Swine flu – who pays?


Date: 26 August 2009

Sick pay Pandemic or not, people off sick with 'flu are covered by their normal sick pay rules.

Everyone is entitled to statutory sick pay (SSP) but this only applies after three 'waiting days' and pays £79.15 a week to anyone earning £95 a week or more. Employers may contract to pay additional sick pay above SSP, but there is no default entitlement – it depends what the contract says. And there's usually a time limit on sick pay, so an individual's sick pay will depend not only on the sick pay scheme, but on how much sick pay they have already had.

Medical certificates

There is no need for anyone to visit their GP to get a medical certificate for the first week of absence. Individuals can 'self certify' for SSP for the first week, and most employer 'top-up' schemes follow that pattern. Individuals who are off more than one week will need a medical certificate to keep claiming SSP. They should phone their GP surgery to find out how to get one. Usually it is necessary to be seen by a GP but if there is a real outbreak of mass 'flu, there may be some temporary change of rules. This would certainly help free up GPs. Let's hope someone has the sense to do this if needed.

Family commitments

If schools are shut, then parents may be eligible for unpaid "dependants leave" in order to arrange care for the children. If the children get flu this will also apply. This is normally a brief period of unpaid emergency leave – say up to 48 hours. "Dependants leave" applies equally to elderly or other relatives, or members of the household dependant on an individual for care. The time off is to arrange care – there's no general legal right to time off to look after a relative or dependant. And there is no general legal right to be paid for any of this time. Some employers may agree for annual leave to be used. Others may agree for time to be made up later, but they are not obliged to.

Workplace closed by employer

Anyone working in schools or hospitals is covered by national and local agreements that deal with what to do if the workplace is closed. If the contract provides for flexible working, annual hours, or homeworking, then these provisions will normally apply if the workplace closes.

For ordinary workers on standard contracts, a lot depends on whether the employer has the right to make unpaid layoffs (sending the worker home without pay). If the contract itself does not expressly say that the employer may lay off without pay, then ordinarily any layoff would have to be paid. In an unpaid layoff, the employee is still entitled to statutory "guarantee pay", paid by the employer. For this, a "layoff" is a day when less than 50% of ordinary work was provided. For the first five days layoff in any 3 month period, employees are entitled to 50% of their normal basic pay subject to a maximum of £21.50 per day. If the government orders a general closure of workplaces, it may be that contracts are 'frustrated' by a supervening event. Technically this may mean that there is no obligation on employers to pay during the period of 'frustration'. Frustration is a technical legal term, and does not simply mean "feeling upset". We will revisit this, if necessary, in a later blog.

Disabled or vulnerable workers

If an individual has a medical condition that make them more vulnerable to 'flu, they may be advised by their GP to avoid public places. This may affect them getting to work, or being at work. If the individual is disabled within the meaning of the Disability Discrimination Act (DDA), then the employer will need to consider making "reasonable adjustments" to their duties to take account of their condition. The DDA normally deals with long term adjustments, rather than short term ones. But it would be wise to make appropriate adjustments – for example, if you could arrange for people to work effectively from home, it would be silly not to do so.

Similarly if a pregnant woman is advised to avoid the workplace, you should make appropriate adjustments to her duties. But adjustments should be based on qualified medical advice, not simply on an employee's self-diagnosis of some particular threat.

Too nervous to come in

Employees who are frightened may decide not to attend work to reduce their risk of infection. If they are not ill (or a vulnerable worker) they are not entitled to be paid or to claim statutory sick pay. Health and Safety Employers may have their own health and safety plans for 'flu pandemics. These would normally include:

  1. Reducing business travel
  2. Reducing face to face meetings
  3. Reducing attendance at work/commuting by using alternative technology
  4. Encouraging workers to take time off as soon as any symptoms showed, rather than struggle in and infect their co-workers
  5. Encouraging home working where possible.

We are happy to deal with queries on this subject by email: [email protected].

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.

Tel: 08452 303050 Fax: 08452 303060

Website : www.irenicon.co.uk.

You can follow Annabel on twitter – http://twitter.com/AnnabelKaye

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