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In the second instalment of this two-part article, Gwyneth Pitt deals with some of the employment law questions which have been raised by the COVID-19 lockdown—which could impact your business or your clients.
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Sick pay and annual leave
Entitlement to sick pay depends mainly on the terms of the contract between the employer and employee, but all employees earning £120 per week or more are entitled to Statutory Sick Pay (SSP), which must be paid by the employer for up to 28 weeks, should the illness last so long. The current rate is £95.85 per week. Normally SSP is payable only for the employee’s own incapacity through illness and only from the fourth day of sickness absence. In the face of the COVID-19 crisis, the statutory scheme has been modified in important ways: first, it applies to employees who are shielding because of their particular vulnerability, or who are self-isolating because they or someone in their household has COVID-19 symptoms, and secondly, it is payable from the first day of absence on this account. Many contracts of employment provide that the employer will top up SSP to the employee’s normal salary level—but it does not follow that the employer will be contractually obliged to pay sick pay where the employee is shielding or self-isolating because of a family member’s symptoms.
Workers are entitled to 5.6 weeks of paid annual leave per annum. For workers who have a standard five-day week pattern, this equates to 28 days a year. Contractual entitlement may be more generous—but cannot be less. One question which has arisen in relation to the lockdown has been whether employers can require employees to take some or all of their annual leave during this period. Since employees cannot be on leave and on furlough at the same time, this may not be the ideal course of action for employers, since they will not get 80 percent of the employee’s salary paid for by the state. Conversely, an employee who is laid off without pay in accordance with their contract, or who has been furloughed, may wish to use some part of their holiday entitlement, to get their full pay for that period. How far can either side insist on using holiday entitlement if the other party objects?
The short answer to this is that it depends on the individual contract of employment. However, this may not be terribly helpful. Most contracts will specify a method for requesting leave, usually stating who has authority to approve requests, sometimes stipulating how much leave can be taken at any one time, and often stating that requests will not be unreasonably refused. Terms of this kind would seem to suggest that employees cannot insist on taking holiday without the employer’s agreement. The Working Time Regulations 1998/1833, reg. 15, stipulates that employees must give twice as many days’ notice as the length of the leave they wish to take, and that counter-notice from the employer must be at least of the same length as the requested period. Mirror provision is made for the employer who wishes to require the employee to take leave—but regulation 15(5) makes clear that these are all fallback provisions which may be varied by agreement between the parties.
The Acas advice on dealing with COVID-19 states categorically that “Employers have the right to tell employees and workers when to take holiday”, but of course, this is an opinion without legal status. Given that most workplaces will have regular practices in relation to booking holidays, it may be that it is relatively easy to find an implied term based on custom and practice if there is no express term. Even if the employer is able to require an employee to take holiday, exercise of this right is likely to be controlled by the employer’s duty not to act in such a way as to undermine the mutual trust and confidence which underpins the employment relationship (Malik v BCCI).
Paid annual leave must usually be taken in the holiday year to which it relates, or else it is lost. But if it is not reasonably practicable for the worker to take the leave because of COVID-19, the Working Time (Coronavirus) (Amendment) Regulations 2020/365 provide that up to four weeks may be carried forward for up to two years.
Disputes over attendance at work
As the lockdown begins to ease and workplaces begin to re-open, it is quite probable that disputes may arise between employers and employees over the terms of return—particularly given the continuing lack of definite information and fears of a second wave of infections. What if the employer insists that employees must attend the workplace, while they think that they can perform their jobs perfectly well from home? What if they have different opinions about the level of risk employees may face if they are required to attend (for example, by having to use public transport) and whether the employer is taking adequate steps to protect them (for example, by providing appropriate personal protective equipment)? Advice from official sources continually exhorts parties to be flexible and agree a way forward—but there are bound to be situations where this is not possible. There are likely to be unfair dismissal claims in months to come if employees are dismissed for refusing to return to work.
As a rule, unfair dismissal protection is restricted to employees who have at least two years of continuous employment, and the focus of any claim will be on whether the employer acted reasonably or unreasonably in dismissing in the circumstances of the case. However, it should be noted that under the Employment Rights Act 1996 s.100(1)(d) it is automatically unfair to dismiss employees who refuse to return to their place of work “in circumstances of danger which the employee reasonably believed to be serious and imminent”. In addition, s.44 of the same Act protects them from suffering any detriment during employment (such as demotion or disciplinary proceedings) on the same grounds. It is impossible to tell in advance whether any particular situation will be judged to have come within this provision: cases are bound to turn on their individual facts. But the important points to highlight are first, that employees are protected from automatically unfair dismissal under s.100 from day one of their employment: there is no requirement of two years continuous employment, and secondly, that there is no cap on compensation for automatic unfair dismissal. Employers should therefore be wary of embarking on such a course.
Gwyneth Pitt has been teaching and writing about Employment Law for over forty years. In the course of her academic career she has taught at the Universities of Nottingham, Leeds and Huddersfield, as well as in France and the USA. She is currently Emeritus Professor of Law at Kingston University. Her textbook, Pitt’s Employment Law, is widely used in British universities and the 11th edition will be published this summer.