The Employment Law and HR Implications of Coronavirus (COVID-19)
The purpose of this document is to provide information and guidance with regard to the questions raised from an employment law perspective. It looks to answer questions commonly asked and also deal with common scenarios.
Please note that as the political and legislative landscape is constantly changing with regard to Coronavirus, we anticipate that further changes will be implemented, and this document is in no way a definite and final opinion on all employment matters related to Coronavirus and is no substitute for individual tailored advice.
Further, please note, this in no way seeks to provide any health and safety guidance or advice. Specifically, if you have any queries with regard to health and safety and how it impacts on your obligation towards Coronavirus, then you will need to seek specialist advice from your health and safety consultant.
Further guidance can be found from:
1 Recent Updates to This Document
(a) The Prime Minister stated on Monday Sunday 10th May 2020, that workers who cannot work from home, such as those in construction or manufacturing, should be “actively encouraged” to return to work from Monday 11th May. This does not apply to Wales and Scotland, both of which have not changed their previous advice.
(b) The widening of the furlough scheme as it relates to fixed-term workers.
(c) We have provided further opinion around holidays and the furlough scheme.
(d) There are numerous other minor updates and tweaks in the document.
2 Coronavirus Job Retention Scheme
The full details can be found here.
The Government has also published on 15 April 2020 the Treasury Direction to HMRC, which can be found here.
The Portal to claim wages can be accessed through this link.
Our summary of this scheme is not a replacement for reading the full guides and Direction and is not a substitute for tailored advice. In particular the Guidance remains unclear in many respects.
Coverage of the Scheme
As we were previously aware from the Chancellor’s announcement on 20 March 2020, it is a temporary scheme running from 1 March 2020 and was initially due to run for a minimum 3 months. It has now been extended for a further month until 30 June 2020. This means that any employee who started after 19 March 2020 will be excluded from the Scheme.
It is open to all UK employers that had created and commenced a PAYE payroll scheme on or prior to 19 March 2020. The scheme is optional for employers.
The updated Guidance states ‘You can only claim for furloughed employees that were on your PAYE payroll on or before 19 March 2020 and which were notified to HMRC on an RTI submission on or before 19 March 2020. This means an RTI submission notifying payment in respect of that employee to HMRC must have been made on or before 19 March 2020. Employees that were employed as of 28 February 2020 and on payroll (i.e. notified to HMRC on an RTI submission on or before 28 February) and were made redundant or stopped working for the employer after that and prior to 19 March 2020, can also qualify for the scheme if the employer re-employs them and puts them on furlough’.
There is advice limiting qualification of public sector organisations and organisations funded by the public sector and where particular jobs are funded with public money. If you fall into this category, make sure to read the full official Guidance on the GOV website. The Treasury Direction to HMRC makes no mention of the Public sector exemption.
The scheme is described on the GOV guidance as being applicable ‘if you cannot maintain your current workforce because your operations have been severely affected by Coronavirus (COVID-19)).’ It is designed to help employers whose operations have been severely affected by Coronavirus (COVID-19) to retain their employees and protect the UK economy. However, all employers are eligible to claim under the scheme and the government recognises different businesses will face different impacts from Coronavirus.
The Treasury Direction to HMRC (the official rules of the scheme’) states ‘The purpose of CJRS is to provide for payments to be made to employers on a claim made in respect of them incurring costs of employment in respect of furloughed employees arising from the health, social and economic emergency in the United Kingdom resulting from Coronavirus and Coronavirus disease.’
Employers do not need to show that otherwise the employees would have been made redundant, to qualify.
We do not know if any subsequent HMRC audit will consider the extent of such disruption as a precursor to qualification. The Treasury Direction seems to move away from this requirement. Employers are able to allocate any critical business tasks to staff that are not furloughed.
There is no reference to the employer’s affordability to pay wages being linked to qualification of the scheme.
The HMRC portal has launched. You can access it here.
Employers will be able to use the on-line system to claim for 80% of furloughed employees’ (employees on a leave of absence) usual monthly wage costs, up to £2,500 a month. Employers can claim for regular payments that they are obliged to pay their employees. This includes wages, past overtime, fees and compulsory commission payments. However, discretionary bonus (including tips) and (presumably discretionary?) commission payments and non-cash payments should be excluded.
What employers can claim has now been (partly) clarified. See here.
In addition to salary costs employers can claim the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that wage.
All payments under the scheme are subject to the usual income tax and other deductions.
Employers can use this scheme anytime during this period. The scheme runs from when the employee ceases work. Notification to the employee needs to be in writing and agreed with the employee and that correspondence kept for 5 years. Agreement can be via email.
Specifically the Treasury Direction to HMRC states that to comply ‘An employee has been instructed by the employer to cease all work in relation to their employment only if the employer and employee have agreed in writing (which may be in an electronic form such as an email) that the employee will cease all work in relation to their employment.’
It is therefore a requirement that the agreement in writing refers to the employee needing to cease all work for the employer. This is currently not referred to in the official Guidance. If you have issued a furlough letter to your employees already, you should check this point.
An employee can be placed into the scheme, taken out and placed back in again as long as the employee is in the scheme for a minimum three weeks at a time.
Types of Qualifying Employees
All employees can qualify for payment, namely full-time employees, part-time employees, employees on agency contracts and employees on flexible or zero-hour contracts. This scheme is only for employees on agency contracts who are not working.
Apprentices can be furloughed in the same way as other employees and they can continue to train whilst furloughed as long as NLW and NMW requirements are met in respect of the time they spend training. We presume that this does not mean ‘on the job’ training as this could be a thinly disguised attempt at working whilst on furlough.
