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Coronavirus Employment Implications - FAQs for Public Sector Employers

on Tuesday, 31 March 2020.

In this article, we respond to common questions around staff pay, sick pay, caring for dependants and protecting the health and safety of staff. We have also provided some guidance in relation to the relevant provisions in the Burgundy and Green Books.

Public Sector employers also need to consider this in accordance with guidance from the NJC.

We also recommend all employers consider the ACAS guidance and the government guidance which is updated daily.

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Frequently Asked Questions


What do you need to do if parts of the organisation have to close?

  • Where possible, staff should be asked to work remotely. Where this is possible they should be paid as normal (unless agreed otherwise).
  • If staff are fit and available to work but are unable to do so, then it is likely that staff will be entitled to pay throughout this period (see comments on Green Book below). However, this may depend on any specific contractual terms that are in place. Some employers may be considering whether there are any other steps that can be taken to agree short-term changes to terms and conditions with staff.
  • We recommend that employers ensure staff have a way to communicate with their colleagues and the organisation in this situation. For example, do staff have up to date contact details for other members of their team.
  • If staff are sick or unable to work due to caring commitments then the provisions below will apply.

Where staff are sick:

  • Where an employee is self-isolating because they are suffering from the symptoms of COVID-19, they will be entitled to receive sick pay in the usual way as when they are unwell.
  • Organisations need to be aware of specific provisions for staff, particularly those employed on Burgundy or Green book terms, which are set out in more detail below. We are not able to comment specifically on all nationally agreed terms and conditions for employees working in the public sector in this article.
  • The government has advised that employers should use their discretion concerning the need for sick notes to allow GPs to focus on other patients.

Where staff are self-isolating on medical advice or government guidance but have no symptoms:

  • If a member of staff is able to work from home then they should be paid as normal.
  • Under the new Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 (SI 2020/287), if an employee self-isolates in accordance with government guidance (and are not working) then they are entitled to statutory sick pay (SSP) and/or contractual sick pay.
  • Employers should check contractual sick pay terms to identify whether contractual sick pay would be payable or consider the extent to which they are prepared to exercise their discretion to pay such employees sick pay in these circumstances.
  • ACAS has recommended that it is good practice for employers to treat any period of self-isolation as sick leave. Otherwise, there is a risk staff will attend work in order to get paid and there may be an enhanced risk of them spreading the virus.
  • However, please note that unions and NJC circulars have stated and inferred that their expectation is that all employers provide full pay, see section on Green Book below.

Where staff choose to self-isolate:

  • Where an employee chooses to self-isolate (but not in accordance with government guidance or medical advice) and is not working or available to work, then they will not be entitled to SSP or contractual sick pay.
  • Employers should explore the employee's reasons as to how to treat the employee and whether to exercise their discretion to continue to make any payment.
  • However, as above, please note that unions and NJC circulars have stated and inferred that their expectation is that all employers provide full pay, see section on Green Book below.

Where employers ask staff to self-isolate:

  • Where an employer has concerns about an employee spreading the virus and asks them not to work (but this is outside the government guidance), the employee should receive their usual pay in the normal way - as such absence is at the request of the employer. Given the current status of COVID-19, this situation may be unlikely.

Working from home/social distancing

All workplaces should encourage their employees to work at home wherever possible.  Staff who work at home will usually receive payment as normal.

The government states that employees from vulnerable groups should be strongly advised and supported to stay at home and work from there if possible. This covers staff who are aged 70 or older, under 70 with an underlying health condition and those who are pregnant.

Employers have a duty of care towards staff. They should consider how they can support staff from vulnerable groups to stay at home and follow the government's social distancing guidance.

Employers 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 within the meaning of the Act which results in a higher risk of contracting severe COVID-19.

Where staff are at home on the basis of government guidance and are unable to work from home then it is likely that they will be entitled to sick pay.

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What if employees do not want to come to work due to fears of being exposed to the virus (or risk spreading it to others)?

If an employee refuses to attend work (where it is not possible for them to work from home and they are not from a vulnerable group) then employers can usually ask them to do so, if the work is essential, refusal may be unauthorised absence. In these circumstances it is likely to be most pragmatic to agree a period of paid or unpaid leave.

However, please see below re Green Book and position of NJC.

 

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What if employees need to take time off to care for dependants?

Employees are entitled to a reasonable period of time off work to care for dependants in an unexpected event or emergency.

If employees have children they may need to look after them and arrange further childcare because schools and childcare facilities are closed. They may also need to help their child or dependant if they are ill, or have to self-isolate or go into hospital.

There is no statutory right to be paid for this time off, but some employers may offer paid time off for a limited period under a contract or policy.

Where staff have a paid holiday entitlement this could be used.

Again, the approach to this unprecedented situation will need to consider the views of the unions and NJC.

 

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Does the government's Job Retention Scheme apply to local authority employers?

The government has confirmed local authorities may "apply" to use the Scheme but that it does not expect the Scheme to be used by many public sector organisations as the majority continue to provide essential public services or are contributing to the response to the pandemic.

The government has also confirmed that where a public authority is in receipt of funding for staff costs, the expectation is for that money to be used to pay wages in the usual way. 

