IT would seem the UK is on the edge of a precipice in relation to Covid-19 if the experience in countries such as China, South Korea, Iran and, closer to home, Italy, is anything to go by. In response, broad plans to “contain delay, research, mitigate” have been announced by both the UK and Scottish governments.
In terms of scrutiny of such plans, there is increased focus upon employee sick pay and the extent to which our system (with employment law reserved to Westminster) provides adequate protection.
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The manner in which China appears to have halted the spread of the virus is perhaps an exemplar for the UK to follow. However, a comparison of how that country is dealing with employee rights and sick pay during the virus reveals a stark contrast with the UK’s approach.
By law in the UK, employers must pay Statutory Sick Pay (SSP) to employees who meet the eligibility conditions. These conditions include:
• the employee is off sick (incapacitated by sickness) for at least four days in a row (including non-working days)
• the employee earns on average at least £118 per week (before tax)
Casual and zero-hours workers can get SSP as long as they meet these conditions. Similarly, agency workers via the employment agency.
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The UK Government announced last week that the first three days of sickness absence (“waiting days”) are no longer applicable. Hence, assuming the other qualifying criteria are met, SSP should be paid from day one of sickness absence rather than day four. Despite the apparent largesse of Johnson’s announcement, it will be employers who meets this cost (the Percentage Threshold Scheme, which allowed employers to reclaim in certain circumstances, was abolished by the Tory/LibDem government in 2014).
Whether self-isolation counts as incapacity for SSP purposes is subject to current legal debate. The Advisory, Conciliation and Arbitration Service (Acas) advise that it is good practice for an employer who offers enhanced contractual sick pay to pay this during a period of self-isolation – this is not mandated under UK law, however.
Towards the end of January, the Chinese Ministry of Human Resources and Social Security, along with local labour authorities, issued notices on stabilising labour relations and employee measures during the period of epidemic prevention and control. As part, extensions to Chinese New Year public holiday periods were announced.
Under Article 42.2 of China’s Prevention and Control of Infectious Diseases Law, 1989 (amended in 2013), a local government may suspend employers’ work and business operations, as deemed necessary, in the event of an outbreak of an infectious disease, subject to appropriate approvals. Employers are obliged to suspend work and operations as directed. Further to Articles 64 and 66 -68 of the Emergency Response Law, 2007, an employer faces severe sanctions for failure to adhere to measures stipulated in order to contain and control the spread of a virus.
Where an employee is a patient with the virus or suspected patient (or has come into close contact with a coronavirus patient or suspected patient) and is unable to work due to the government quarantine or other state-ordered emergency measures, the employer must provide the employee their normal pay (under their contract of employment) during the applicable period. For an employee who is unable to take leave due to virus outbreak prevention/control, the employer must provide days off-in-lieu. Where an employee works during the applicable period and is unable to utilise the days off-in-lieu, they must be paid 200% of their regular pay (in lieu).
In cases of suspension of production within a wage payment cycle, the employer is obliged to pay the employee their normal pay (under their contract of employment) during the applicable period. Further, where the period goes beyond a wage payment cycle, the employer must pay wages to an employee (who provides normal labour and regular work) at a rate at least equivalent to the applicable local minimum wage. Where an employee does not provide regular work to the business, the employer must pay living expenses to the employee in accordance with applicable laws (such as within the province/municipality/region).
The above comparison perhaps demonstrates starkly an ill-preparedness of the UK Government, which is contrary to the stated “contain, delay, research, mitigate” plans. Of course, if employment law was devolved or Scotland was an independent country, our government could take action to amend legislation and sick pay rights to better prepare and protect, including learning lessons from the experience and practice in China. Will the Covid-19 virus outbreak be a salutary lesson for the people of Scotland on the negative impact of the lack of power and control over our own affairs?
George Wilson
via email
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