The advice on fixed-term workers has changed. It now states:
If you’re on a fixed term contract; or
If you were on a fixed term contract your employer can re-employ, furlough and claim for you if your contract expired after either:
• 28 February 2020 and an RTI payment submission for you was notified to HMRC on or before 28 February 2020;
• 19 March 2020 and an RTI payment submission for you was notified to HMRC on or before 19 March 2020.
If your fixed term contract has not already expired, your employer can extend or renew it. Your employer can claim for you if an RTI payment submission for you was notified to HMRC on or before 19 March 2020.
As well as employees, the grant can be claimed by office holders (including company directors), salaried members of Limited Liability Partnerships and what are known as limb (b) workers, as long as these individuals are paid through the PAYE system.
The Guidance states that ‘Employees that were employed as of 28 February 2020 and on payroll (i.e. notified to HMRC on an RTI submission on or before 28 February) and were made redundant or stopped working for the employer after that and prior to 19 March 2020, can also qualify for the scheme if the employer re-employs them and puts them on furlough’. We do not know how long this retrospective option will be available to the employer.
An employee cannot undertake work for or on behalf of the employer or any linked or associated organisation, whilst furloughed. This includes ‘volunteering’ for the employer where services are provided to the employer or on behalf of the employer. However, the employee is able to undertake volunteering for other organisations.
The guidance confirms that an employee can take up new alternative employment with another employer when furloughed, as long as the current employer does not prohibit this. Working in another existing employment is also acceptable. An employee can be furloughed from more than one job.
Where there has been a TUPE transfer, the guidance indicates that the new employer will be able to claim using the original start date as the original commencement of employment.
The scheme does not cover employees who are on short-time working, only those who are not working at all in the same job for a minimum of three weeks. However, not all employees in a business need to be furloughed, in order to qualify.
The scheme does not override any existing employment legislation or offer employers new rights. Therefore employers need to agree in writing with the employee the variation of contract, to enable the employee to be furloughed.
To be eligible for the subsidy employers should write to their employee agreeing that they have been furloughed and keep a record of this communication for a minimum 5 years.
The Claiming Procedure and How Much Can Be Claimed
Employers need to make a claim for wage costs through the online system by clicking here.
If an employer uses an agent who is authorised to act for it for PAYE purposes, they will be able to make a claim on the employer’s behalf. However, if they use a file only agent (who files the RTI return but doesn’t act on any other matters) they won’t be authorised to make a claim for the employer and instead the employer will need to make a claim itself.
How Much to Claim
What to include when calculating wages.
Please ensure that you read the full advice. As a minimum, employers must pay their employee the lower of 80% of their regular wage or a cap of £2,500 per month.
It is the employer’s discretion whether they choose to top up an employee’s salary in excess of the 80% or £2,500 cap. However, this reduction in entitlement to 80% needs to be agreed with the employee.
For full time and part time salaried employees, the employee’s regular salary before tax, in the last pay period as of 19 March 2020 should be used to calculate the 80%.
However, discretionary bonus (including tips) and discretionary commission payments and non-cash payments should be excluded.’ The 80% that can be claimed does not include non-monetary benefits (e.g. the value of health insurance or a car).
The question arises in respect of overtime. The new guidance makes it clear that non-discretionary overtime can be claimed. This has moved away from the previous reference to ‘regular payments’ can be claimed.
From an employment law perspective we would define non-discretionary overtime, as overtime that an employer is compelled to provide and an employee is compelled to work. It remains to be seen whether HMRC will define this as strictly and wish to see such requirement set out in the employee’s written contract. There is every possibility that this will be the case.
There might be a different approach where an employee’s pay varies, where the employee is not paid a salary. In this instance where an employee has been employed for 12 months prior to a claim it is calculated as the higher figure of the average monthly earnings for the 2019-2020 tax year or the same month’s earnings for the previous year. If the employee has been employed for less than a year, an employer can claim for an average of their monthly earnings since they started work.
NMW and NLW does not apply with regards to this calculation as the employees will not be currently working. However, if employees are required to complete any training whilst they are on furlough leave, they must be paid at least the NLW/NMW for the time that they spend training, even if this means that they end up with more than 80% of their wage. The difference would have to be paid by the employer.
Further details are given in the Government guidance with regards to calculation for pension and employer’s NI.
The Government reserves the right to retrospectively audit all claims.
You can only claim for periods when your employee was on furlough. You cannot make more than one claim during a claim period – you should make your claim shortly before or during running payroll.
You must claim for all employees in each period at one time – you cannot make changes to your claim. You can make your claim in anticipation of an imminent payroll run, at the point you run your payroll or after you have run your payroll. Claims can be backdated from 1 March 2020 where employees have already been furloughed from that date. A claim cannot start any earlier than the date the employee was first furloughed.
There is nothing to prevent employees dipping into and out of the scheme as long as they are in the scheme for a minimum 3 weeks at a time. Employers will be able to rota employees on furlough leave in appropriate circumstances which may make furlough selection easier.
What to do After You’ve Claimed
The payment will be paid to employers direct to a UK bank account.
The advice states that ‘you should make your claim using the amounts in your payroll – either shortly before or during running payroll’. It does not expressly link qualification to making payment to employees, merely running the payroll. This also does not seem to square with weekly payroll runs, if claims can only be made every three weeks.
It may be that those employers who do not have the funds to make payment to employees can agree with employees to defer payment until receipt of the scheme funds.
