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Coronavirus and your workers - guidance for farm businesses

View profile for Julie Robinson
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In this article we consider some of the issues facing farmers and grower employers in the light of the developing coronavirus crisis.

Farms are not professional services firms where remote working may be an alternative to being physically present on site. Remote working does not get millions of daffodils picked, lambs delivered safely or the harvester moved from one field to the next. Farm managers need to be on hand, not at home or stranded in a hotel in lockdown.

That brings its own set of challenges during a period where self-isolation is the Government’s policy for dealing with a highly contagious virus, and where lockdowns are imposed at short notice across the globe, preventing people from travelling freely to their place of work.

The Q&A below describes some scenarios and gives some pointers about how to deal with them.

My farm manager went to visit family abroad last week. She is now prevented from coming back to the UK because of a 30-day travel ban imposed in her home country. What is my duty as an employer?

Your farm manager is not ill or self-isolating, so will not be entitled to statutory sick pay (or any contractual sick pay that might be available under her contract). Subject to any special provisions in her employment contract, she is not entitled to be paid as she has not presented herself for work, even if that is through no fault of her own. Remote working is not realistic, unless you have a particular project that can be completed online and, for example, she is able to link into the farm’s IT system.

You might discuss the possibility of her taking some annual leave during her enforced absence (helping to maintain her cashflow). However, you cannot make her take leave unless her employment contract allows that, and without advance notice.

Alternatively you may decide, for the sake of your long-term working relationship, to make a discretionary payment for some of the period of absence, to help with cash flow. Subject to your own cashflow availability, you may even consider some kind of loan, to be repaid via payroll over an extended period once she is back at work. Any such loan arrangement will need to be clearly documented, to protect both parties.

Of course, if your manager were to fall ill, or were required to self-isolate, then statutory sick pay should be available, albeit she would need to make her claim from abroad.

It is lambing time, and resources are stretched. In line with government guidance, one of my shepherds has decided to self-quarantine as he just come back from a coronavirus hotspot. I understand that, but it doesn’t help me! Do I have to pay him while he’s at home?

Your worker should be entitled to statutory sick pay from day one. Whether he is entitled to contractual sick pay depends on the terms of his employment contract. Precautionary isolation, to avoid infecting others, is unlikely to be covered explicitly in people’s contracts; it would generally not fall under the definition of sickness for the purposes of contractual sick pay. Again, as per our comment on Q1 above, you may choose to go above and beyond what is required by law or employment contracts and exercise some discretion as far as pay or other support is concerned. If you do exercise discretion, take care not to exercise it in a discriminatory way (e.g. only for the benefit of the men, or the under 40s, in your workforce).

My seasonal harvest workers are directly employed and are paid on a piece-work basis (subject to national minimum wage rules). If they are unable to come to work because they are ill, what are my obligations as far as pay is concerned?

Again, you will need to check the terms of their employment contracts, and what they say about contractual sick pay. Subject to them qualifying (in terms of minimum weekly pay), your workers will be entitled to statutory sick pay from the first day of their sickness, provided it is coronavirus related. They may choose, by agreement with you, to take paid holiday to cover some or all of their absence.

I provide accommodation for up to 600 harvest workers on the farm. If they are unable to work, do I still need to provide accommodation and can I still charge for it?

As long as there is a contract of employment in place that says you will provide living space, yes, you will need to do so. (If the absence became long term, you may – if the space is needed for other workers – you may have to consider terminating contracts.) You can continue to make a charge for accommodation. Unless you have separately agreed a right to charge additional amounts for electricity and other utility costs (e.g. for consumption about a certain “normal” amount), any increase in utility costs will generally fall to you to cover.

We have a core team of directly employed workers here on farm, and a wider group of pickers that we source through an agency. What are my liabilities if pickers do not turn up for work?

The agency is the “employer”, and it will fall to them to pay statutory sick pay and any contractual pay, holiday pay etc. in line with the law and the workers’ employment contracts. The main point to bear in mind for farm businesses is not to discriminate in your treatment of agency workers. If you provide additional washing facilities/sanitiser, etc for your directly employed workers, you must do the same for your agency workers. If you make discretionary payments or pay bonuses to one group, you must make or pay them to the other.

I provide on-site accommodation for seasonal workers. Accommodation units are shared by groups of workers. Several of the workers have been advised to self-isolate, after returning from hotspots or because they are showing symptoms. What is my duty of care to the workers they share with?

Clearly, there are practical difficulties here. You may or may not have some spare accommodation at any point in time, and whilst it may be possible for the first worker affected to be housed separately, the more people affected, the less feasible an option it is. The question to ask is: what is reasonable? If you have no alternative accommodation available, it is difficult to see that you will be breaching your duty of care towards your (unaffected) workers, particularly given that your affected workers continue to need accommodation. However, you should make sure that sharers have access to the latest advice from Public Health England regarding distancing and handwashing, hygiene etc.

In reality, given emerging guidance, shared accommodation may well be treated as a household, with sharers having to self-isolate as well (and be entitled to SSP).

My workers were employed under contracts governed by the Agricultural Wages Order (AWO) and we have not amended our contractual terms since the Agricultural Wages Board was abolished in England. What am I required to pay if my workers are sick due to the coronavirus?

The Agricultural Wages Order provided for Agricultural Sick Pay, which would be at least the agricultural minimum wage (including any statutory sick pay). If you have continued to treat your workers’ employment as governed by the AWO then they may have a right to Agricultural Sick Pay, which could be payable for up to six months depending on length of service. Workers are required to present a doctor’s certificate if they are ill for more than eight days. Employers are unable to reclaim ASP.

Precautionary self-isolation is a different issue; the ASP requirement is unlikely to be enforceable if people self-isolate (unless under your direction), although affected workers will be entitled to statutory sick pay which, if you are a small employer, you should be able to reclaim in line with the recent coronavirus-related SSP regulations.

The interaction between ASP and the new SSP regime is complex. Different time periods apply and, reading government guidance, only the SSP element of ASP will be reclaimable under the new regulations, even if someone is suffering from Covid-19 infection.

Key Points

  • Manage communications so that your workers know what their position is across a range of situations.
  • Check the small print of employment contracts. What do they say about paid and unpaid leave, holiday periods and the right to be paid during sickness or absence?
  • Don’t discriminate between directly employed and agency workers on the farm, between the young and the old, between those who are well and those who have pre-existing conditions which make them vulnerable.
  • Give yourself the flexibility to change your approach over time.  Don’t commit yourself to open-ended discretionary payments that are not sustainable in the long term.
  • As far as possible, think long term and reputationally. Do you need seasonal workers to come back, or to recommend you to others as a good place to work? Do you want to encourage local workers to come and join the business?

Please note: This is a fast-moving situation. The above guidance is our understanding of the position as at 17 March 2020. However, it is intended as general guidance only; farm businesses should take legal advice based on their particular circumstances and contracts of employment.

Please feel free to contact Phil Cookson or Desley Sherwin with any queries about the issues discussed.

 

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