| HR & EMPLOYMENT LAW
Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
Extended Self-certification Period is Now in Force
On Friday 17 December, new legislation came into force giving employees 28 days to self-certify sickness instead of the usual 7 days. The Statutory Sick Pay (Medical Evidence) Regulations 2021 were made at 9.29 a.m. on 16 December, laid before Parliament at 2.00 p.m. the same day and came onto the statute book the next day. Read on to find out more about this change and what it means in practice.
Understand the Legislation
Under the regulations, you can only ask employees for proof of sickness for the purposes of paying statutory sick pay (SSP) once they have been absent on sick leave for 28 days in a row. This period includes weekends and other non-working days such as bank holidays. The aim is to free up GPs so they can focus on rolling out booster jabs to try and combat the threat from the Omicron variant. The updated government guidance (see: bit.ly/3pjcFkp) appears to say you can’t even ask an employee who is self-isolating for an NHS 111 isolation note or Test and Trace notification.
This is a temporary measure which applies in England, Wales and Scotland and it will end on 26 January 2022 – unless there’s an extension.
What About Employees Who were on Sick Leave Before 17 December?
Anyone who was on sick leave on or after 10 December doesn’t need to provide a fit note unless they remain ill for 28 days. Anyone who was already signed off work via their GP will need to obtain a new fit note when their existing one expires.
So We Can’t Ask for Any Evidence at All?
For the time being, you must pay SSP for up to 28 days if the employee self-certifies that they are ill. However, as long as you act reasonably, you can ask for evidence of illness for non-SSP purposes. You might, for example, have good grounds to suspect the person isn’t sick or you might want a medical opinion to see if a phased return, reasonable adjustments or other support are possible. You may also require employees to provide proof of illness to demonstrate entitlement to company sick pay.
In this case, you could:
- Pay privately for a GP fit note, although this undermines the purpose of the legislation, which is to free up GPs’ time. There could also be a delay in getting a response.
- Pay for a virtual doctor appointment – services such as Push Doctor can provide fit notes.
- Refer the employee to an occupational health practitioner.
- Ask for an NHS 111 isolation note or Test and Trace notification, as long as this is for company sick pay, not SSP, purposes.
Can We Reclaim SSP for Covid-related Absences?
The Chancellor announced yesterday that from mid-January 2022 the scheme allowing small and medium-sized businesses to reclaim Covid-related SSP will be reintroduced. At the moment, however, you’re not entitled to a rebate.
What if We Think an Employee is Skiving?
This rule change raises the prospect of an unscrupulous employee pretending to be sick so they can have extended time off over the Christmas and New Year period – assuming they can afford to live on SSP over this time.
If you’re worried about an increase in fraudulent self-certification, there are a few things you can do. However, I would advise against being too heavy-handed, as giving the impression you don’t trust staff could damage employee relations and upset genuinely ill employees. Having said that, honest employees won’t want to cover for malingering co-workers, so you may wish to take some of the following steps:
Possible Actions to Minimise Fraudulent Self-certification
- Consider temporarily updating your sickness absence policy. Typically, this will require employees to call their manager every day for the first 7 days of their absence, after which, depending on what the fit note says, you may relax your requirements. You may now wish to keep in closer communication with employees for longer.
- Remind employees that if they have a poor attendance record, they may face action under your capability procedure.
- Make clear that employees must attend a return-to-work interview to discuss their absence and, if they have falsely claimed they were ill, you will treat this as gross misconduct, which could lead to summary dismissal.
- If you have a non-contractual company sick pay scheme, consider postponing enhanced payments until after 28 days. If you do this, you should communicate the change clearly and treat all employees who went on sick leave after 10 December consistently to avoid possible discrimination claims.
In practice, it may be difficult for an employee to maintain a pretence that they’re ill over Christmas, given the risk of being spotted at the Boxing Day sales or of a photo of them celebrating emerging on social media. Not everyone who is ill necessarily has to be confined to their bed but, in this situation, you could certainly investigate and take disciplinary action if the employee couldn’t give a good explanation for their behaviour.
| HEALTH & SAFETY
Michael Ellerby, Editorial Board Member, Health & Safety Adviser and Risk Assessment & Compliance |
Use these 11 Layers of Protection to Keep Your Workers Safe from Covid
As we approach the end of the year, Covid is very still with us, and we are currently in the shadow of the Omicron variant wave of infections. One of the most effective ways to protect your workers is to provide multiple layers of protection rather than one single strategy. This offers protection through several barriers, so that if one barrier is compromised, another will provide protection to the worker. Read on to discover the most common and effective layers of protection to use in your organisation.
- Minimise Contact Between People
Use these measures:
- Working from home or hybrid working, as appropriate.
- Social distancing (encouraging people to keep their distance from each other in the workplace – such as the 2 metre separation).