You must pay the employee all the grant you receive for their gross pay, no fees can be charged from the money that is granted. You can choose to top up the employee’s salary, but you do not have to.
How to Treat Employees in Particular Circumstances
The updated Guidance states that, short term illness/self-isolation should not be a consideration in deciding whether to furlough an employee. 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. In these cases, the employee should no longer receive sick pay and would be classified as a furloughed employee.
This could indicate that an employer first needs to establish that they should be claiming from the scheme as their business has been severely affected by Coronavirus and then treat employees on short term illness and self-isolation the same as other employees.
However, in respect of those employees that are shielding for 12 weeks on medical advice, the new Guidance states that ‘Employers are also entitled to furlough employees who are being shielded or off on long-term sick leave. It is up to employers to decide whether to furlough these employees.’ This seems to be less clear. Does an employer first has to show that the business has been severely affected by Coronavirus. So for example, could a shelf-stacker in Tesco who has been advised medically to shield for 12 weeks be able to be furloughed despite the business not being severely affected by Coronavirus?
The changes in the iterations of the Guidance seem to increasingly support the possibility that the shelf-stacker who is shielding on medical advice can be claimed for. Although, again it is not certain, based on the current guidance.
Furloughed employees who become ill must be paid at least Statutory Sick Pay. It is up to employers to decide whether to move these employees onto Statutory Sick Pay or to keep them on furlough, at their furloughed rate.
Employees who are unable to work because they have caring responsibilities resulting from Coronavirus (COVID-19) can be furloughed. For example, employees that need to look after children can be furloughed. However, it is unclear whether the business still needs to meet the initial criteria first? Namely ‘that you cannot maintain your current workforce because your operations have been severely affected by Coronavirus’ before furloughing employees who have caring responsibilities. Again, the Guidance needs to make it clear where for example supermarket workers who are still required to work are eligible to be furloughed because they have child caring responsibilities even though the business itself has not been affected by way of a drop off in work.
If workers are required to complete online training courses whilst they are furloughed, then they must be paid at least the NLW/NMW for the time spent training. It is not immediately clear whether in calculating this the 80% payment is taken into consideration or whether this is on top of that payment.
Employees on maternity leave, contractual adoption pay, paternity pay or shared parental pay are treated and paid by the employer as usual. However if an employer offers enhanced (earnings related) contractual pay for maternity, adoption, paternity or shared parental pay this is included as wage costs that can be claimed through the scheme.
Employees That Have Been Furloughed
Employees that have been furloughed have the same rights as they did previously. That includes Statutory Sick Pay entitlement, maternity rights and other parental rights, rights against unfair dismissal and to redundancy payments and rights to collective consultation. Although note that the guidance states that ‘It is up to employers to decide whether to move these employees (who have already been furloughed) onto Statutory Sick Pay or to keep them on furlough, at their furloughed rate.’
Employers need to also be careful not to trigger the requirements around collective redundancy consultation where it can be interpreted that 20 or more employees are at risk of their contract being terminated. For example where employees are unwilling to agree to be furloughed and the employer advises that redundancy will therefore need to be considered. Any employee who volunteers for redundancy or has their employment terminated as they have under 2 years’ service counts towards this 20 figure. Employers should take further advice on this if appropriate.
It appears that employees will have the right to make redundancies during or after the scheme has concluded. Whether employers can use the scheme to pay the notice payment should redundancies occur within the scheme duration remains to be seen. The guidance expressly states that the grant cannot be used for redundancy payments. It is silent on whether it can be used for notice payments.
Whilst on furlough, employees who are union or non-union representatives may undertake duties and activities for the purpose of individual or collective representation of employees or other workers.
On a practical point, employers may find it more difficult to satisfy an employment tribunal that they have taken all reasonable steps to avoid a redundancy if they have not attempted to furlough the employee, utilising the scheme, prior to implementing the redundancy.
What is the Position of Employees Taking Holiday During Furlough?
Annual Leave during Furlough and the Coronavirus crisis is a subject that is causing issues for businesses as they settle into the current “new normal”. In this guidance we have attempted to answer some of the most common questions, now that there has been some clarification on the guidance.
The Basic Principles of Annual Leave:
• The purpose of annual leave is to give Employees a break from work and for them to engage in leisure and relaxation.
• All annual leave requests are subject to approval by the Employer.
• An Employer can compel an Employee to take annual leave by giving twice as much notice (unless their Agreement with the employee states otherwise) as the amount of time they are required to take – i.e. 2 days’ notice to take 1 days annual leave, 2 weeks’ notice to take 1 weeks annual leave, etc.
• An Employer can cancel annual leave by giving the same amount of notice as days the Employee is taking – i.e. 1 day to cancel 1 day’s annual leave, etc. However, this needs to be exercised with care as it could give rise to a breakdown in trust and confidence which may allow the Employee to resign and claim constructive dismissal. In addition, the employer needs to show that they have good reason to do so.
Annual Leave and Coronavirus/Furlough
• Government Guidance states that employees who are furloughed can be on annual leave at the same time. During this time, however, their Employer will need to top their furlough pay up to their normal pay.
• Normal pay should be whatever they normally earn to include elements such as overtime and commission, averaged over the previous 52 weeks prior to the holiday (but counting the furloughed weeks as at least their normal basic pay).
• Workers who have been unable to take annual leave due to Coronavirus can carry over up to four weeks of their entitlement into the next two holiday years.
• The Government have specifically said that they will keep the situation regarding holidays during this period under review.
Can I make staff who are furloughed or working take annual leave during this crisis?
