Public Sector Guidance

When should an employee self-isolate?
Any person presenting with a high temperature (above 37.8) and/or a new persistent cough and/or a loss of, or change to taste/smell, should self-isolate for 7 days and should book a coronavirus test.

In addition, employees residing with any person showing symptoms should now isolate for 10 full days.

Travel between countries is severely restricted and on 19 March 2020 the Foreign Office advised against all but essential international travel. Any employee returning to the UK should now self-isolate for 10 days.

When will employees be eligible for a coronavirus vaccine?
The Government has published a priority list for distributing vaccination against coronavirus. Phase one of the programme will see the following groups vaccinated in priority order:

1. residents in a care home for older adults and their carers
2. all those 80 years of age and over and frontline health and social care workers
3. all those 75 years of age and over
4. all those 70 years of age and over and clinically extremely vulnerable individuals
5. all those 65 years of age and over
6. all individuals aged 16 years to 64 years with underlying health conditions which put them at higher risk of serious disease and mortality
7. all those 60 years of age and over
8. all those 55 years of age and over
9. all those 50 years of age and over

There is currently no plan to extend priority to any other groups of key workers. Guidance answering many key questions on vaccination in relation to employment will be available shortly.

Will employees who self-isolate continue to receive normal pay?
Employees who are absent due to illness will obviously be subject to normal sick pay arrangements.

Under the Green Book – employees who are prevented from attending work due to contact with an infectious disease are entitled to be paid normally and the period of absence will not count against the sick pay entitlement. Should the employee be confirmed as having contracted Coronavirus they will transfer to sick pay at this point. Tests are available for anyone displaying symptoms.

The government announced that employees would receive sick pay from day one of absence due to Coronavirus infection. Any LAs who have moved away from Green Book sick pay arrangements and do not pay for the first 3 days absence will need to ensure that the first three days are at least covered by SSP.

What about teachers?
The Burgundy Book contains different terms to the Green Book and Section 4 paragraph 10 sets out some information re infectious diseases, specifically paragraph 10.3, when someone in the household is suffering from an infectious disease and the teacher is unable to attend work this should be counted as sick leave/pay, however, if it is due to an infectious disease being in the workplace then it should not be reckoned against sick leave entitlement but would be for SSP purposes.

There has been no national guidance issued in relation to the Burgundy Book terms. We will update you in relation to any further advice.

Will absence for Coronavirus count towards sickness triggers?
The NJC circular dated 6 March 2020 recommends that LAs consider discounting absence relating to coronavirus in terms of sickness triggers due to the unprecedented nature of the outbreak. This guidance remains current.

What is the position if employees are unable to attend work due to school closures?
If employees are unable to attend work due to enforced school closures LAs will need to apply their flexible working and special leave arrangements. Consideration should be given to extending flexible working arrangements for example by changing core hours and/or extending the working day. If it is possible for the employee to work from home this will not affect pay. Where it is not possible for an employee to work from home, special leave policies and time off for dependants entitlements will apply

Should we send staff who are unwell home?
As of 5 January 2021 a third national lockdown began and the government instruction is that everyone who can work from home, should work from home. However where employees do need to attend a place of work the NJC circular dated 6 March 2020 and advice given on 12 March relating to anyone displaying symptoms of a cough or fever should be followed. These employees should be sent home at the earliest opportunity and self-isolate for 7 days. The NJC circular states that consideration should be given in relation to at risk groups and extending flexible working arrangements as far as possible should be considered to both protect provision of services and to recognise the employer’s duty of care.

Who should attend work?
Similar to the first lockdown which commenced on 22 March 2020 the government has re-introduced stringent measures from 5 January 2021 instructing the whole country to stay indoors apart from a few specified reasons for leaving the home.

These are:

• shop for basic necessities, for you or a vulnerable person
• go to work, or provide voluntary or charitable services, if you cannot reasonably do so from home
• exercise with your household (or support bubble) or one other person, this should be limited to once per day, and you should not travel outside your local area.
• meet your support bubble or childcare bubble where necessary, but only if you are legally permitted to form one
• seek medical assistance or avoid injury, illness or risk of harm (including domestic abuse)
• attend education or childcare – for those eligible

All local authority staff who can work from home should now be working from home. Each local authority will have identified who their key workers are and this should align with the government definition. Our regional guidance on key workers can be found here.

