Covid-19

Coronavirus: Employer’s resource centre — live guidance available here

Coronavirus: Employer's resource centre

LAW are here to help UK employers navigate the coronavirus pandemic. 
  • For general information about coronavirus, we recommend NHS guidance here.
  • The purpose of this resource centre is to help UK employers navigate employee relations during the pandemic.  
  • LAW are making this guidance available for free to all UK employers.  
  • We recommend bookmarking this page, and following LAW on Twitter and LinkedIn to keep up to speed.

 

How can LAW help?
  • Coronavirus HR checklist - available on this page, use this to check the workplace basics are in place.
  • Coronavirus FAQs from our employment law, HR and health & safety teams - available below.  This guidance is updated regularly.
  • For employers who are LAW clients:
    • 24/7 employment law and HR advice - very suddenly, employers have found themselves facing redundancies and restructures.  It is critical that employers make the right decisions for the short and long term. Our employment solicitors and HR consultants are on hand 24/7 to provide bespoke guidance on your specific cirumstances, allowing you to take quick, confident and decisive action.  Our team are available by phone; email; Live Chat, and Skype or Microsoft Teams.  In addition, LAW health & safety-only clients are welcome to seek employment law/HR advice related to coronavirus.
    • 24/7 health & safety advice - workplace health & safety is a top priority for employers during this crisis.  Our qualified team of safety managers, one of which is an experienced emergency control planner, are available 24/7 to provide specific guidance.  In addition, LAW employment law/HR-only clients are welcome to seek health & safety advice related to coronavirus.
    • Reputation, PR & communications support - all employers are suddenly faced with the urgent challenge of communicating with staff, customers and other stakeholders.  LAW clients are entitled to a consultation with our reputation partners who can provide the support required for clear, controlled communication.
    • Pricing - we reassure clients that while your contact with us is likely to increase over the next few months, our fixed-fees will stay the same.
    • Business as usual - LAW and Marlowe Group plc are fully operational, and we are following Government guidance in order to protect the health and wellbeing of our colleagues.
  • For employers who are not LAW clients:
    • Two special support packages are now available, both of which enable employers to make the right decisions for the short and long term.  Contact us to discuss the best fit for your business.

 

Coronavirus HR checklist
  • Make sure everyone's contact numbers and emergency contact details are up to date.
  • Ensure that adequate health and safety precautions have been taken in the workplace e.g. provision of hand sanitizers and anti-bacterial cleaning products.
  • Make sure all staff are aware of your response as an employer.
  • Continue to communicate as the situation changes.
  • Make sure managers know how to spot symptoms of coronavirus and are clear on any relevant processes, for example sickness reporting and sick pay, and procedures in case someone in the workplace develops the virus.
  • Ensure that all potential incidents are being reported to HR so they can understand the overall risk to the business.
  • Should an employee turn up sick at work with symptoms of coronavirus e.g. a temperature or persistent cough, advise the individual to return home to self-isolate in line with Government instructions and to follow the advice available on the NHS website. They should not be advised to attend their GP, pharmacy or hospital. If their symptoms worsen, they should use online NHS tools to seek advice or call NHS 111. Only in case of a medical emergency should they call 999.

 

Coronavirus FAQs from our employment law, HR and health & safety teams

 

SICKNESS AND SELF-ISOLATION --- last updated 06/04/2020; 11am

If an employee contracts coronavirus, do they still get full pay or sick pay?

If an employee contracts coronavirus, this should be treated in the same way as any other sickness absence in terms of payment. If you normally only pay Statutory Sick Pay (SSP) during sickness absence, then SSP will be paid from day one of illness.

There will also be no need for employees to go to the doctors for a fit note. Therefore, many people with the virus will not be tested and therefore may not receive official confirmation of diagnosis. However, if they are isolating in line with Government advice an isolation note can be obtained through NHS 111, and the employee should be advised to consult the NHS website for further details. Due to the increasing demand on NHS 111 service, individuals with symptoms are encouraged not to call and instead to rely on the NHS website for guidance. 