There has been considerable uncertainty around this but on balance we would advise yes, as long as you give the correct notice. However, we are of the opinion that this will have to be proportionate to the amount of time they have been off and you would need to ensure that they have enough annual leave for the rest of the year. In other words, if an employee is furloughed for 3 months, you should not compel them to take any more than a quarter of their annual leave entitlement.
Our advice would be to ask employees in the first instance if they have a preference in terms of when they take their leave rather than forcing it on them at a time determined by the Employer.
Can I cancel my employee’s pre-booked annual leave for later in the year and insist that they take it now?
The Working Time Regulations allow for this however we consider that there is a risk that doing so would give rise to constructive dismissal claim should the Employee have booked those days for a specific reason. In addition, the new regulations state that employers can only exercise this right where there is “good reason to do so”.
An employee has requested that their pre-booked annual leave is cancelled. Do I have to allow it?
Again, an Employee can cancel pre-booked annual leave by mutual agreement, however given the current climate it may be best to come to some sort of compromise whereby the Employee is allowed to cancel some of the pre-planned leave but has to take the rest.
Do I have to allow my employees to carry over their untaken holidays into the next 2 holiday years?
Where it is not reasonably practicable for a worker to take some, or all, of the holiday to which they are entitled due to the Coronavirus, employers are required to allow employees to roll over up to 20 days from the current holiday year into the next 2 holiday years.
ACAS provides the following examples, as when this should be allowed by an employer:
• An employee is self-isolating or too sick to take holiday before the end of their leave year;
• An employee had to continue working and could not take paid holiday.
It seemingly does not necessarily cover the situation where an employee chooses not to take holiday because they can’t travel abroad.
Is there anything else I need to be aware of re: holidays?
There is some thinking that given the current situation, it is impossible for employees to engage in leisure or relaxation given the “lockdown” restrictions. Therefore, it remains a possibility that the Government or a court will revisit this issue in the future and could determine that Employers should not have compelled staff to take annual leave during this period of time. This is just (educated) guesswork at this time, however and as things stand there is nothing that specifically rules out making staff take annual leave during this period.
Can Directors of a Business Furlough?
Yes, a director can do so provided they were paid via PAYE as at 19 March 2020. Company Directors can complete their statutory duties, even if furloughed. This is the only work allowed. Therefore whilst they can for example file their annual accounts they could not engage in the day to day running of the business, where that work fell outside of the statutory requirements of a director.
The Guide further states ‘where a company (acting through its board of directors) considers that it is in compliance with the statutory duties of one or more of its individual salaried directors, the board can decide that such directors should be furloughed. Where one or more individual directors’ furlough is so decided by the board, this should be formally adopted as a decision of the company, noted in the company records and communicated in writing to the director(s) concerned’.
Revised guidance also states that directors who pay themselves once a year are, subject to certain conditions, eligible for furlough.
3 Welsh Government Guidance Social Distancing In The Workplace 7 April 2020
This section only applies to employees based in Wales. Full guidance is contained here.
Perhaps the most telling part of the guidance is the statement, ‘The Welsh Government wishes to make clear that while the requirement to take all reasonable measures to maintain a distance is an objective test that is intended to be applied consistently, it is neither an absolute rule that has to be applied all of the time in all circumstances, nor is it a test that will apply in the same way in all circumstances.’
The duty to comply with the guidance falls on the person responsible for the work being undertaken in the workplace.
The Welsh Government acknowledges that many employers have already done what they can and there are also working environments where physical distancing is not possible – and in consequence there may be circumstances where few or even no reasonable measures can be taken.
The obligation on the employer is to show that they have taken reasonable steps to ensure social distancing of 2 metres in the workplace. The test of whether a measure is reasonable is an objective one. It will be for a business to justify the reasonable measures that they have adopted and to demonstrate how they have considered that these are proportionate and minimise the risks faced by workers who have to continue to attend work in their workplace.
One consideration of whether an employer has acted reasonably will be cost. The question is whether the cost of the measure is proportionate to the number of people whose risk is reduced by the measure? For example, it would not be proportionate to extend a premises or to require additional fleet vehicles, but splitting shifts could be done at minimal cost.
The guide expressly states that, the nature and capacity of those in a workplace will need to be considered. Where a service or business is responsible for looking after or working with children or vulnerable adults, it would not be reasonable to institute rigid physical distancing. In addition, safeguarding of children and vulnerable adults must not be compromised.
The Guidance outlines the following example of possible reasonable measures to take:
• Reducing the number of people working on the premises at any one time– increasing the space between people by reducing the total number of people in attendance.
• Increasing space between staff – for example on a production line leaving 2 m gaps between people and indicating spacing with markings.
• Consider appropriate provision of rest space – is there a congregation of workers at a certain time? Could additional space be provided or breaks staggered.
• Altering tasks undertaken – making adjustments to the way that work is done, to reduce contact.
• Stagger shifts to minimise people on site and to reduce congestion at the point of shift changes.
• Carrying a passenger in the back seat rather than the front seat of a taxi would be a reasonable measure.
The Guidance gives further examples of situations where it would not be appropriate to implement the 2 metre rule:
• Provision of personal services, including in the home.
• Tasks that require two or more people to undertake them safely, including heavy lifting or carrying dangerous chemicals, although there may be measures that can be adopted elsewhere in the workplace.
• Education and childcare settings – especially where young children cannot understand the concept of physical distancing and where the appropriate support from adult workers may require closer contact.
• Exceptions where close contact is required between workers and the users of services, although again there can be measures in the wider workplace which would minimise the risk of transmission.
