Statutory Sick Pay (SSP) & Isolation
The government has decided to bring the Coronavirus Statutory Sick Pay Rebate Scheme (SSPRS) to an end on the 30th of September 2021. This means that, from the 1st of October 2021, small employers who are currently eligible under the Scheme will no longer be able to claim back statutory sick pay (SSP) for employees unable to work due to COVID-19. Alternatively the employer will have to cover the full cost of SSP which is currently £96.35 a week.
Prior to the COVID-19 pandemic, employers covered the full cost of up to 28 weeks’ SSP for their employees who met the relevant SSP criteria. By law, employers must pay SSP to employees and workers when they meet eligibility conditions.
The scheme only allows you to recover up to two weeks' SSP per employee and is payable from the first qualifying day the employee is off work as the usual rules about 'waiting days' don't apply.
Employees could be entitled to receive SSP if they are self-isolating for any of the following reasons:
- They have tested positive for covid-19
- They have been notified by the NHS or public health authorities that they are a close contact but of course since the 16th of August fully vaccinated close contacts do not need to isolate.
- They have been advised by their doctor or healthcare professional to self-isolate before going into hospital for surgery.
It is important to note that employees are not entitled to Statutory Sick Pay if they're in self-isolation or quarantine after traveling abroad and they cannot work from home.
Record Keeping
Employers need to keep records of SSP if they have paid an employee who was off work because of COVID-19 if the employer wants to reclaim it. They'll need to keep the following records for 3 years after the end of the tax year they paid SSP:
- the dates the employee was off sick
- which of those dates were qualifying days
- the reason they said they were off work
- the employee’s National Insurance number
Employers do not need to keep records of SSP paid to employees who are off sick for another reason. Employers can choose how to keep records of their employees’ sickness absence. The HMRC may need to see these records if there’s a dispute over payment of SSP.
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Annual Leave Post Covid
With the pandemic, some employees will have been on furlough meaning they are not working. However, it is important for employers to note that employees who were or are on furlough still accrue annual leave. This is because the contract of employment continues during this period. Employees are permitted to take annual leave while on furlough, without their furlough period coming to an end. If they choose to do so, the organisation will need to top up their pay to 100% of their normal wages if they are receiving reduced pay while on furlough.
Employers may wish to require employees to take annual leave during furlough, for example to avoid a build-up of leave that employees will need to take when they are back at work. Managers should be aware of the company’s approach to annual leave for the period of furlough before making any decisions.
Standard employment law provisions state that employers can require employees to take annual leave as long as they give twice as many days’ notice as the period of leave the employee is required to take. For example, if the employer requires the employee to take two week's annual leave at a certain time, the employer must therefore give the employee at least four weeks' advance notice (or what is outlined in the contract of employment).
As employees return to the workplace from furlough, managers may be in a situation where a number of employees will ask to take annual leave at the same time, particularly when they have leave to take before the end of the leave year. Where possible managers should allow the leave however, they need to ensure business continuity.
Interestingly new research by Acas has found that around 4 in 10 British employees (39%) have taken less paid time off work during the pandemic compared to before it started.
The normal rules on carrying over annual leave have been modified under reg.13 of the Working Time Regulations 1998 to allow workers to carry over up to four weeks' annual leave into the next two holiday years, where it has not been feasible for them to take it as a result of the effects of coronavirus which applies to all employees.
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Redundancy in the UK: A Guide to Avoiding Unfair Selection
As you all know the Coronavirus Job Retention Scheme has now entered its final month and will draw to a close on the 30th of September 2021. With this scheme coming to an end companies are now unfortunately faced with the possibility of redundancies having to be considered. The number of redundancies in the UK has accelerated at the fastest pace since the financial crisis. According to ACAS, redundancy related calls to their helpline have increased by over 160% compared to 2019.
If redundancies must occur then we see the following steps should be adhered to:
Collective Consultation
If an employer is proposing to make 20 or more employees redundant at one establishment within 90 days, collective consultation will be required with trade union or employee representatives.
For employers who collective redundancy applies to and who wish to make redundant by the end of the furlough scheme, they would have needed to commence their collective redundancy consultation by the 31st of August 2021.
Non-Collective Redundancy
If collective redundancy does not apply and your redundancies are on an individual level this is non-collective redundancy which is less than 20. In this case;
- You should aim to avoid compulsory redundancies through: voluntary redundancies, agreed short-time working or other flexible staffing arrangements.
- You should also carry out a consultation with every employee individually. The consultation must be meaningful and your plans must not be finalised at this stage.
Next is selecting staff for redundancy. Employers should use fair and objective criteria. Ideally, all employees at risk of redundancy should be put in a selection pool and assessed upon criteria such as: Standard of work, experience / qualifications and disciplinary record. Selecting those who have been on furlough over other employees may not necessarily be fair – these employees may have been parents with childcare issues or individuals with disabilities, so there could be a risk of a direct or indirect discrimination claim.
Notice of Termination
Once you have selected staff for redundancy, you need to give employees notice of their redundancy. The statutory redundancy notice periods are:
- At least one week’s notice if employed between one month and 2 years
- One week’s notice for each year if employed between 2 and 12 years
- 12 weeks’ notice if employed for 12 years or more.
It is always advisable to check your contracts of employment as the contractual notice agreed may differ to statutory notice. Where contractual notice is greater than statutory notice, contractual notice will apply. However, where the contractual notice is less than statutory notice, statutory notice will apply.
Statutory notice pay is protected. If the notice in the contract is the same or less than the applicable statutory notice, 100% of the employee’s normal pay should be paid during the notice period.
However, things are slightly different where contractual notice is greater than the statutory notice period. If contractual notice is greater, by at least 1 week, an employee should receive their normal full pay as long as they are working. If they are not working, they should receive what they would have normally been paid for that absence.
So, if you have an employee who is out of work due to furlough and being paid at 80%, and this employee’s contractual notice is greater than statutory notice, they may be paid at 80% for their notice period. For this reason, it is extremely important to always check the contract of employment.
Redundancy Payments
An individual is entitled to statutory redundancy pay if they are an employee and have been working for the employer for 2 years or more.
- One week’s pay for each full year they have worked when 22 or older, but under 41 years old.
- Half a week’s pay for each full year they have worked under 22 years old.
- One and half week’s pay for each full year they have worked when 41 years old or older.
Redundancy pay is capped with a length of service being 20 years. For employees made redundant on or after 6 April 2021, a weeks’ pay is capped at £544, so the maximum statutory redundancy they can receive being £16,320.
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