“To work or not to work”

Tuesday 24th March 2020

If you have to send people home there are a couple of considerations:

Are you sending them home because they are ill or are you sending them home because you do not have enough work at the moment?

If you are sending someone home because they are ill then if they seek medical advice to self-isolate or get a GP Fitness to work note then they will be entitled to sick pay. Statutory Sick Pay is payable from day one at present, any company sick pay will be governed by your contract of employment.

If the employee does not seek medical advice then this would be classed as a medical suspension and so technically they would have to be paid full pay. However, bearing in mind the government guidance on self-isolation the likelihood is that employees will accept that it would be treated as sick leave.

If you are sending an employee home because you do not have enough work then how you can achieve this and limit any liability will depend on what your contracts of employment say.

If you have the right to lay staff off (either expressly or impliedly in the contract) then you can send them home under that right. However they have an entitlement to be paid the statutory guarantee payment for 5 days and then you should do them a letter so that they can sign on for benefits (they will still remain your employee during this time)

If you do not then you can send them home, but unless you can reach an agreement with them to the contrary you would have to pay them. By agreement you can reduce hours and/or pay. There is also the newly implemented Coronavirus Job Retention Scheme details of which can be accessed here https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/covid-19-support-for-businesses

In light of the current circumstances even if you do not have a mobility clause in the contract of employment, provided you are able to provide the necessary tools i.e. access to the network, laptops if needed, you can ask employees to work from home.