As announced on 11th March 2020, businesses with fewer than 250 employees will have the cost of SSP for any employee off work for coronavirus for up to 14 days refunded by the government in full.

What happens if an employee has been told to self-isolate?

An employee will need to self-quarantine on the advice of NHS 111 or a doctor, or because they have symptoms, or if they have been in close proximity with an infected person. The Government have also now advised that if you live in a household with others and have a high temperature or a new contagious cough, then all individuals in that household should stay isolated together for 14 days. 

What pay are those who are sick or self-isolating entitled to?

The Government’s guidance is that those who are sick or have been advised to self-isolate because they live with someone who has symptoms are entitled to Statutory Sick Pay (SSP) if they are absent from work. If an employee is not in the shielding category, they cannot be placed on furlough leave during sickness or self-isolation. As a result, their employers will not be eligible to reclaim the cost of pay through the Job Retention Scheme. However, when the period of sickness or self isolation comes to an end they can be furloughed if the employer does not have work for them to do, and their employers can access Jobs Retention Scheme funds. 

SSP will be available from day one of absence. This includes individuals who may be a carrier of COVID-19 but may not have symptoms. It is good practice for employers to treat it as sick leave and follow their usual sick pay policy (or agree for the time to be taken as holiday). You could also advise employees to work from home if possible and continue to pay as normal.

Whilst there is no obligation to pay contractual sick pay to those who are self-isolating, the CIPD also recommends that employers that offer contractual sick pay should provide this if a member of staff is asked to self-isolate by a medical professional even if they have no symptoms. 

Both employers and employees have general implied duties to look after all employees’ health and safety and this duty must include complying with self-isolation advice, otherwise workplace colleagues could be exposed to infection.

What is “shielding” and how does it differ from self-isolation?

The Government previously advised those who have been deemed to be at high risk of developing complications should they contract the virus to shield from the virus for a period of up to 12 weeks. The language used was akin to self-isolation and it seemed they would be entitled to SSP. Those categories were:

  • Individuals aged over 70;
  • Women who are pregnant; and
  • Individuals aged under 70 with an underlying health condition who are instructed to get a flu jab each year on medical grounds. This would include those with chronic respiratory diseases, chronic heart, kidney or liver disease, diabetes and those with a weakened immune system.

However, the Government now appears to have moved away from this guidance and suggests that only those who are at very high risk of developing complications if they contract coronavirus should be “shielding”. Its guidance now appears to make a clear distinction between self-isolation (on the grounds of sickness or living with an individual who is sick) and shielding. Individuals in the shielding group include:

  1. Solid organ transplant recipients;
  2. People with specific cancers;
  3. People with severe respiratory conditions including all cystic fibrosis, severe asthma and severe COPD;
  4. People with rare diseases and inborn errors of metabolism that significantly increase the risk of infections (such as SCID, homozygous sickle cell);
  5. People on immunosuppression therapies sufficient to significantly increase risk of infection; and
  6. Women who are pregnant with significant heart disease, congenital or acquired.

More details about those who fall into the “shielding” category can be found on the Government’s website. These individuals should have been contacted by the NHS by Sunday 29th March. 

Amendments to the SSP Regulations made on 2nd April 2020 confirm that those who are shielding are not considered to be in the same group as those self-isolating because they have symptoms or live with someone who does. According to the amended Regulations, shielding employees are not entitled to SSP whereas those self-isolating are.

A shielding employee who would otherwise have been furloughed because of a reduction in work can be still be furloughed. This would allow the employer to access the Job Retention Scheme to re-claim some of the cost of their pay. It has now been clarified that furlough leave is not an option where the employer still has work for the employee to do. 

This leaves those in the shielding category whose employers still have work available in an extremely difficult position since the SSP regulations now confirm that they are not entitled to sick pay. Employers in this situation should seek advice as to their options.

What if an employee in the shielding category wants to come to work?

Shielding is currently a recommendation only, meaning an employee may still attend work should they choose to. If an employer decides that they do not want an employee to come to work on medical grounds, medical suspension on full pay could be considered. Most suspensions occur when employees are being investigated for misconduct (often as part of a disciplinary process allowing an investigation to take place) and more unusually for medical health or safety reasons.