How do we provide evidence so our key workers can travel to work?
Employers can produce a letter confirming the job role the employee is required to carry out and that this is classified a key worker. As well as this documentation being provided to schools to demonstrate eligibility for a place in the emergency education provision, it may be useful to demonstrate a need to travel to and from work. It is possible that following implementation of the third lockdown on 5 January 2021 people may be challenged by the police with regards to their reason for being out of the home. The DHSC stated that there is currently no requirement for workers to be carrying official paperwork like other European countries however it may be something that is considered in future. The DHSC stated “If asked by police the purpose for their journey those working in e.g. the social care sector should simply state they are travelling to carry out work that cannot be done at home, and explain their key worker status. If employers feel that their staff would feel reassured by it, we suggest they provide a hard or electronic copy of a letter from their employer explaining their key worker status and why travel to a place of work is essential”.

Who is considered high risk?
In the government announcement on 16 March 2020 high risk groups are recommended to implement the measures and restrictions, these groups remain unchanged. To recognise the employer’s duty of care any employees falling into the high-risk categories below should adhere to the key new measures. Those previously identified as CEV have now been instructed to remain at home. These employees will receive a letter or text message informing them that should return to shielding.

High risk groups are defined as

• pregnant women,
• people over the age of 70
• those with certain health conditions (other adults who would be offered a flu vaccine)

The instruction for high risk groups is:
They should remain in their home should not leave the house for any reason unless it is essential. They are permitted to work from home where they can.

Should we ask staff to wear face masks?
Face coverings are required to be worn in most indoor environments. Your covid-19 secure workplace risk assessments should identify where staff need to wear face coverings.

The advice Government advice on PPE remains that PPE is necessary for those in Health and social care roles where they are in contact with infected people, people suspected of being infected or those who are highly vulnerable https://www.gov.uk/government/collections/coronavirus-covid-19-personal-protective-equipment-ppe

https://www.gov.uk/government/publications/face-coverings-when-to-wear-one-and-how-to-make-your-own/face-coverings-when-to-wear-one-and-how-to-make-your-own

What precautionary measures should we ask staff to take in the workplace?
Where staff are unable to work from home and need to attend a place of work they should be reminded of the following advice:

• Maintaining good hand and respiratory hygiene such as regular hand washing and using disposable tissues when coughing or sneezing.
• Washing hands before eating, drinking, taking medication, applying make-up, inserting contact lenses etc.
• Ensuring cuts and grazes are washed immediately with soap and running water and a dressing applied, and that other wounds are kept covered.
• Disposing of tissues immediately into a bin.
• Safe food practices
• Avoiding close contact, when possible, with anyone showing symptoms of respiratory illness such as coughing and sneezing.

Staff who can work from home should be encouraged to ensure they have their laptops and other work equipment with them at all times to enable them to work from home should an unexpected need to stay at home arise.

Covid-19 secure workplace guidance should be followed at all times and risk assessments must by in place.

What if someone with Coronavirus has come into work?
If an ill employee is subsequently diagnosed with Coronavirus Public Health England (PHE) health protection team will get in contact with the employer to:

• discuss the details of the case
• identify employees and other people who have been in contact with the affected person
• carry out a risk assessment
• advise the employer on any actions or precautions to take

What should an employer accept as evidence of the need for an employee to self-isolate?
There are no official documents being issued so LAs are free to decide whether verbal notification is sufficient or whether they require an employee to produce any evidence. Where an employee has travelled abroad to a country of concern you could seek evidence of the dates and destination of the holiday. Employees could be asked to send a screen shot of the advice to self-isolate if they have used the NHS 111 on-line service or are using the Track and Trace App. You could email employees a short declaration form so the employee states the reason for the need to self-isolation (i.e. returning traveller, contact with known case).

Should an employee come to work if their partner/someone in the household is self-isolating?
No. As per the guidance issued on 16 March 2020 anyone who lives with a person who is self-isolating due to symptoms should begin a period of self-isolation themselves for 14 days.

Can employees undertake other roles/work?
Please see guidance and redeployment FAQs by clicking here

What happens if employees (including key workers) are refusing to work?
In the current situation some staff are being asked to move away from their normal duties and into roles which are critical for the maintenance of essential services. Where possible staff will be asked to move to a role with similar duties or in a related area. This may not always be possible however, and LAs need to maintain flexibility and be responsive in these difficult times. A risk assessment should be undertaken to ensure the appropriate training and support is given, as well as any Personal Protective Equipment (PPE) and safe working practices needed whilst alternative work is carried out.

