The Upside of Coronavirus?

The Coronavirus (Covid-19) is clearly a very serious issue from a public health and business perspective – I would say that around 60% of the questions I’ve been asked over the last week or so have been on the HR implications of it.

However, in the longer term, it may turn out to have some positive impacts for the world of work.

The first is that – because they currently have to – many organisations may realise that working from home, or other more flexible arrangements, are not a disaster and we may see a change in attitudes. Even those who still retain objections will find it difficult to argue against more flexible options if they are given evidence that it clearly works.

If your business has never used homeworking before, but may now be forced to, there are a number of important things you need to consider. This twitter thread by Gem Dale is a very useful starting point.

Clearly, there are still lots of jobs (probably a majority) that require people to attend work, but we may be surprised at the number that can be done remotely.

Secondly, in the UK, it may result in a long overdue reform of the Sick Pay system. For those who qualify for Statutory Sick Pay (SSP), they (and their employers) are bound by confusing and bureaucratic rules about “Lower Earnings Limits”, “Waiting Days” and “Linked Periods”. These date back to the time when employers were reimbursed some of their SSP costs by the Government, something which hasn’t been the case for nearly a decade. There’s no reason why a much simpler system can’t be devised that provides a basic ‘safety net’ without involving employers in complex calculations.

The crisis has also highlighted that a significant proportion of the workforce don’t even qualify for the minimum level of payment. The very low paid, some of those classed as ‘workers’ not employees, and the self-employed all miss out. Some employers have said they will pay some form of sick pay to these groups, but this has been (until today) discretionary. The majority of employment law changes next month are around limiting some of the ‘loopholes’ in employment rights and if the government continues down this road then an extension of sick pay may be one of the next areas it tackles. Indeed, the chancellor’s emergency announcement in this week’s budget may be the start – now that the bottle has been uncorked it may be difficult to reseal it.

Finally, we might see the end of presenteeism – the idea that people attend work even if unwell, because the business ‘expects it’. Having someone in your place of work passing on their germs to their colleagues because ‘there’s a deadline to meet’ is an unacceptable whether those germs are Covid-19, vomiting and diarrhoea, or seasonal colds.

None of this, of course, minimises the very real problems that Covid-19 presents to society. But, like SARS and Swine Flu, it will only be a temporary issue.

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The Mystery Number

It’s a staple of TV mysteries – the cryptic number that may (or may not) be significant to the plot. For example, ‘119’ in the new series of Twin Peaks; ‘Counting down from 730’ in Buffy or the mysterious number sequence (4,8,15,16, 23, 42) in Lost.

In employment law, we have our own mystery number: 87(4)

To be more precise, it refers to section 87(4) of the Employment Rights Act 1996, and deals with notice periods.

As most employers are aware, if you dismiss an employee, then in the majority of cases they are entitled to a period of notice. That period of notice is the longer of the minimum period laid down in the Employment Rights Act – sometimes known as Statutory Notice – or what is written in the individual’s employment contract.  During the notice period, the individual is entitled to their normal pay.

All pretty straightforward. But, if the individual is unable to work during their notice period, do they receive full pay or the pay that they are entitled to while off sick (Statutory Sick Pay – or in some cases no pay – for example)? This is where our mysterious clause kicks in.

Under 87(4). If someone has a contractual notice period that is 1 week or longer than their period of statutory notice, then the employer can legally pay sick pay rather than normal pay during notice.

So, an employee whose contractual notice is 13 weeks, but whose statutory notice is 8 weeks, would not be entitled to receive their normal pay during notice. But an employee whose contractual notice is 2 months (which is roughly 8.5 weeks) but whose statutory notice is 8 weeks would.  Fair? Not really. Confusing? Yes. The sort of thing that is likely to inadvertently trip up employers? Definitely!

Why does this rule exist? That’s the mystery. While many employment law rules, however arcane or apparently illogical, can be explained by some historic circumstance or rationale, the reason for 87(4) appears to baffle many. Unless of course you know differently (in which case please use the comments section below!)