The specific statutory meaning of suspension on medical grounds refers to legislation giving employers the right to suspend employees on full pay if their health and safety are in danger, for example from certain substances which are hazardous to health including radioactive substances, and certain chemicals and lead carrying poisoning risks. Employees are suspended for their own protection. This specific type of suspension does not cover the coronavirus (COVID-19) situation, although the legislation could be amended so that it does.

The second meaning of suspension on medical grounds is a generic reference to an employer’s decision to suspend employees for medically related reasons to protect other staff. This type of suspension can potentially apply in the coronavirus (COVID-19) situation.  If an employer chooses to suspend employees for a brief period, then as long as this is on full pay, the suspension is likely to be permissible (although strictly speaking it is not a statutory ‘medical suspension’).

The employer’s ability to suspend an employee in the coronavirus (COVID-19) context is primarily contractual (for example staff refusing to accept medical advice to self-isolate). Pre-existing standard clauses in contracts of employment or disciplinary policies are unlikely to expressly cover the coronavirus (COVID-19) situation.  However, there is an implied contractual duty to ensure health and safety of employees. Instructing an employee not to attend work on full pay is likely to be deemed reasonable if there are rational grounds such as trying to prevent the spread of the virus to non-infected employees to honour legal obligations to them.

Assumptions that employees should be suspended because they may have the virus solely on the basis of ethnic or racial background would be discriminatory and a breach by the employer of the implied term of trust and confidence.

What happens if an employee is worried (e.g. due to caring responsibilities) and wants to self-isolate?

Where an employee has caring responsibilities (particularly in respect of a person who is shielding) or is looking after children, it may be open to the employer to consider furlough leave. Please see our Q&A on the Job Retention Scheme for more details.

Otherwise, if the employee’s concerns are not related to caring responsibilities, individuals and their employer have a contract. If an employee is choosing to remove their services and has no confirmed sickness or self-isolation requirement, then they are effectively withdrawing their services from their employer. The employer would be under no obligation to pay in this case. In employment contracts there are implied terms that employees should follow their employer’s reasonable instructions. If employees refuse to perform these tasks, then they are in breach of contract. It will depend on the precise circumstances but there may be grounds for following normal absence management processes. Whilst there is clearly no legal precedent yet, it is highly unlikely that dismissal for self-isolation contrary to Government guidance would be fair. 

If working from home is not an option, the employee may be able to arrange with their employer to take the time off as holiday or unpaid leave, but their employer does not have to agree to this. That said, this is an exceptional event which requires both employers and employees to exercise caution and to take reasonable steps to prevent the risk and spread of the virus. Alongside the employers' statutory duty of care for people’s health and safety and to provide a safe place to work, there's also a strong moral responsibility to ensure that employees feel safe and secure in their employment and so you should take people’s concerns seriously and take reasonable steps to reduce risk. 

Do employees need a medical certificate?

Medical evidence is not required for the first seven days of sickness (according to the law). Those who are advised to self-isolate in accordance with Government guidance can obtain an isolation note from NHS 111 and should visit the NHS website for more advice on getting an isolation note. 

Are there different rules for pregnant employees?

Pregnant employees with significant heart disease, congenital or acquired, fall into the shielding category. More details about those who fall into the “shielding” category can be found on the Government’s website. Guidance about shielding employees can be found above. 

Contrary to earlier Government guidance, pregnant employees who are not in the shielding category are not currently advised to self-isolate, but rather to follow social distancing measures. Employers will need to consider what, if anything, can be done to mitigate against the risks posed to pregnant employees e.g. can the employee work from home. 

However, under the Management of Health and Safety at Work Regulations 1999 where the workplace poses a particular risk to a pregnant woman and it is not reasonable to alter working hours or offer alternative work to avoid that risk, they should be medically suspended on full pay. So, if pregnant employees are sent home but they are not sick, then they should receive full pay.

