Payment for Covid-related Absence

Posted in : Seamus Says - Employment Law Discussion on 5 February 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Coronavirus-related Absence

Payment for Covid-related Absence

Scott: We had another question, Seamus, that came in now. The person who sent it in yesterday would know, it's too long to read out, and it came from an employee but it was a case of somebody who is so stressed about the situation and COVID, and the dangers of going into work. And there was a survey from the Health and Safety Executive showing that, I can't remember now, it was 25% or 50%, of all the whistleblowing complaints about health and safety that have been sent to them in the last year, they've been around issues of a failure to enforce social distancing in the workplace.

So the person that wrote into us was concerned about this, and they have an occupational sick pay scheme, but it doesn't pay out for everything. And the employers are refusing to pay in this case because he's off with stress. So is there anything around those areas where there's some kind of discretionary payments when it comes to sickness and COVID? So this person is from reading the question correctly, doesn't actually have COVID, and may not even have to shield as such, but there's dangers and there's concerns about going into the workplace and is very stressed about the whole situation. So the psychological stress and the employer saying, we're not going to pay you full pay, because you're off on stress. Any issues around that for employers or indeed employees?

Seamus: It would always give cause for concern where a statement of fitness for work has been submitted that it's been signed off by the GP or by the doctor, and, you know, on the basis of the medical evidence that the employer has it can be very difficult to argue around or behind that. And the risk would be that if there's a contractual right to occupational sick pay, or there's a company set pay scheme there, the concern would be that you could be looking at some form of breach of contract or potentially some sort of unlawful deduction of wages. And two-fold of claim, you could have somebody going off to look at a claim or possibly early conciliation or somebody that could say, "Well, look, this is just a fundamental breach of my employment rights and I'm going to resign or bring a claim for constructive dismissal." And it sounds more that, you know, that there's risk of damaging the employee-employer relationship.

I can certainly understand employers' frustrations where they feel that they are following the guidance where they're giving, you know, where they have in place all of the necessary measures, and they have an employee who maybe isn't shielding, and there's no specific medical reason for it but they're very anxious about it and that may be because there's maybe some sort of underlying health issue with the employee and maybe anxiety and things like that. And certainly, we're all very aware that this pandemic has had a toll on everybody's, you know, mental health, and we're aware of that.

But it's about managing again, it seems to me that the lines of communication need to be very clear. But the risk for the employer would be the potential of some form of claim being brought, or some sort of claim that there has been a breach of the contractual entitlements. So the employer would need to consider that carefully and maybe just review their policies and procedures to make sure that by refusing to make the payment that they're not in any breach.

And again, it's just about trying to, you know, communicate and consult with the employee, address the concerns that the employee has about the workplace, and try your best to encourage and to satisfy and make comfortable to the employee that it is a safe place to work.

Scott: Okay. Presumably though, there is nothing in law that would stop an employer from saying, "We only give full pay for certain things." You know, like, we'll give you full pay if you're off with cancer, we'll give you full pay if you got a liver issue, we'll give you full pay if you're off with COVID, but we won't give you full pay if you're off with . . . you could if you can't afford to give contractual sick pay for everything, you could have a list of certain things that are, you know, I don't know, life threatening or whatever, that would be on that list without it being in breach of statute, presumably that would be possible. I'm sure lots of organisations and things like that.

Seamus: I think that it would be. I think that you just need to be careful that you're not sort of treating anybody less favourably or you're not prioritising one person's illness or disability over another. So I don't think that there is the possibility of that and I think it's helpful. And for those circumstances that, you know, if you have a limited pot in relation to, you know, occupational sick pay that it's used and it's used for the right reasons. And certainly, I do think that there is the possibility of doing that.

I'm aware as well that employers out there have set up different sick pay schemes in relation to whether it's just a normal illness, whether it's because they have to self-isolate and whether it's because they have COVID, or whether there is some other underlying issues there as well. So certainly, there is a way and a means to deal with that if you're the employer and I suppose it's just about trying to be fair, as best you can to staff. The risk is always that it's open to abuse and that's where the employer can kind of have some difficulties and, but as I say, where you have medical evidence in front of you, it can't be difficult to move away from that.


This article is correct at 05/02/2021

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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