- Avoiding/reducing the need for face-to-face meetings unless absolutely necessary (consider using video calls or phone calls).
- Discouraging unnecessary visitors to the premises and controlling contractors carefully.
- Considering staggered start times to reduce the potential of close contact when arriving/leaving working. Staggering worktimes for break can also help to reduce contact.
2. Avoid Inhalation of the Virus in the Workplace
Use these measures:
- Ensuring that the premises have good standards of ventilation, with regular air changes (not just recirculated air). This may include opening windows.
- Appropriate use of CO2 monitors to demonstrate that the ventilation is sufficient.
- Encouraging the use of face coverings when moving about within the premises.
- Avoiding the need for face-to-face working (such as by providing screens, or changing patterns to allow side-by-side working).
3. Clean Premises
Use these measures:
- Ensuring that the premises are cleaned regularly (discuss the cleaning regime with the cleaners) and ensure that touch points (such as door handles) are prioritised.
- Encouraging people to clean any of the common areas that they have used (meeting room tables, dining areas, etc.).
4. Premises Maintenance
Ensure that the ventilation and the heating system are maintained to ensure good performance and help with worker protection.
5. Dress Code
Considering relaxing the dress code to allow workers to wear layers of clothing to tolerate cooler, more ventilated conditions.
6. Personal Hygiene
Use these measures:
- Reminding workers about the advantages of good personal hygiene and hand washing practices.
- Providing sanitising materials to supplement the handwashing regime (not to replace it).
7. Public Health Initiatives
Use these measures:
- Encouraging workers to attain and maintain their Covid vaccination status.
- Reminding workers not to come into work if they feel ill or are displaying Covid symptoms. Enforce the rules and requirements for self-isolation for those with Covid.
- Encouraging all those who may need to attend the premises to undertake a Lateral Flow Test (with a negative result) before coming to site.
8. Risk Assessment
Keep your Covid-19 Risk Assessment up to date, and monitor the changes that may be required to meet changes in the workplace or changes in government guidance or rules.
9. Communications
Delivering toolbox talks or updating site induction training to reflect the enhanced risks from Covid.
10. Preparation for Staff Absences
Making sure that you have contingency plans for dealing with unexpected staff absences (such as first aiders, fire wardens, but also managers supervisors and workers, etc.)
11. Mental Health
Use these measures:
- Establishing suitable and simple ways of staying in touch with people who are working from home and may be feeling isolated.
- Considering provision of Mental Health First Aiders and/or Mental Health Champions.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Christmas Shutdowns and How this Works with Employees’ Unused Holidays
During the Christmas and New Year period, your employees may choose to take annual leave. Alternatively, you may shut for the Christmas period, requiring employees to keep a certain number of days’ leave for the period while you are shut. Whatever happens, your employees may have some unused holiday left which need to be dealt with.
Statutory Entitlement to Leave
Workers have a statutory entitlement to 5.6 weeks paid annual leave each year. Where a worker works 5 days a week, this translates to an annual leave entitlement of 28 days.
The right to 5.6 weeks paid leave also applies to part-time and casual workers. A worker who works 20 hours a week would be entitled to paid annual leave of 112 hours.
What About Bank Holidays?
There are a number of bank holiday over the Christmas and New Year period. This year, they fall on 27 and 28 December (because Christmas Day and Boxing Day fall on a weekend), and on 3 January 2022 (because New Year’s Day falls on a Saturday).
Workers do not have a separate right to bank holidays in addition to their statutory leave entitlement – bank holidays form part of their statutory entitlement. Nor does an employee have a right not to work on a bank holiday.
Paid Leave
As noted above, workers have a statutory right to paid leave. The holiday pay rules work so as to give the employee broadly what they would have earned had they been at work.
The calculation of a week’s pay depends on the type of work that the worker does and how they are paid. In a straightforward case where the employee is paid the same amount each week or month, a week’ pay is their normal pay for a week.
Where a worker works shifts and works a fixed number of hours each week, a week’s pay is the average number of weekly fixed hours that they have worked over the previous 52 weeks at their average hourly rate. A week’s pay for workers with no fixed hours, including casual workers and those on zero hour contracts is found by taking their average pay of the previous 52 weeks. However, only those weeks in which the worker was actually paid are taken into account, meaning you may need to go back further than 52 weeks to get 52 weeks of earnings. However, you cannot go back more than 104 weeks. Where the worker has worked less than 52 weeks, their holiday pay is based on their average pay for the number of weeks that they work.
Untaken Leave
Many companies have a leave year that coincides with a calendar year. Workers do not have a right to carry over untaken leave or for it to be paid. Where a worker has leave still to take, you can request that they take it, but must give the correct notice. Rather than adopt a strict ‘use it or lose it’ policy, you may allow workers to carry over a certain number of days to the next leave year.
Where an employee leaves without taking all their accrued leave, the untaken leave must be paid.