Employees should raise any particular concerns with their line manager in the first instance, who will consider individual circumstances on a case by case basis. The reason for the refusal must be identified and where the reason is considered legitimate redeployment may not go ahead. However employees cannot refuse a reasonable work instruction and disciplinary procedures may be appropriate. At this time the view is that asking all employees to support the emergency response is reasonable under the extraordinary circumstances and that as public sector employees we have a duty to deliver the government’s strategy in responding to the crisis. At present there is no recommendation that pay is automatically stopped for refusal to carry out alternative duties. Legal advice should be sought in any situation where this is being considered.

What is the current risk level in the UK?
As at 5 January 2021 the risk level in the UK was raised to the highest level – 5 where there is a risk of the NHS being overwhelmed.

In the case of sickness absence, self-isolation or any other situation where casual staff are unable to attend work do they need to be paid?
The key thing is to establish whether the individual is truly casual. This means that there is ‘no mutuality of obligation’ in that you are not obliged to offer work and the person is not obliged to take up the offer of work. Where this is genuinely the case and any work done by the individual is purely ad hoc then it may not be necessary to make payments. If, however, there is a pattern of work, even if it is a small number of hours, and the only reason they are not working is due to the Coronavirus, then they should still be paid, based on the average pay over the reference period. Some Local Authorities have moved “regular casuals” onto fixed term contracts to make their position clearer. The basic principle is that nobody should be worse but neither should any person be better off than if they had been available for work. If in doubt about whether to pay or not you should seek advice on a case by case basis.

Do we need to pay overtime?
Obviously where employees are working additional hours they need to be compensated financially with the appropriate overtime payments.

Where employees are working from home you need to establish what hours they are working and what hours you need them to be working. If this includes a requirement for overtime then all hours worked should be paid for in accordance with individual contracts of employment (e.g. overtime and enhancements may not be made above scp 28 where the salary can be set to include such additional work).

Where employees are self-isolating or unable to work from home because their role cannot be carried out at home and no alternative duties are available, basic contractual pay should be honoured but there is no obligation to pay overtime unless it is contractual (rarely seen in Local Government contracts). An argument could be made that where overtime has been regular this should be considered and individuals and unions may argue that this is “normal pay”. Currently the legal advice is that basic contractual pay should be honoured. If you think you have a case where overtime should be included please seek specific advice.

Does the Job Retention Scheme apply to Local Government workers?
The Government has announced that all employers, including local authorities, which, due to the effect of the virus, would need to make their employees redundant, can instead designate then as furloughed (subject to the terms of their contract or agreement with the employee). However, Government guidance on the scheme makes it clear that while the scheme is available to public sector employers, the Government does not expect the scheme to be used by many of them, as they will be continuing to provide essential public services. The guidance also states that where employers receive public funding for staff costs, and that funding is continuing, it expects employers to use that money to continue to pay staff in the usual fashion. Details of the scheme which has been extended until the end of April 2021 are available here

Has any guidance emerged on how to treat IR35?
The Government have not currently provided any advice on how to treat IR35 staff. The current view is that decisions about the status of any staff should be based on whether the Local Authority had budgeted for that work to take place and therefore the pay for the individual in line with the contract should be maintained.

The view on whether IR35 staff can be furloughed or not follows the same logic in that if those workers were budgeted for through central funds then there is financial provision to continue to pay these workers rather than to furlough them. Where furlough may be appropriate is when a role is financed through income generation. As IR35 workers are being paid from a budget, furlough does not apply. The advice is to treat IR35 workers as an employee and also recognise that the government are not expecting Local Authority’s to use furlough where finance for these posts are still available. We will keep you updated on further advice on this.

Are the NHS paying honorariums?
NHS have not made any decisions to pay Honorariums nationally. The NHS have a very regulated and rigid pay structure which leaves no room for additional payments of this kind. We are not aware that the NHS are doing anything formally however there may be local decisions that are being made. We will share any updates on this as and when we are informed.

Agencies are requesting/demanding schools to furlough agency staff. What is the legal stance regarding this?
The crux of the matter is that in order for furlough to be applied, the employee needs to be on the organisations PAYE/payroll therefore it will be the agency’s decision and responsibility to furlough agency staff and not the schools. The LGA have provided guidance on agency worker pay where the school will continue to pay for agency workers if their support is required LGA Covid-19 Schools guidance:  Updated 7th April (from 3 April)

“Schools will continue to receive their budgets for the coming year as usual, regardless of any periods of partial or complete closure….We expect schools will draw first on their existing staff to maintain necessary provision, but schools may continue to need supply teachers and other temporary workers throughout this period. We encourage schools and employment businesses (agencies) to continue to liaise on any potential need to ensure workers are available where required.”

