Navigating sick pay during COVID-19

Following the news that Emanuel Gomes, a cleaner at the Ministry of Justice (MoJ), passed away from COVID-19 earlier this month, several questions have arisen as to whether enough is being done to protect vulnerable workers both physically and financially during the coronavirus crisis.

Gomes continued to work at the MoJ whilst exhibiting coronavirus symptoms as he believed that he could not afford to lose his income. This is no doubt a problem facing many workers.

In fact sick pay during this time is something of a minefield, questions being asked over whether the government or companies are doing enough to support vulnerable workers and whether there are specific measures that should be put in place to keep workers safe.

Sick pay

Individual businesses will have their own specific sick pay provisions. These will be detailed in either the employee’s contract or the company’s sickness/absence policy.

For employees of small businesses, it is likely that most will have to rely on Statutory Sick Pay (SSP) as their main source of income during these difficult times. SSP is currently paid at the rate of £95.85 per week for up to 28 weeks, and is available from the first day of sickness, if the sickness is (or potentially is) related to COVID-19.

Employees are eligible for SSP if they are sick, self-isolating or shielding by staying at home because they are at high risk.

However, with average weekly earnings of full-time employees in 2019 in the UK at £585 per week, those receiving SSP face a significant deficit in their income.

Those living in London will be particularly affected by this due to increased living expenses and may therefore think there is no alternative but to continue to work to meet their outgoings.

Workers may not be eligible for SSP, for example, if they are not classed as an “employee”. If this is the case, they also may not be eligible for other schemes, such as the Coronavirus Job Retention Scheme (CJRS), further reducing any potential income.

Yet depending on their specific circumstances, they may alternatively qualify for payments under the Self-Employed Income Support Scheme, the first payments for which have just started being processed.

Is the government and business doing enough?

Although the government has put schemes in place to attempt to keep businesses afloat to avoid mass redundancies it remains unclear whether enough is being done to support vulnerable workers, as seen in the concerns detailed above.

If companies do not ensure the safety of their vulnerable workers, they could face claims of disability discrimination along with potential liability for breach of their health and safety obligations.

Therefore, although the government has taken certain steps to support businesses and individuals which should be welcomed, a great deal of onus will fall on individual employers to ensure that they are doing whatever they can to protect vulnerable workers both physically and financially.

For example, employers can consider “topping up” SSP and, on a more practical level, can ensure that regular contact is maintained with vulnerable staff so as to take on board their particular concerns and address them appropriately when considering matters such as return to work arrangements.

Personal Protective Equipment (PPE)

Whether workers should be supplied with PPE is a complex question. Staff members such as cleaning staff are generally overlooked when it comes to health and safety welfare.

However, the recent public outcry over the lack and mismanagement of PPE in the medical profession shows that there is an imbalance between the demand and supply of PPE.

Unfortunately, this means that PPE will not be available for all workers. Companies will therefore need to carry out a detailed risk assessment of all working arrangements with particular regard to any vulnerable employees, and to consider all necessary measures to safeguard employees.

Such measures are likely to include assessing the necessity of PPE, and whether other measures should be put in place, such as staff rotation or temperature testing.

Chris Cook is partner and head of employment & data protection at SA Law