• Where workers are required to travel together.
• Where dual working is to ensure safety.
• Working in confined spaces, for example repairing infrastructure for utilities.
However, it goes on to state that ‘it is unlikely that no reasonable measures could be adopted at all in these circumstances.’
Both the police and local authorities have powers to enforce the restrictions on businesses, services and workplaces imposed by the regulations.
4 ‘Lock Down’ Announcement Monday 23 March 2020
The Prime Minister announced on Monday 23 March 2020 that ‘Travelling to and from work [is permitted], but only where it is absolutely necessary and cannot be done from home’.
Clarification was given that all employees may travel to work as long as they fully observe the 2 metre distancing rule and return to work is now actively encouraged in England (11 May 2020).
5 Payment of Statutory Sick Pay
Q – In what circumstances is SSP payable?
Statutory Sick Pay (SSP) will be payable to an employee who is ill (incapacity) after 3 waiting days, subject to the employee meeting criteria such as earning at least £120 per week. SSP is £95.85 per week.
The recent Statutory Instrument and subsequent amendments introduced a new regulation with effect from 13 March 2020 which confirm that self-isolation due to COVID-19 is considered ‘incapacity’. Therefore, an employee who is in quarantine or self-isolation will be regarded as being incapable of working for SSP purposes.
Government guidance first published on 16 March 2020 “strongly advises” employees to work from home if they are vulnerable, which is classed as aged over 70, pregnant, or have a specified underlying health condition, including chronic respiratory diseases, chronic heart, kidney or liver disease, diabetes and those with a weakened immune system (see the Government guidance for a full list). It also strongly advises them to avoid social mixing in the community and limit use of public transport. It is our interpretation that the intention of the Coronavirus Amendment No. 2 Regulations is to extend SSP entitlement to those individuals who are vulnerable and unable to undertake their role from home.
Further temporary changes have now also been brought into legislation which commenced on 13 March 2020:
1. temporarily making statutory sick pay payable from the first day of sickness absence with subsequent guidance from the Government indicating that the day one right is only where the absence is Coronavirus related;
2. small employers (with fewer than 250 employees) will be reimbursed for any SSP paid to employees in respect of the first 14 days of sickness related to COVID-19;
3. by law, medical evidence is not required for the first 7 days of sickness. After 7 days, employers may use their discretion around the need for medical evidence if an employee is staying at home;
4. Government guidance strongly suggest that employers use their discretion around the need for medical evidence for a period of absence where an employee is advised to stay at home either as they are unwell themselves, or live with someone who is, in accordance with the public health advice issued by the government; and
5. if evidence is required to cover self-isolation or household isolation beyond the first 7 days of absence then employees can get an isolation note from NHS 111 online or from the NHS website.
6. Dealing with Employees and the Payment of SSP (See Vulnerable Worker Advice Below Too)
Q – Can I send an employee home from work to self-isolate? If so, what pay is the employee entitled to?
Where you have reasonable and genuine concern, you can seek to send the employee home and request that they stay away from work. An employee’s right to pay where their employer sends them home from work will depend upon the precise circumstances of that decision, and if the employee is showing any symptoms of COVID-19. This is discussed below in various scenarios.
Scenario 1: Employer suspends for reason not falling within government self-isolation advice i.e. they have no symptoms nor do they live with someone who displays symptoms
Where an employee is suspended by their employer on health and safety grounds, because of a possible risk of infection which does not fall within the government’s self-isolation advice for COVID-19, the employee will have the right to continue to receive their full pay.
Scenario 2: Employer suspends for reason falling within government self-isolation advice
Where an employer is considering suspension because an employee falls within the circumstances in which public health advice is to self-isolate then the position in terms of pay may be different. In those circumstances, an employer may direct the employee to return home and seek medical advice. If the employee falls within the category of people who have been advised in government guidance to self-isolate then they will fall within the new deemed incapacity rules for SSP. In those circumstances it is likely that the employer could treat them as being on sick leave and pay them SSP (subject to any contractual sick pay policy). However, see the vulnerable worker advice in respect of, for example pregnant employees).
However, before doing this you need to be clear as to what the grounds of a belief that the employee falls within the public health advice.
Q – Where an employee refuses to attend work due to fears about Coronavirus, what action can I take as their employer and what pay is the employee entitled to?
If the employee can work from home then this may well resolve the issue. If not, the employer would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of the employee’s refusal.
If an employee refuses to attend work for no medical reason and cannot work from home then they will not be entitled to SSP nor wages and could be disciplined. However in these uncertain times, employers will be expected to adopt a sensitive and supportive approach.
If an employee will be deemed to have been automatically unfairly dismissed if he is dismissed because in circumstances of danger which he reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger. There is no qualifying period for this and therefore the usual “two year rule” does not apply. We think there is a chance that this may cover people who decide not to attend work as they have a genuine concern that they are at risk of catching or passing on Coronavirus.
Q – Where an employee self-isolates following either a direction by a medical professional or government guidance, what pay are they entitled to?
It is assumed for the purposes of this analysis that the employee is not exhibiting symptoms and has not been diagnosed with the disease in question, and that they cannot work from home during their self-isolation.
Where an individual self-isolates in response to either direction by a medical professional or government guidance they will be deemed incapable under the new deemed incapacity rules for SSP and will therefore be entitled to SSP (or any contractual sick pay which may apply in this scenario).
Q – What pay is an employee entitled to where they have mild respiratory symptoms but no diagnosis of COVID-19?
