Coronavirus in Scotland and Statutory Sick Pay – Watermans

10th Mar 2020
Lisa Boyle

Coronavirus in Scotland and Statutory Sick Pay – Watermans

Coronavirus hits Scotland – but what are my sick pay rights?

With news that the coronavirus has reached Scotland, the Scottish Government announced emergency measures on 4th March, including updated Statutory Sick Pay rules.

According to the latest coronavirus update when this blog post was published, there were 23 confirmed cases in Scotland. The update to the Statutory Sick Pay means that workers will be paid from the first day of sick leave, not day four as it had previously stood.

However our employment law consultant has warned how parents could face receiving no pay from their employers if Scottish schools are forced to close amid the coronavirus pandemic.

Priya Cunningham, who is based at our leading personal injury firm in Glasgow, urged employers to use their discretion to pay parents during any time that schools may be shut if the outbreak reaches crisis.

Failure to pay parents who have to take emergency family leave could have a detrimental impact on low income families.

 

Priya, from Watermans, said: “The coronavirus is a unique situation and it is really important that employee who has to self isolate so that they don’t infect the rest of the workforce receives pay during this period. Any employer who refuses to pay staff will be risking staff coming into work when they are potentially infectious.

“In Italy all schools have been closed as a way to stop the spread of the virus. If the UK decides to do this then this raises a new issues of whether parents will be paid while their children are home. Currently parents are legally entitled to emergency time off to look after dependants.

“This gives them an entitlement to take a reasonable amount of time off work, however there is no legal right to be paid for any period of leave. There is no definition as to what is classed as reasonable amount of time and this will be at the employer’s discretion. Again, because this situation is unique, employers should view reasonable time as covering the whole time that the school was closed and they should also be reasonable and pay staff during this period.

 

Pens

 

“I would urge employers to use their discretion to pay staff for any period of time that they need to take off due to School closures. There are a number of implications for low income families in the event of a School closure. For example Children who receive free school meals would potentially be at risk of not being fed if they come from a single Parent family who suddenly lose their weekly pay.”

The Government’s Statutory Sick Pay of £94.25 per week works out at only 20 per cent of the national average salary. This amount will be pro- rated for part time workers. Employees who have a contractual right to enhanced sick pay will be entitled to sick pay based on their full salary for a period that will be specified in their contract.

While this emergency measure from the Government is a positive step in ensuring that employees are not facing a detriment if they are sick, it does not go far enough for protecting zero hours contracts and self-employed staff members.

This will be a welcome measure for employees who find themselves having to take time off due to contracting the virus. However, the Government’s Statutory Sick Pay of £94.25 per week works out at only 20 percent of the national average salary. And the amount will be pro rata for part-time workers. Employees with a contractual right to enhanced sick pay will be entitled to sick pay based on their full salary for a period that will be specified in their contract.

While this emergency measure from the Government is a positive step, it does not go far enough for protecting zero hours contracts and self-employed staff members.

 

What happens if I get Coronavirus while on a Zero hours contract?

 

Priya Cunningham, an employment law consultant at Watermans Solicitors in Glasgow, warned that workers on Zero hours contracts won’t be eligible for Statutory Sick Pay unless they have earned at least £118 per week in the eight weeks preceding any period of sick leave. This means a staggering two million people will not be eligible for sick pay.

Priya said: “Zero hours contract workers are often the most low paid and most financially vulnerable in society to start with.”

Business Secretary, Alok Sharma, has suggested those not eligible for sick pay might be entitled to Universal Credit.

“It is no secret that the system for administering Universal Credit is not sufficient. An application can currently take five weeks, often meaning that the applicant is left financially vulnerable until a payment is made to them.

“Adding another two million applicants into an already broken system is not the answer, as by the time a payment of universal credit is made the applicant will most likely have returned to work.”

 

The Government has urged employers to treat employees who self-isolate as being “sick,” so that the rules of sick pay apply. For employees who have to self-isolate and are only entitled to Statutory Sick Pay, they should then be paid from the first day of their absence.

But technically, an employee who has to self isolate is not classified as sick. An employer who is applying their sickness policy strictly could refuse to pay sick pay in these circumstances. An employment contract is one of performance and if the employee is not available to perform their duties, for whatever reason, then they are not entitled to be paid.

Priya continued: “The coronavirus is a unique situation and it is really important that any employee who has to self isolate so that they don’t infect the rest of the workforce receives pay during this period. Any employer who refuses to pay staff will be risking staff coming into work when they are potentially infectious.

“In Italy all schools have been closed to stop the spread of the virus. If the UK decides to do the same, this raises new issues of whether parents will be paid while their children are home. Currently parents are legally entitled to emergency time off to look after dependants.

“This gives them an entitlement to take a reasonable amount of time off work, however there is no legal right to be paid for any period of leave. And there is no definition as to what is classed as a ‘reasonable amount’ of time, so this will be at the employer’s discretion. Again, because this situation is unique, employers should view reasonable time as covering the whole time that the schools are closed and they should also be reasonable and pay staff during this period.”

 

Can I get paid if I work from home with the coronavirus?

 

Priya advised if there is the option to work from home, employers should allow any staff self-isolating or looking after dependants to do so. Home working is not something all employees will be able to do and it really does depend on the nature of their job, however the employer should take all reasonable steps to allow an employee to work from home if need be.

 

 

Employers should make clear to staff their obligation to stay away from the workplace if they are infected, or suspect they might be infected. It’s the employer’s responsibility to ask staff returning from high risk areas to self isolate for a period of weeks and only return to work if they are symptom free. Employers should also ask staff who have symptoms not to attend work until they have been tested for coronavirus and been given the all clear.

The Government has made it clear that staff in isolation or those with coronavirus should receive sick pay. If an employer fails to pay this then the employee might be entitled to pursue a claim for unlawful deduction of wages in the employment tribunal. Time limits are short and claims need to be pursued within three months, minus a day, of the date on which the sick pay was due to the employee.

There might actually be the odd unreasonable employer who would unfairly dismiss someone if they were off sick with coronavirus or in isolation. The employee then might be entitled to pursue a claim for unfair dismissal in the Employment Tribunal. The time limits for unfair dismissal are also short and claims need to be pursued within 3 months, minus a day, of the date of dismissal.

 

Can you be sacked for coming to work knowing you have Coronavirus?

 

 

An employee could potentially be dismissed if they come into work while they are infected with coronavirus, Priya has warned.

A request to stay away from the workplace is a reasonable management instruction and any employee who defies this could face disciplinary action, including dismissal. The flip side of this would be employees who falsely claim they are sick, where they could also face disciplinary action and possibly dismissal.

The overarching objective in all of this is to ensure employers are able to protect their workforce from the spread of Coronavirus, while also protecting the rights of employees.

Watermans is now offering a 20 per cent discount from all of our services to all NHS staff.

If you have an employment law query which relates to Coronavirus, we can assist you. For free advice, please get in touch.