School closures: Should parent employees continue to be paid?

Kathryn Casey-Evans, Employment & Immigration Partner, Trethowans LLP.

There have been a string of school closures since they reopened at the beginning of this month. This has resulted in many children having to remain home and self-isolate, but what does this mean for parent employees who have to remain home to look after them?

There are many different factors which come into play here and the individual circumstances will affect what pay the employee is entitled to.

  1. Can the employee work from home?

If parent employees are willing and able to work effectively from home, then they will be entitled to their full pay, at least for the hours worked.

Now this may not mean working from home in the normal sense, as parent employees will have to juggle childcare with work. Employers should be flexible and should anticipate that parent employees may not be able to fulfil their usual hours. Employers should consider whether it is necessary to agree part-time hours, extensions to deadlines, shift changes or further support as required.

  1. Is the child showing symptoms?

If the child is exhibiting symptoms of coronavirus, it is less likely parents will be able to work from home. In circumstances where parent employees need to self-isolate due to their child exhibiting symptoms, they will be entitled to statutory sick pay.

Employers should review their contractual sick pay policy to consider whether contractual sick pay is also payable in these circumstances. This will likely require a review of what constitutes ‘incapacity’ in the policy.  Many policies will not cover circumstances where an employee’s child is sick.

  1. Has the employee developed symptoms?

If the employee themselves has developed symptoms, then this will be treated as sick leave and they will be entitled to statutory sick pay as a minimum. Subject to the terms of the employer’s contractual sick pay policy, they may also be entitled to contractual sick pay.

  1. The employee has received a notification from NHS Test & Trace that both they and their child need to self-isolate

The NHS notification will require the parents and other members of the household to self-isolate where the child is exhibiting symptoms.

The rules for statutory sick pay have been extended so that employees will be entitled to statutory sick pay for the period of isolation where they have received a notification from Test & Trace.

  1. The employee cannot work from home, neither the child nor the employee is showing symptoms and the employee hasn’t received a notification from NHS Test & Trace or a public health authority

In these circumstances, the employee will not fall into any of the categories where statutory sick pay will be payable.

If they cannot work from home, then the employee may be able to take Dependents Leave. This is a statutory right to a reasonable period of unpaid time off work. However, employers may have a policy in place which provides enhanced time off and/or pay in these circumstances.

Alternatively, the employer may agree that the employee can take Parental Leave (which again, is unpaid) or that they can use some of their annual leave entitlement during this period in order to receive their full pay. 

Where the position on pay is less clear

There are a number of circumstances where the correct position on pay is less clear.  For example:

What if the NHS Test & Trace notification only requires the child to self-isolate and not the parent?

The Test & Trace notification will not require the parent employee to self-isolate unless their child is exhibiting symptoms.  Currently, the parent employee will only be entitled to statutory sick pay where their child is exhibiting symptoms and not where their child is just self-isolating. In these circumstances, employers should consider questions 1 – 5 above to see what pay the parent employee is entitled to.

What happens if the employee notifies their employer that there has been an outbreak at their child’s school and it is the employer who tells the employee not to come into work?

In these circumstances and without further guidance or legislation to the contrary, the employee would be entitled to their full pay (regardless of whether they can work from home or not).

What happens if the child has been told to remain at home by the school, but hasn’t received a Test & Trace notification?

In these circumstances, it is not the employer who has required the employee to remain at home, it is the school. Although schools are required to contact their local public health protection team and engage with the NHS Test & Trace process, currently in the absence of a Test & Trace/public health notification, the employee would not be entitled to statutory sick pay.

There is some debate amongst employment lawyers as to whether a decision in a recent case will result in employees being entitled to full pay where a third party (not the employer) requires them to self isolate. In our opinion, we do not think this will apply but this is yet to be determined.

In the meantime, employers should go through questions 1 – 5 above to consider what pay the employee is entitled to. If financially viable, employers may decide to pay full pay to be on the safe side. 

Changes to come to statutory sick pay rules?

Given the danger that a resurgence of Covid-19 presents to the UK economy, SSP may be extended by the government to cover wider circumstances like a parent needing to stay at home to provide child care. However, at the time of writing this article, this had not ben tabled.

What should employers be considering?

Regardless of any potential SSP extension, employers need to consider whether they want to give full pay in all circumstances to discourage employees from failing to disclose and/or failing to comply with direct or indirect notifications to self-isolate.

The overarching benefit of paying one or several employees full pay to stay away from work and protect the workforce may be considered money well spent against the alternative of a workplace outbreak. The latter could lead to a partial or full closure of the workplace which may be significantly more costly in the long run.

Author: Editorial Team

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