What should I do about an agency admin worker who started on 20 January to do an admin role. The assignment was until 1 May 2020. She was told to self-isolate for 12 weeks and whilst she has done some work from home; the majority of the work really needs to be done in the office as it involves printing off letters (this is a key worker support role work). Do I continue to pay her until 1 May 2020?
In advising you on an approach to manage this there are a number of considerations:

• Can you redeploy her to another area where she can fulfil her full 37 hours so that she is being fully utilised?
• Have you spoken to the agency about her contract to date and understood the agency as your suppliers position in line with Procurement Policy Note (PPN) 02/20

If your response to first point is that there is no available work to assign her to/ redeploy her to then you have a number of options:

1. In line with the government guidance you could continue to pay the worker until 1st May in full as you would if someone were on a fixed term contract. Please note that this is guidance from the government and it not enforceable.
2. You can provide the right notice in line with the contract and end the contract early. This is in line with employment law and you have the provision to do this in the terms of the agency agreement.
3. You can use the guidance contingent workers by the cabinet office and pay the worker 80%/£2500 cap – you will need to discuss this approach with the agency in terms of taking this option and how to process the time sheets etc – the potential future risk is that this appears to be an unaligned to the equal treatment in relation to “basic working and employment conditions – Agency worker regulations 2010
4. There is a strong sense to support the supply chain and this part of the flexible contingent labour market and this is the motivation for the government to recommend the options that I have highlighted in point 1 and 3 above.

Can employees refuse to undergo a coronavirus test?
Managers should first seek to establish the reason for refusal. Where the employee may have difficulty in attending a test centre alternatives should be explored and this may mean that testing of the individual is not possible. It may be critical to establish whether a key worker or someone they live with has the virus or not in terms of maintaining service provision. Local Government employees are subject to a provision in their terms and conditions which means that the employer has the right to request that they submit for reasonable medical examination, and therefore refusal without good reason could amount to a failure to follow reasonable instruction. However, careful consideration of the case should be made before taking any action and the provision obviously does not extend to members of the household who are not employees.

What happens if employees are refusing to work due to a lack of PPE resulting in a statutory function not being delivered?
The LGA have taken extensive legal advice on the matter which has been circulated to Councils. The first issue that arises is the question of whether the council can act to seek to make the employee carry out the work. That would normally take the form of disciplinary action and/or withdrawing pay.

The question of whether such action was legitimate would depend on whether the council’s requirement for the employee to carry out the work was within the terms of the employee’s contract, and the instruction was reasonable. Amongst other factors this would take into account the council’s duty to provide a statutory service, the steps it has taken to provide for the employee’s health and safety and the employee’s personal circumstances, for example, do they live with someone who is in a vulnerable group. In circumstances where the employee was not being provided with PPE in accordance with HSE and PHE guidelines, and the refusal to work was on account of that, then is very unlikely that any such disciplinary action or withdrawal of pay would be legitimate and it could lead to successful unlawful deductions from wages and/or unfair dismissal claims (including ones alleging whistleblowing and/or detrimental treatment/dismissal on health and safety grounds).

In any event, even if the employer’s action was legitimate, the employee could still refuse to work, and a council could not then seek a court order requiring the employee to carry out the work. This is because section 236 of the Trade Union and Labour Relations (Consolidation) Act 1992 prohibits a court from taking such action.

If a council was failing to provide a statutory service, then the most common form of action it could face would be judicial review. The relevant legislation itself may also contain appeal/remedy provisions which could be enforced against the council through the courts.

In terms of judicial review, the following remedies are available for the court to grant to the claimant if their application for judicial review is successful:

• Court orders
  • quashing orders (the original decision is nullified and remitted back to the decision maker for reconsideration who must reconsider the decision in light of the court’s findings)
  • mandatory orders
  • prohibiting orders
  • injunctions
  • declarations
  • damages.

It should be note however that judicial review is a discretionary remedy. Therefore, the court has considerable leeway when assessing whether relief should be given to the claimant. It is important to note though that because of section 236 of the Trade Union and Labour Relations (Consolidation) Act 1992, a court could not make an order compelling an employee to carry out work to deliver the statutory service.

Can a furloughed employee take part in a disciplinary or grievance process?
Yes, following consideration of a number of factors. Employees have the right to raise a grievance during a period of furlough and it is possible to continue with a disciplinary case involving a furloughed employee. You will still need to apply your assessment of whether or not to pursue a case, including whether or not a fair process can be followed. WME have issued a framework of guiding principles to help with this. In addition ACAS have issued guidance regarding furloughed employees which states that during a period of furlough employees can take part in a disciplinary if it is on a voluntary basis and can be carried out in line with current public health guidance.