It appears to be the case that pregnant women who fall into the shielding category and who would otherwise have been furloughed because of a reduction in work, can be still be furloughed. This would allow the employer to access the Jobs Retention Scheme to re-claim some of the cost of their pay. 

What happens if an employer that is still permitted to keep their premises open decides to send employees home as a precaution?

Provided this is feasible from an operational point of view, it is certainly an option in order to maintain productivity and pay. Where possible employees could be asked to work remotely from their home. In this case you should consider the health and safety aspects including whether the employee has an appropriate area at home to do work and any insurance implications.

If an employer decides to send a non-symptomatic employee home as a precautionary measure because they are worried that the employee may have been exposed to the virus, this will be on full pay. In this case employees are following the reasonable instruction of the employer and should get their normal pay.

Some employment contracts contain a right to suspend employees briefly without pay. However, this right usually only applies in limited circumstances and a suspected illness is unlikely to be covered. Unless there is a clear contractual right to suspend employees without pay or benefits, then employers who insist on this could potentially face claims for breach of contract, unlawful deduction of wages and constructive unfair dismissal.

This will not be medical suspension under the statutory scheme (which would attract medical suspension pay) as this has a narrow definition which does not cover this type of situation.

Can we prevent employees who have been travelling from coming into work?

The Foreign & Commonwealth Office (FCO) have now advised British people against all non-essential travel worldwide until at least 15th April.

There is no longer a requirement for those who have returned from an affected area to self-isolate for a period of 14 days. If employees have returned from travelling abroad then they should follow the same self-isolation guidance as anyone else. 

What happens to employees who are on a zero-hour contract?

Some casual workers and workers on zero-hours contracts who are affected by the coronavirus are likely to receive at least statutory sick pay. Some other zero-hours workers currently will not get paid SSP if they are told to self-isolate unless the employer pays them voluntarily.

Statutory sick pay (SSP) is only paid to those earning a certain average amount. Zero-hours contract workers will therefore only get SSP if they earn more than an average of £118 a week before tax over an eight-week period.

Those on zero-hours contracts who do not meet the minimum earning requirements will still not be eligible for SSP at all unless further legislation is introduced.

Zero hours workers and casual workers are covered by the Jobs Retention Scheme (see further details in our Jobs Retention Scheme Q&A) 

What about those who are self-employed or freelancers?

The self-employed and freelancers are unlikely to be entitled to statutory sick pay. Some may have income protection insurance policies for accident, illness and unemployment which may cover wages lost due to coronavirus infection.

The Chancellor has made a number of arrangements to assist the self-employed, for example by deferring self-assessment in 2020 and by suspending the minimum income floor for Universal Credit so the self-employed may claim at a rate equivalent to the SSP received by employees. On 26th March he also announced a package of support providing similar protection to that offered to employees under the Jobs Retention Scheme. Details can be found on the Government’s website

What if someone becomes unwell while they are at work?

The Government advice for someone who becomes unwell while at work with symptoms of coronavirus  is to ask them to return home and self isolate for 7 days. They should be advised to consult the NHS website for advice, and call NHS 111 if they need to speak to someone. They should not attend their GP, pharmacy or hospital. If their symptoms worsen, they should call NHS 111 or, in cases of medical emergency, they should call 999.

CORONAVIRUS JOB RETENTION SCHEME --- last updated 09/04/20; 9am

What is the Coronavirus Job Retention Scheme?

The Chancellor announced on Friday 20th March 2020 that a new “Coronavirus Job Retention Scheme” would be created and rolled out in the coming weeks to protect the pay of staff members whose employers do not have work for them to do as a result of the coronavirus outbreak. On 26th March 2020 the Government released further details about how the Scheme will work in practice. This guidance was further updated on 4th April 2020. Details of the Scheme can be found on the Government’s website.

The Scheme is not intended to supplant the contractual arrangements between employers and their staff nor to transfer liability for payment of staff to HMRC. It is intended to enable employers to reclaim some of the costs of continuing to employ staff where the employer's operations have been severely impacted by the coronavirus outbreak. The Government’s commitment to provide financial backing to employers through the provision of the Scheme is intended to instil confidence in employers to retain their employees in the short term. It should be borne in mind that liability in respect of pay and contractual arrangements will still rest with the employer, regardless of whether the employer is able to reclaim money from HMRC in respect of the staff member. 