An employee in these circumstances may be treated as being on sick leave and be paid SSP (or contractual sick pay if applicable). Current Government guidance is to self-isolate for 7 or 14 days where an employee has a persistent new cough or raised temperature.
Q – Where an employee is ordered to self-isolate or quarantined under the Health Protection (Coronavirus) Regulations 2020, what pay are they entitled to?
It should be noted that the law on compulsory detention or isolation during a pandemic differs between the constituent parts of the United Kingdom. However, from a Welsh/English stance it is likely that an employee who is forced to abstain from work because of compulsory detention or other restrictions made under an enactment such as the Coronavirus Regulations would be entitled to SSP.
Q – Where an employee refuses to attend work because they have a disability which they believe puts them at high risk of serious illness if they catch COVID-19, can an employer dismiss them, or if not, what pay are they entitled to?
People who suffer from certain health conditions are at higher risk of serious illness or death if they contract COVID-19. A requirement imposed by an employer to continue travelling to and attending work, or to not pay or to dismiss them due to their absence in this scenario, could amount to discrimination. In addition, new Government advice has been issued with regards to vulnerable workers and they are likely to qualify for SSP if they cannot homework. See the Vulnerable Worker Section below.
If you have a situation such as this, please contact your employment law advisor for specific advice.
Q – An employee has been off with COVID-19 symptoms, it is now the 8th day but I have not received any GP Sick Note?
Under normal rules, an employee can self-certify for the first 7 days of sickness. After 7 days, it is for the employer to determine what evidence they require, from the employee, this is typically a GP Certificate (aka fit note (Med 3 form) issued by a GP or other doctor).
Public Health Wales guidance states that employers use their discretion around the need for medical evidence for a period of absence where an employee is advised to self-isolate due to suspected COVID-19, in accordance with the public health advice being issued by the UK Government.
Employees can now be directed to NHS 111 online to obtain a fit note evidencing their sickness or advice to self-isolate.
Q – An employee has called in to say that their relative is ill with a Coronavirus symptom, and they need to care for them. Is the employee allowed time off and what are they paid?
Here the employee would be entitled to take time off. This is considered Dependent’s Leave. Dependent’s Leave is unpaid leave, so no normal pay (or SSP) would be payable unless specified in their contract.
However, if the relative lives with them, then they would need to self-isolate themselves and would qualify for SSP.
7. Advice Re: Vulnerable Employees
Q – Who are consider as ‘vulnerable’?
ACAS has identified vulnerable persons as being, but not limited to, those who:
• have a long-term health condition, for example asthma, diabetes or heart disease, or a weakened immune system as the result of medicines such as steroid tablets or chemotherapy;
• are pregnant;
• are aged 70 or over; or
• care for someone with a health condition that might put them at a greater risk.
Q – Have any details been given on which long-term health condition?
Public Health England have identified those individuals who have:
• chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis;
• chronic heart disease, such as heart failure;
• chronic kidney disease;
• chronic liver disease, such as hepatitis;
• chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), a learning disability or cerebral palsy;
• problems with your spleen – for example, sickle cell disease or if you have had your spleen removed;
• a weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets or chemotherapy; or
• being seriously overweight (a body mass index (BMI) of 40 or above)
• anyone instructed to get a flu jab as an adult each year on medical grounds.
Relevant employees have been contacted and advised to completely self-isolate for 12 weeks.
Q – I have a pregnant employee, what do I need to do?
Based on current Medical evidence, it is currently unclear whether Coronavirus poses a greater risk for pregnant individuals (or their unborn child) as compared to the general population. However, due to the lack of evidence, the view has been taken to deal with the matter as precautionary and assume that pregnant employees may be particularly vulnerable. In addition the advice around this has changed over the course of the last few weeks.
Employers have additional duties to protect the health and safety of new and expectant mothers in the workplace. In summary, the law requires employers:
• To assess the workplace risks posed to new or expectant mothers or their babies.
• To alter the employee’s working conditions or hours of work to avoid any significant risk (regulation 16(2), Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) (MHSW Regulations)).
• Where it is not reasonable to alter working conditions or hours, or would not avoid the risk, to offer suitable alternative work on terms that are not “substantially less favourable” (regulation 16(3), MHSW Regulations and section 67, Employment Rights Act 1996 (ERA 1996)).
• Where suitable alternative work is not available, or the employee reasonably refuses it, to suspend the employee on full pay (regulation 16(3), MHSW Regulations and section 67, ERA 1996).
As pregnant women have been “strongly advised” to socially isolate, avoid travelling on public transport and work from home where possible where the nature of the employee’s role means that they cannot work from home and there is no suitable alternative work available that they could do from home, the employer should consider suspending the employee on full pay in accordance with regulation 16(3) of the MHSW Regulations.
See below for vulnerable worker SSP entitlements.
Finally, and as a preventative measure, it is advisable to ensure that Public Health Wales good practice guidance is followed by other employees, by providing the relevant information and products (hand wash/ sanitizer) about good hygiene and how to avoid spreading infection (such as social distancing). Public information posters can be obtained here.
Q – I have an employee which is over 70 years old and/or has a long-term health condition, what do I need to do?
Government guidance states that Coronavirus can cause more severe symptoms in older people and/or those with long-term conditions like diabetes, cancer and chronic lung disease. Due to the additional risk, employers have a duty to protect the health and safety of their employees, which includes taking additional care with employees who are known to be vulnerable.
