Furlough v SSP Clinically Extremely Vulnerable

MM02TON

If you are identified as someone who is clinically extremely vulnerable and the NHS have advised you to stay at home, if you are willing to go to work and your employer is wary of you doing so and has advised that you do not, is your employer entitled to only offer SSP when you are eligible for furlough?  

Jeremy535897

See https://www.gov.uk/government/publications/extension-to-the-coronavirus-job-retention-scheme/extension-of-the-coronavirus-job-retention-scheme

"2.3 Employees whose health has been affected by coronavirus or other conditions

Employees can be furloughed where they are unable to work because they:

• are shielding in line with public health guidance (or need to stay at home with someone who is shielding)
• have caring responsibilities resulting from coronavirus, including employees that need to look after children

The CJRS is not intended for short-term sick absences. If, however, employers want to furlough employees for business reasons and they are currently off sick, they are eligible to do so, as with other employees.

Furloughed employees who become ill, due to coronavirus or any other cause, must be paid at least Statutory Sick Pay (SSP). As under the CJRS previously, it is up to employers to decide whether to move these employees onto SSP or to keep them on furlough, at their furloughed rate."

MM02TON

This is great information.  I am trying to establish if it would be unlawful to expect the employee to receive SSP when they are technically putting the employee on leave because of shielding advice.

Jeremy535897

This covers SSP:

"Coronavirus eligibility

Your employees qualify for SSP if they meet the criteria and cannot work if any of the following apply:

• were self-isolating on or after 13 March 2020 because they or someone they live with had symptoms of coronavirus
• have been shielding at any time since 16 April 2020
• started self-isolating on or after 28 May 2020 because they were notified by the NHS or public health authorities that they’ve come into contact with someone with coronavirus
• were self-isolating on or after 6 July 2020 because someone in their support bubble (or extended household in Scotland or Wales) but not their own household had symptoms or tested positive for coronavirus
• have tested positive for coronavirus since 5 August 2020
• were self-isolating on or after 26 August because they had been advised to do so by a doctor or healthcare professional before going into hospital for surgery

Employees will not qualify for SSP if they are self-isolating after entering or returning to the UK, and do not need to self-isolate for any other reason."

From https://www.gov.uk/employers-sick-pay/eligibility-and-form-ssp1

If you are shielding, the employer can furlough you (it's their choice), or you can be on SSP. Once the 2 week refund of SSP is up, most employers would be better off furloughing you.

MM02TON

I understand the eligibility piece, I do not believe that a company can legally only pay SSP when they are the one making the decision to put an employee on a leave of absence and would expect the employee to receive furlough or full pay in this situation.  Can anyone advise in this regard?

Jonesy1977

I can only answer this from the perspective that if one of my staff informed me that they were clinically extremely vulnerable and that they were contacted and advised by the NHS not to work, but that they wish to disregard that advice I would have no choice but to insist that they stay at home (not least because of insurances and liability issues) in my opinion that would not make me the reason why they were to put on a leave of absence, it would simply be my duty as an employer.  The advice from the NHS in this instance is detailed here https://www.nhs.uk/conditions/coronavirus-covid-19/people-at-higher-risk/advice-for-people-at-high-risk.  The advice states that the shielded party is potentially eligible for SSP or ESA.  The employer as Jeremy mentioned does have the possible option of CJRS but this is their decision, they are extremely unlikely to offer full pay in this instance for obvious business reasons.

Jeremy535897

I think it is clear that the employer is able to pay you to work, pay SSP, or furlough you. I understand why the employer would not want you to work (assuming you cannot work from home). It would be irresponsible. The employer then chooses between SSP and furlough. All you can do is have a discussion to understand why furlough isn't their best option as well as yours.

MM02TON

The NHS Letter states that it is advisory and not a legal requirement.  

Acas states that employers can also furlough those who are temporarily unable to work because they have been advised to stay at home by their doctor because of an underlying health condition ('shielding'). 

Why would an employer choose SSP over furlough?  The intention of furlough is to provide temporary income to staff in 'viable' jobs after the pandemic.  It is not great from an employee's perspective that an employer would choose to put them into financial hardship when there is a scheme available that they are eligible for that will support them at this time.  The employee should not have to face hardship.

MM02TON

Jeremy535897 said:

I think it is clear that the employer is able to pay you to work, pay SSP, or furlough you. I understand why the employer would not want you to work (assuming you cannot work from home). It would be irresponsible. The employer then chooses between SSP and furlough. All you can do is have a discussion to understand why furlough isn't their best option as well as yours.

Thank you. 

gary83

MM02TON said:

The NHS Letter states that it is advisory and not a legal requirement.  

Acas states that employers can also furlough those who are temporarily unable to work because they have been advised to stay at home by their doctor because of an underlying health condition ('shielding'). 

Why would an employer choose SSP over furlough?  The intention of furlough is to provide temporary income to staff in 'viable' jobs after the pandemic.  It is not great from an employee's perspective that an employer would choose to put them into financial hardship when there is a scheme available that they are eligible for that will support them at this time.  The employee should not have to face hardship.

The intention of furlough was to reduce companies salary liabilities to try and prevent mass redundancy on a short term basis, not to operate as a privately administered benefit scheme. 

whilst I’m not saying it’s the right decision a company might choose to pay SSP over furlough to promote harmony amongst the rest of the employees - if most people are getting paid 100% for 100% of their usual hours wages but some people are getting paid 80% of their usual salary for 0 hours work then the rest of the employees could decide they’d also like to sit at home for “just” a 20% pay cut. 

The company might rather pay SSP than the National insurance contributions and open the can of worms dealing with the rest of the workforce grumbling or demanding furlough as they’re just lazy, have health worries of their own, perhaps live with someone vulnerable who they’d rather stay at home and protect, have childcare problems or any number of reasons or excuses why they’d too rather stay at home.

MM02TON

gary83 said:

MM02TON said:

The NHS Letter states that it is advisory and not a legal requirement.  

Acas states that employers can also furlough those who are temporarily unable to work because they have been advised to stay at home by their doctor because of an underlying health condition ('shielding'). 

Why would an employer choose SSP over furlough?  The intention of furlough is to provide temporary income to staff in 'viable' jobs after the pandemic.  It is not great from an employee's perspective that an employer would choose to put them into financial hardship when there is a scheme available that they are eligible for that will support them at this time.  The employee should not have to face hardship.

The intention of furlough was to reduce companies salary liabilities to try and prevent mass redundancy on a short term basis, not to operate as a privately administered benefit scheme. 

whilst I’m not saying it’s the right decision a company might choose to pay SSP over furlough to promote harmony amongst the rest of the employees - if most people are getting paid 100% for 100% of their usual hours wages but some people are getting paid 80% of their usual salary for 0 hours work then the rest of the employees could decide they’d also like to sit at home for “just” a 20% pay cut. 

The company might rather pay SSP than the National insurance contributions and open the can of worms dealing with the rest of the workforce grumbling or demanding furlough as they’re just lazy, have health worries of their own, perhaps live with someone vulnerable who they’d rather stay at home and protect, have childcare problems or any number of reasons or excuses why they’d too rather stay at home.

So the employee has a medical condition which has placed them into the situation of being classed as CEV.  They did not choose to be in this situation.  As well as financial impact, there is also impact upon mental health.  How many people can afford to live off of SSP?  

Having been furloughed previously and maintained on furlough for 4 months as a result of shielding advice, the process of returning to work is not easy by any means.  There is a clear differential between those who want something for nothing and those where the situation is completely outside of their control.