Employment and Immigration Law Update – Quick fire May 2020

Acas guidance on the COVID-19 pandemic and ICO guidance on workplace testing, are both covered in this month’s Quick fire.

New Acas guidance

Acas has published two sets of new guidance in relation to the COVID-19 pandemic.

It has published guidance for employers and employees on coping with mental health issues during the period of the pandemic.

A recent survey commissioned by Acas found that almost two out of every five employees who were working from home felt stressed, anxious or experienced mental health difficulties. The new guidance includes suggestions for practical steps that can be taken by employees, managers and employers to help improve mental health during this difficult period. It emphasises the importance of keeping in regular contact with work colleagues, and for employees to raise any particular problems such as childcare responsibilities or workloads with their manager. It reminds managers of the importance of being understanding towards staff who are working in new or unexpected ways and of dealing sensitively when talking about difficult changes in the workplace. The guidance also highlights possible signs that an individual’s mental health might be compromised. There are links to a number of useful websites and resources at the end of the guidance.

Acas has also published new guidance on conducting disciplinary and grievance procedures during the COVID-19 pandemic. The guidance makes it clear that the existing Acas Code of Practice on disciplinary and Grievance Procedures continues to apply, and that in each case it would be for the employer to decide whether it is fair and reasonable to either start or continue a disciplinary or
grievance procedure if an employee is furloughed, following social distancing (in the workplace) or working from home.

The guidance makes it clear that a furloughed employee can participate in a disciplinary or grievance investigation or hearing, whether they are the subject of the proceedings, chairperson, note-taker, witness or companion. However, participation must be ‘voluntary’ and must take place in accordance with current public health guidance.

It is important to note that under the Government’s Job Retention Scheme, employees must cease all work for the employer during the furlough period. Arguably, those acting as an investigator, chairperson or note-taker could be regarded as providing a service to their employer, which would potentially mean that the employer could not claim for reimbursement of wages for those individuals. Whether in practice this is something that HMRC will take into account in any future auditing exercises will remain to be seen.

Workplace testing for COVID-19

New guidance, in the form of FAQs, has been published by the Information Commissioner’s Office (ICO) on workplace testing for COVID-19.

The guidance covers the applicable data protection legislation and the lawful basis for workplace testing. It explains the requirement for employers to undertake a data protection impact assessment before testing and to keep adequate records to demonstrate compliance. It also covers the principles relevant to data collection and retention, as well as data security and maintaining confidentiality. If employers are considering using temperature checks or thermal cameras for testing and monitoring staff, the ICO emphasises the need for transparency and for any such monitoring to be both necessary and proportionate.

Statutory sick pay

In conjunction with the launch of the Government’s new ‘track and trace’ scheme, new regulations have been brought into force with effect from 28 May 2020 to specify that those who are contacted and told to self-isolate for 14 days are entitled to receive statutory sick pay (SSP). Entitlement to any contractual sick pay will depend on the terms of their contract.

Employers can also now reclaim SSP under the Coronavirus Statutory Sick Pay Rebate Scheme, which opened for online claims on 26 May 2020. This scheme is available to employers with fewer than 250 employees (as at 28 February 2020), and who are claiming in respect of an employee who is eligible for SSP due to coronavirus. This applies whether the individual is ill themselves, or is self-isolating or shielding. For further information see the employer guidance.

This article is from the May 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.