It is advisable that you meet with any employees who may fall into the ‘vulnerable’ category to discuss the potential risk (an assessment could be conducted) and discuss how any potential risk to Coronavirus can be managed. Subject to their particular health condition, guidance concerning Coronavirus may be obtained from specialist websites such as Asthma UK or Kidney Care UK. Further, in some circumstances it may be appropriate to obtain medical advice as well.
It is important to discuss matters with the individual, rather than make any assumptions as this potentially could lead to a claim of age or disability discrimination.
At present, there is no specific advice for employers as to how employees classed as vulnerable should be treated. However, our advice is that you should seek to accommodate the wishes of vulnerable people who are concerned about attending work due to the risk of Coronavirus. These wishes may include introducing arrangements such as homeworking.
Also, if you do have vulnerable employees, it is advisable to ensure that Public Health Wales good practice guidance is followed by other employees, by providing the information and products (Hand wash/ Sanitizer) about good hygiene and how to avoid spreading infection (such as social distancing). Public information posters can be obtained here.
Relevant vulnerable employees have been contacted via public health, to advise them to completely self-isolate for 12 weeks.
See below for vulnerable worker SSP entitlements.
Q – We have an employee who is refusing to attend work, because they live with a vulnerable person and fear getting infected? What should we do and do we have to pay them?
Current government guidance is that employees should work from home where possible. As their concern is linked to a vulnerable person, it may be reasonable for an employer to allow this while refusing similar requests from other employees who do not have a direct link with a vulnerable person.
However if homeworking is not possible, and the employee refuses to come to work due to a genuine concern that they have, as an employer, you are expected to try and resolve these concerns, An option could be explored such as altering working hours so it is not necessary to travel on public transport during rush hour.
If the employee’s concern cannot be remedied, and they do not wish to attend work, then there is the option for the employee take time off as holiday (where they would be paid) or for a period of unpaid leave to be taken instead.
Q – If a Vulnerable Person cannot work from home and chooses to follow the Government Advice and self-isolate (even if they have no symptoms) are they entitled to SSP?
Government guidance first published on 16 March 2020 “strongly advises” employees to work from home if they are vulnerable, which is classed as aged over 70, pregnant, or have a specified underlying health condition, including chronic respiratory diseases, chronic heart, kidney or liver disease, diabetes and those with a weakened immune system (see the Government guidance for a full list). It also strongly advises them to avoid social mixing in the community and limit use of public transport. It is our interpretation that the intention of the Coronavirus Amendment No. 2 Regulations is to extend SSP entitlement to those individuals who are vulnerable and unable to undertake their role from home. This was effective from 16 April 2020.
Relevant vulnerable individuals have been contacted by public health and advised to completely self-isolate for 12 weeks.
Guidance released on Thursday 26 March 2020 has stated that those vulnerable individuals who are shielding in line with public health guidance can be placed on furlough leave (please see above).
Q – What is the exact guidance from the Government regarding Homeworking?
On Monday 16 March 2020, the Government recommended that people should work from home where they can. This is not a decree to force employees to work from home, just a recommendation that if possible, then employees should work from home.
The PM announced on Sunday 10 May 2020 that those who cannot work from home, such as those in construction or manufacturing, should be “actively encouraged” to return to work from Monday 11 May. However, this only applies to England. The message for Welsh and Scottish workers has not changed.
However, all employees may travel to work as long as they fully observe the 2 metre distancing rule. However, Companies based in Wales should take into account the new law that comes into force this week (week starting 6 April) making the 2 metre distancing rule a legal requirement.
ACAS have produced a guide on working from home which can be found here.
We have also revised our working from home policy to take into account Coronavirus and this is available on request.
Q – Are we entitled to require an employee to work from home?
If there is already established advice to work from home where appropriate or where instructed to do so (or in the case of a business continuity issue such as a pandemic), then there is unlikely to be an issue in applying that obligation in an effort to contain the spread of COVID-19.
If not, imposing homeworking would arguably constitute a variation of the contract requiring employee consent. However, where an employee is faced with either being on SSP or nil pay as an alternative, they may well be willing to consent to working from home as a way of preserving pay.
Where homeworking is being newly introduced, or expanded, the employer should ensure that the health and safety implications have been considered and that the necessary infrastructure is in place. Given current circumstances, this may prove difficult. From a practical perspective, employers should ensure that employees are asked to confirm that they have a safe working environment at home.
Q – We have employees who cannot work from home. What can we do?
As stated above, the recommendation is that employees should work from home if possible. Certain job roles cannot be relocated to homeworking, such as production line workers.
Consideration can be given to alternative work, if available, if this then allows the employee to work from home. However, if not possible, then the employee can remain at work.
If the employee does not wish to remain at work, alternative arrangements can be considered such as using holiday, taking unpaid leave or furloughing the employee under the Coronavirus Job Retention Scheme.
Q – Can we refuse to allow an employee to work from home if they will also be looking after children who have been sent home from school or nursery?
In normal circumstances, it would not be appropriate for an employee to work from home while also providing childcare. If all schools and nurseries close, the majority of parents in the workplace will face this issue and putting a blanket ban on working from home while also looking after children may preclude a large proportion of the workforce from performing any duties. Therefore, as the COVID-19 outbreak escalates, employers may need to take a pragmatic approach.
Employees with younger children who require constant attention may not be able to work at all while responsible for looking after those children. However, they may be able to split the childcare with the other parent, so that both parents are able to, at least, continue working part-time.
Employees in these circumstances may assert their right to time off to care for a dependant, referred to as Dependent’s Leave. Time off in these circumstances is unpaid, unless there is a contractual right to pay. Given that school closures could last a relatively long time, it is likely that many employees who consider that they can undertake some work while providing childcare would prefer to do so (rather than assert their statutory right to time off) if the employer is willing to allow them to work flexibly.
