UK COVID-19: launch of online scheme to reclaim SSP, 5 steps to working safely, new guidance from ICO, EHRC and ACAS

1) This morning the Government announced that an online Coronavirus Statutory Sick Pay Rebate Scheme will be launched on 26 May for small and medium-sized employers to recover Statutory Sick Pay (SSP) payments they have made to their employees due to COVID-19-related absence.

• Employers with a PAYE payroll scheme that was created and started on or before 28 February 2020 can claim provided they had fewer than 250 employees on 28 February 2020.
• For each employee, the repayment will cover up to 2 weeks' inability to work while self-isolating due to having or living with someone who has COVID-19 symptoms (covering any periods from 13 March 2020), or shielding (covering periods from 16 April 2020).  Employers can recover the weekly rate of SSP (£94.25 before 6 April 2020 and £95.85 from 6 April).
• A claim can be made from both the Coronavirus Job Retention Scheme and the Coronavirus Statutory Sick Pay Rebate Scheme for the same employee, but not for the same period of time for that employee.
• Further details are available in the guidance Check if you can claim back Statutory Sick Pay paid to employees due to coronavirus (COVID-19).
• Updated 26 May: the Government has published new webpages Claim back Statutory Sick Pay paid to your employees due to coronavirus (COVID-19) and Coronavirus Statutory Sick Pay Rebate Scheme: service availability and issues

2) Following on from last week's guidance on creating COVID-19 Secure workplaces, the government has also published "Practical actions for businesses to take based on 5 main steps".  Action points are given under 5 headings:

1. Carry out a COVID-19 risk assessment
2. Develop cleaning, handwashing and hygiene procedures
3. Help people to work from home
4. Maintain 2m social distancing, where possible
5. Where people cannot be 2m apart, manage transmission risk

The government has also updated the guidance for the Access to Work scheme to make clear that eligible disabled employees may claim financial support where they need to work from home as a result of the COVID-19 pandemic

3) The Information Commissioner's Office (ICO) has published a helpful new set of FAQs for employers on COVID-19 workplace testing.  The ICO accepts that employers will often be able to show a legitimate reason for processing health data in compliance with the GDPR, as long as they are not collecting or sharing irrelevant, inaccurate or unnecessary data.  Employers should carry out, and continually review, data protection impact assessments covering any new testing activity.  Data must be processed securely and kept for no longer than necessary, and transparency will be critical.  Employers should keep staff informed about potential or confirmed COVID-19 cases amongst their colleagues, but should avoid naming individuals if possible, and should not provide more information than is necessary. The ICO notes that the use of temperature checks or thermal cameras on site may not be proportionate if the same results can be achieved through other, less privacy intrusive, means.

4) Acas has recently published guidance on the conduct of disciplinary and grievance procedures during the COVID-19 pandemic, noting that an employer will need to decide if it would still be fair and reasonable to carry on with or start a disciplinary or grievance procedure while employees are furloughed, socially distancing at work or working from home.  Relevant factors include the health and wellbeing of employees, the individual circumstances, sensitivity and urgency of the case, any reasonable objections from those involved, and access to technology and evidence.  The arrangements must allow an employee to fully exercise their right to be accompanied.

Employers should treat with caution the guidance concerning employees on furlough.  The guidance suggests that an employee on furlough can act as investigator, meeting chairperson or notetaker for an employer and can give evidence.  However, in our view, such activities would likely amount to doing "work" for the employer which is prohibited by the terms of the Coronavirus Job Retention Scheme and could therefore break furlough and remove or curtail an employer's ability to claim reimbursement for those employees under the scheme. The guidance also suggests that only voluntary involvement in a disciplinary or grievance process is permitted while on furlough, which seems odd given it is hard to characterise an employee being subjected to a disciplinary process as "doing it out of their own choice".

5) Acas has also updated its general COVID-19 guidance for employers and employees and published new guidance on mental health during the pandemic.

6) The Equality and Human Rights Commission has published COVID-19 guidance for employers on avoiding discrimination when making decisions on furlough, redundancy, working from home and so on, as well as specific guidance covering employees who are pregnant or on maternity leave.