We anticipate that any public authority seeking to use the Job Retention Scheme will be expected to justify its reasoning as the government will wish to avoid effectively paying twice for staffing costs. 

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Employees on Burgundy or Green Book terms

School-based employees covered by the Burgundy Book (teachers), and staff employed on Green Book terms and conditions may be entitled to full pay for absence when they are required to be absent due to infectious illness. This absence does not count against sick pay entitlements.

For Green Book staff, the provisions are broadly drafted and at section 10.9 state:

"An employee who is prevented from attending work because of contact with infectious disease shall be entitled to receive normal pay. The period of absence on this account shall not be reckoned against the employee’s entitlements under this scheme."

This is likely to include where the staff self-isolate because they have a reasonable concern that they may have come into contact with COVID-19. It is clear from recent NJC circulars that the NJC is of the view that section 10.9 extends to wider situations, such as where employees cannot attend work due to childcare and are unable to work at home.

The NJC circular, dated 17 March 2020 (issued in the context of the government advising to work from home where possible, and avoid non-essential travel):

'Ultimately, in many cases employers will have no option other than to accept that some employees can neither work at home nor be redeployed / seconded etc. and will therefore be staying at home on full pay for the duration of this emergency. The LGA is and will continue to be in discussion with government regarding the support required for the sector.'

We recommend that employers undertake a review of roles that are essential and desirable and those that can be undertaken fully and partially at home. This will ensure a reasoned approach to requests to remain working (other than at home) and to engage with the unions as soon as possible with any proposals for modified working.

There will be many roles within the Public Sector that will be deemed key and as such, those employees will be key workers. Consideration will need to be given to how you continue to provide those services in light of the likely reduction in the number of employees who will be able to work. You may want to consider rotating employees to reduce the risk of exposure to COVID-19 if that is possible.

For teachers on Burgundy Book terms this specifically includes:

  • where a teacher contracts an infectious disease (which would include COVID-19) and there is a reasonable probability this was through work
  • periods of self-isolation on medical advice because someone in their household has an infectious disease
  • where teachers are unable to attend school because of an infectious disease in the work-place

These specific situations do not necessarily cover if a teacher contracts COVID-19 and it is likely to not to have been through work. Or if they self-isolate in circumstances unrelated to a member of their household. Nevertheless, schools may take a view in the circumstances and may opt not to apply the requirements too narrowly.

Paragraph 10.3 of the Burgundy Book provides that:

'When the approved medical practitioner attests that there is evidence to show a reasonable probability that an absence was due to an infectious or contagious illness contracted directly in the course of the teacher’s employment full pay shall be allowed for such period of absence as may be authorised by the approved medical practitioner as being due to the illness, and such absence shall not be reckoned against the teacher’s entitlement to sick leave under paragraph 2 above, though such absences are reckonable for entitlement to Statutory Sick Pay.

A teacher residing in a house in which some other person is suffering from an infectious disease shall at once notify the employer and the teacher shall, if required, take such precautions as may be prescribed, provided that if in the opinion of the approved medical practitioner it is considered inadvisable, notwithstanding such precautions, for such teacher to attend duty, full pay shall be allowed during any enforced absence from duty, such pay being sick pay for the purpose of paragraphs 3 to 7.5 above. This provision will also apply where, in the opinion of an approved medical practitioner, it is inadvisable for a teacher to attend duty for precautionary reasons due to infectious disease in the workplace. The period of the absence under this paragraph shall not be reckoned against the teacher’s entitlement to sick leave under paragraph 2 above, though such absences are reckonable for entitlements to Statutory Sick Pay.'

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How has SSP changed?

The new Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 (SI 2020/287) state that an employee self-isolating in accordance with government guidance is entitled to SSP - even if they are not showing any symptoms.

The government has stated that SSP will be paid from day one as part of its emergency coronavirus legislation where an employee is self-isolating.

The Chancellor also announced in the Budget delivered on 11 March 2020 that the government will reimburse small employers (those with less than 250 employees) any SSP paid to employees for the first 14 days of sickness absence. We await further details on how this will be implemented.

 

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What if an employee falls ill at work?

If an employee becomes ill with symptoms of coronavirus at work, they should be sent home and advised to follow the stay at home guidance. They should not visit the GP, hospital or pharmacy. If their life is at risk or if they are seriously ill or injured then a member of staff should call 999.

 

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How can employers reduce the risk to employees?

All employers have a legal duty to carry out risk assessments in relation to the risks to the health and safety posed by their operations. This includes assessing the risks posed by the current coronavirus outbreak. Employers should carry out written risk assessments in respect of the risks posed by coronavirus in order to ensure that they are taking reasonable steps to control risks posed by the virus to its employees, and anyone else affected by its operations - this could include service user, employees, external contractors or anyone else who may be affected.

As part of the risk assessment, employers should identify and put in place adequate control measures to respond to risks posed by coronavirus. Employers should provide employees with adequate information about these measures and ensure that they are understood and that training is provided to employees, where necessary.

Given the rapidly changing position, employers should keep the risk assessment under close review and regularly update it to respond to any change in the risk profile.

 

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If you require specialist legal advice relating to Coronavirus employment implications, please contact Allison Cook, Head of Public Sector on 0117 314 5466, or complete the form below.

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