See below for further advice in respect of school closures.
9. Economic Impact of COVID-19 and Reduction in Business
Q – Due to the economic impact of COVID-19 on my business, I need to make cost savings however I do not know what my options are?
There are predominantly four options whereby employees can make cost savings with regard to employees. The four options are discussed below.
The options are:
With regard to employees who have less than two years’ service you can look to terminate their employment by serving them with one week’s notice or more if their contract dictates.
The only potential risk here is that if any employees try and argue that their dismissal is discriminatory as it is associated with a protected characteristic that they have (race, sex, colour, disability, sexual orientation, religion, pregnancy, etc) or linked to assertion of a statutory right or whistleblowing.
The second option is that if there is a signed contract in place or a contractual Employee Handbook, and that contract contains a lay off and short time working clause with reference to statutory guarantee payments, then you could look to implement this. Please note that not all contracts have this clause, and it is uncommon to find them in salaried employees’ contracts. The specific clause would typically read:
The Company reserves the right to place you on short-time working or to lay you off where it has a reduction or loss of work. In such circumstances statutory payments only will be made to you.
Here you can write to the employees to state that you are exercising your contractual right to place them on either a lay off (no work at all) or short time working (a reduction in their contractual hours). For the first five non-working days, the employee will be entitled to a statutory payment of £30. Once the five days are exhausted, they are not entitled to any further payment until a three month period has passed. The benefit here is that employees remain employed, rather than being dismissed.
Please be aware that if an employee is placed on short time working or laid off (and that hours are less than 50% of what they should be) then after a period of four continuous weeks or six weeks within any 13 weeks they can apply to make themselves redundant, where they would receive a redundancy payment from you. This can be rejected, but you would need to offer them there usual hours back. There are complicated notice and timescale rules around this. You are therefore strongly advised to take advice.
The Government has introduced the Coronavirus Job Retention Scheme. Further advice on this is contained earlier in this document. Under this scheme employers can furlough their employees and receive up to 80% of their wages (to a cap of £2,500 pcm).
The fourth option is the more severe option. Here you would look to undertake compulsory redundancies.
To begin with, you would need to identify which areas you wish to reduce the workforce, and also by how many individuals. You’re then obliged to undertake a process whereby you consult with the employees over the proposal to reduce the number of employees/or delete their job role in its entirety.
If this option is to be explored, we would recommend that you speak to your employment law advisor for specific advice.
10. School Closures
The Government has now forced all Schools to close. The Welsh Government has stated that schools will not reopen on 1 June 2020 as had previously been speculated. In England some year groups may return shorty after this time.
For those who are struggling, employees looking to take time away from the business on an unpaid basis or wanting to reduce their hours could save vital money. However, for those businesses who are busier than ever following the outbreak, employees may be requesting time off at the most awkward time possible.
Given the guidance on vulnerable groups of people, it is unlikely to be reasonable for many people to utilise grandparents for childcare and therefore you may get more requests for time off for childcare reasons than previously.
Q – Do staff have the right to take time off to deal with childcare issues?
The simple answer is yes.
There are two options open to employees who cannot attend work due to childcare issues. One which deals with immediate emergency issues (as the school closures could be classed as in the next few days) and another which is designed for non-emergencies over a longer period of time (which the current situation may develop into).
Time Off for Dependants
The most commonly used form of time off for parents with childcare issues is Time off for Dependants. This is where staff are entitled to a reasonable amount of unpaid leave to deal with emergencies only. There are no time limits for how long can be taken but it is generally accepted that it is for them to deal with the emergency only and is not usually used for an extended period of time.
Typically this is used where employees have to sort out arrangements for childcare should their child be ill or the school close down for a couple of days due to bad weather, etc.
In relation to Coronavirus, it is unlikely that this will cover an extended period of time of school closures but given a likely economic downturn, you may be happy to grant an extended period of leave to any employees who need it.
In addition, given the unprecedented position that the country finds itself in, there is the possibility that the courts will widen the definition of emergency. For certain, employers will be expected to act reasonably, given the circumstances.
Parental leave is also unpaid but is designed for a longer period of time. Employees are entitled to 18 weeks’ leave for each child they have, including adopted children. They can take these 18 weeks at any stage (subject to some limits) between their child being born and reaching the age of 18.
Employees can take up to 4 weeks per year, per child, unless their employer agrees that they can take more.
Parental leave must be taken in whole weeks unless you agree that they can take individual days or unless the child is disabled.
Employees usually have to give 21 days notice for this, however this can be waived by the employer.
Q – I need my staff to continue to work – are there any other options?
Reduce and/or Vary Hours and/or Days
You could look to agree to vary their hours of work so that they can fit in around the job of a partner or someone else who can provide child care to their children. This could be shortening their working days so they finish earlier or start later, working less days per week, condensing their hours or perhaps a change of shift to evenings/nights.
Working from Home
In line with government guidance, we recommend that all staff who are able to work from home are given the opportunity to do so.
Employers may take the view that reduced productivity from staff working at home compared with no productivity is the lesser of two evils.
Take Annual Leave
Those employees who have annual leave to take can do so. This would be subject to your usual rules, however. You can also compel employees to take annual leave by giving twice the notice of the intended holiday length (subject to their contract or agreement with them saying differently).
If you would like to discuss further, please contact us by emailing [email protected] or by phoning 01392 247436.
Last updated 11th May 2020