added to our annual leave policy that if an employee goes to a foreign country, they MAY need to take extra annual leave or unpaid if not enough annual leave accrued.  Is this ok?
   
   Yes. You should take steps to ensure that all employees are aware of this change in policy.
    
8. If the employee has been on SSP for 8 weeks prior to 1 November, are they still eligible for JSS when they return? 
   
   Yes.
    
9. If an employee was told to self-isolate by NHS trace, and they claim for SSP. Then weeks later they test positive can they claim for another 2 weeks? Can you claim for more than one SSP relating to COVID-19? 
   
   The employee will be entitled to SSP. 
   
   However, the employer cannot reclaim the SSP more than once for the same employee.
    
10. Can an employer reasonably request an employee not to go on holiday in a location which will oblige the employee to quarantine for 14 days after returning?
    
    Yes, the employer can make this request. However, the Government list of ‘safe’ countries changes frequently so an employee may not be able to comply through no fault of their own. Where the list changes after the employee has gone on holiday it would likely be regarded as unreasonable to take action against them.
     
11. JRS £1000 bonus question - is this payable for all those on furlough - even those furloughed for reasons of childcare rather than no work being available?
    
    Yes. They will qualify if they meet the other conditions.
     
12. Can evidence be requested for COVID related symptoms to support payment either Company sick pay or SSP? 
    
    A sick note or online note should be sufficient for the purposes of qualifying for SSP. Your policy may provide for something more in respect to company sick pay.
     
13. What advice can you give around absence triggers and instigating procedures in the current climate? 
    
    It would really depend on the particular circumstances of the business and the resources available. Factors would include the impact sickness absences were having on colleagues and the ability of the business to meet targets. 
    
    It would normally be expected that you would follow the guidelines in the absence management policy if there is one. Given the current circumstances, it may be reasonable to take a more lenient approach to absences particularly where there has been a localised outbreak that has affected several members of staff.
     
14. What advice can you give for staff saying that they need to self-isolate due to members of their family, can we request evidence to support this absence? 
    
    They should be able to provide a note or online evidence that they are required to self-isolate.
     
15. Children sent home due to positive COVID-19 bubbles - can we ask for evidence of this? 
    
    This should not necessarily prevent the employee from attending work. However, if they are asking for time off due to childcare issues it should be taken into account that there is a statutory right to take time off to care for dependants and they can request unpaid parental leave. It would be reasonable to request that evidence is provided to support an explanation for their absence or their request for time off.   
     
16. What can employers do if employees are breaching rules of social distancing/rule of six etc in their personal life and evidence is on social media? Is this a disciplinary offence?
    
    Whilst this is conduct outside the workplace and not in work time it might still give grounds to take disciplinary action. There is an implied duty that an employee should take reasonable care for their health and safety and that of anyone who may be affected by their acts or omissions while at work.
    
    In addition, the photos on social media may damage the employer’s reputation where they may be accessed by an employer's contacts and customers.
    
    Where the employer has issued clear guidelines to employees on social distancing in and out of the workplace it might also amount to a failure to follow reasonable instructions.
    
    There is also a potential criminal element to the conduct. 
    
    Whether disciplinary action should be taken will depend on the particular facts including the nature of the employer's business, the employee's role, and the restrictions that applied at the time of the employee's actions.
     
17. Does an employer need to see evidence of a negative test from an employee before they return to work if they were absent because of possible COVID-19 symptoms (i.e. had a temperature or cough but then asserted it was caused by a different illness)?
    
    Government guidance states that if an employee has symptoms they should isolate and take a test as soon as possible. 
    
    That would suggest that an employer could refuse to allow an employee to return to work before they have got a negative result.
    
    However, establishing whether someone has had symptoms will be largely dependent on what the individual states. An employee may be heard coughing but may blame it on smoking or even a common cold. 
    
    If an employee has been off sick for a couple of days and then returns it will depend very much on the particular circumstances as to whether it would be reasonable to require that they provide a negative test result. If there had been a clear indication that the employee considered they did have Coronavirus symptoms it might be easier to justify the request. The more difficult question would be whether they would be entitled to full pay or sick pay in the meantime?
     
18. Do we tell staff there has been a positive virus test case to the workforce?
    
    Government guidance encourages employers to keep staff informed about potential or confirmed COVID-19 cases amongst their colleagues. 
    
    However, they should not name individuals, and should not unlawfully share anyone's personal data including anyone's test results.
    
    The ICO is clear that data protection law doesn't prevent an employer ensuring the health and safety of their staff. 
    
    It shouldn’t be viewed as a barrier to sharing data with authorities for public health purposes when necessary and proportionate, such as working with the NHS Test and Trace service. 
     
19. An employee has been contacted by test and trace and is self-isolating. If they take a test and are negative can we get them back in?
    
    No. It makes no difference whether they have a negative test. They could still develop the symptoms in the remaining period. They need to isolate for the full 14 days.
     
20. We have an employee who is already self-isolating and has now tested positive. How long will it be before they can come back to work?
    
    They will need to self-isolate for at least 10 days from when the symptoms or the test if there were no symptoms. This is the case even if it means they will be isolating for more than 14 days.
     
21. An employee has given us an isolation note but we think it is not genuine, can we check it somehow?
    
    Yes, you can go on the NHS website, insert the name and the certificate number and it will confirm whether it is genuine.
     
22. How can we protect the company from getting a fine?
    
    Have a clear policy in place in relation to attendance and coronavirus. The policy should make clear what they need to tell you and when.
    
    It should emphasise when they need to self-isolate and warn that they must not attend work. It should be highlighted that failure to comply would be a disciplinary offence which could result in action being taken against them up to and including dismissal.

This information was up to date at the time of recording (7th October 2020) and has further been amended on 22nd October 2020.