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Coronavirus and the Workplace - Advice for Higher Education Institutions

on Friday, 20 March 2020.

With Higher Education Institutions moving to online teaching and allowing staff to work from home and more staff self-isolating and social distancing, there has been significant disruption to normal working patterns.

The current situation has sparked numerous questions about how HEIs should be handling the situation and we have set out answers to some of the most common questions below.

We also recommend all HEIs consider the ACAS guidance and the government guidance which is updated regularly.

Coronavirus Legal Advice

Are Employees in Self-isolation Entitled to Be Paid?

Where an employee is self-isolating because they are suffering from the symptoms of coronavirus (also known as COVID-19), they will clearly be entitled to receive Statutory Sick Pay (SSP) and contractual sick pay in accordance with the HEI's scheme.

The SSP regulations have been amended so that those self-isolating to prevent infection or contamination with COVID-19 in accordance with guidance published by Public Health England and who by reason of that isolation are unable to work are also entitled to SSP.

The government is legislating so that employees will be entitled to SSP from day one of their absence rather than there being the normal three day waiting period. This legislation will have retrospective effect.

If an employee does not have COVID-19 symptoms but is self-isolating in accordance with government advice, they may not strictly speaking satisfy the definition of incapacity under your sickness policy. However, it would be good practice to treat them as being on sick leave, otherwise you risk staff coming to work in order to get paid and spreading the virus.

Are Those Who Are Social-Distancing Entitled to Be Paid?

The government's guidance is that those in vulnerable groups (ie those over 70, those with underlying health issues, and pregnant women) should take measures to reduce their social interaction (eg avoid gatherings with friends and family, all large gatherings, non-essential use of public transport and work from home where possible).

At this stage the guidance says these individuals are strongly advised, and should be supported, to stay at home, but it does not go as far as telling them that they must stay away from work.

If they stay away from work and are unable to work from home, strictly speaking they are not currently entitled to SSP and in most cases will also not be entitled to contractual sick pay. However, individuals in these vulnerable groups may find it fairly easy to get a fit note to cover their absence in the current circumstances.

If an HEI tells employees in these vulnerable groups not to come into work and they cannot work at home then this will be a medical suspension and they would be entitled to full pay. This entitlement would continue until the risk factors change which could be several months.

HEIs should also be mindful of their duties under the Equality Act 2010 to make reasonable adjustments to an employee's working arrangements where that employee has a disability which results in a higher risk of contracting severe COVID-19.

What if an Employee Chooses to Self-Isolate?

Where an employee chooses to self-isolate (but not in accordance with government guidance or medical advice) and is not working, they will not be entitled to SSP or contractual sick pay.

However, HEIs should listen to any concerns and it may be possible to offer flexible working arrangements or for them to work from home.

Are Those Who Are Working from Home Entitled to Be Paid?

The government's guidance is that employers should encourage employees to work at home where possible and many HEIs are doing just that. If staff are working from home they are entitled to their pay and benefits in the normal way but if they are working reduced hours then the employer may be entitled to reduce their pay pro rata.

It is good practice to keep in regular contact with employees and check on their health and well-being.

With Schools Closing What Are the Options for Working Parents?

All employees have the right to take a reasonable amount of time off work to take necessary action to deal with an unexpected incident which involves their child during school hours. However, this is usually only enough time to put in place other arrangements and is unpaid.

Employees with a year's continuous employment may be entitled to take up to 18 weeks' parental leave per child and want to use some of this leave in the current circumstances. This leave is unpaid unless the HEI has an enhanced scheme.

Other possibilities include allowing employees to take annual leave or agreeing they can flex the hours they work to allow them balance childcare whilst continuing to work.

What Other Options Are Open to HEIs?

HEIs may want to review any recent offers of employment. If there is a binding offer and acceptance the offer cannot be revoked unilaterally. However, notice could be given to terminate the contract or it may be possible to agree a deferral of the start date.

Many HEIs use agency workers so may want to consider bringing those assignments to an end in accordance with the terms of the contract with the agency.

Where fixed term contracts are due to expire, HEIs may want to consider not renewing them. It is important to bear in mind that a non-renewal of a fixed term contract is a dismissal, so if the employee has over two years' service this could give rise to a redundancy payment and a fair dismissal process will need to be followed.

HEIs use a range of casual and flexible contracts, some with no guaranteed hours. They may want to identify contracts were there is no obligation to offer work, or where the amount of work offered can be reduced and take appropriate steps.

Another option is to explore with the unions whether agreement can be reached about ways of reducing staffing costs on a temporary basis in order to avoid the need to make redundancies and to ensure financial sustainability. This could include unpaid leave, unpaid sabbaticals and agreed reductions of hours or pay.

The above reflects guidance as at 20 March 2020. We will continue to update this as the situation develops.

For further information on the employment and HR implications of the coronavirus, please contact Jane Byford in our Higher Education team on 07909 656764, or complete the form below.


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