What does “furloughed” mean?

“Furlough leave” is not a term which is currently has a legal meaning within employment law nor does it have any meaningful colloquial use in UK society. “Lay off” has a statutory definition (see Lay Off Q&As for more detail), although it is sometimes colloquially used to describe redundancy dismissals. “Redundancy” is a potentially fair reason for dismissal which can be relied upon where there is reduced need for workers of a particular kind at the employer’s place of work. 

The newly coined term “furlough leave” (which the Government has described as akin to a “leave of absence”) will cover staff who remain under contract and on payroll but are not working because the employer does not have work for them to do as a result of the virus. This will cover staff who would otherwise have been placed on statutory lay off or would have faced potential redundancy dismissal. 

Which employers can claim?

The Scheme will be open to any UK business with employees who have a UK bank account and who have a PAYE payroll which was operational on or before 28th February 2020. Employees of companies in administration will still be covered by the Scheme, and grants can be applied for by the administrator. However, the Government would only expect an administrator to access the scheme if there is a reasonable likelihood of rehiring workers. For instance, this could be as a result of an administration and pursuit of a sale of the business.

The Scheme will cover businesses, charities, recruitment agencies (where workers are paid through PAYE) and public authorities. Public sector employers are unlikely to qualify for the Scheme since grant funding will continue and should be used to pay for staffing costs. The same applies to employers who receive public funding for staff costs (where that funding continues). However, the Scheme may apply in respect of a small number of public sector organisations who are not primarily funded by the Government and whose staff cannot be deployed to assist with the coronavirus response.

Which staff members are covered by the Scheme?

The terms “worker” and “employee” have been used interchangeably by the Chancellor and in official guidance but have different meanings within employment law. The Scheme will cover any person paid through PAYE, which would cover both workers and employees, including agency workers (including those employed by umbrella companies) engaged through PAYE. It covers both full- and part-timers, those on flexible or zero-hours contracts, those on fixed term contracts (provided they last for the period of furlough, including if they are extended for this purpose) and apprentices. 

The Government has now confirmed that employees of individual employers (such as nannies) can be furloughed, as can company office holders, company directors, salaried members of limited liability partnerships, provided that the individual is paid via PAYE. Further detail in respect of company and partnership procedures can be found in the Government’s guidance. There is no bar on nationality, so foreign nationals may be furloughed. In this guidance we refer collectively to all these types of employee or worker as “staff” or “staff members”. Staff members must have been on the employer’s payroll on 28th February 2020. Anyone hired after this date will not be covered, although there is an exception for those whose employment terminated after 28th February and who are subsequently rehired as a result of the Scheme being announced. 

Previously the Government indicated that only those dismissed by reason of redundancy after 28th February would be covered. However, the Government has since confirmed that anyone who stopped working after 28th February 2020 can be re-employed by their old employer and then furloughed in order to access protection through the Scheme.

The Scheme will not cover the self-employed. The Chancellor has made a number of arrangements to assist the self-employed, for example by deferring self-assessment in 2020 and by suspending the minimum income floor for Universal Credit so the self-employed may claim at a rate equivalent to the SSP received by employees. On 26th March he also announced a package of support providing similar protection to that offered to employees under the Jobs Retention Scheme. Details can be found on the Government’s website

What if I have already dismissed staff or put them on unpaid leave?

The Scheme is designed to allow employers to continue to employ staff in circumstances where their operations have been severely impacted by the coronavirus outbreak. It therefore will not cover staff who are dismissed as redundant. However, staff members whose employment terminated after 28th February 2020 and were (or will be) subsequently re-hired in order to access the scheme will be covered.

Previously the Government indicated that only those dismissed by reason of redundancy after 28th February would be covered. However, on 2nd April the Treasury and HMRC released an official statement confirming that anyone who stopped working after 28th February 2020 can be re-employed by their old employer in order to access protection through the Scheme.

Staff members who have already been placed on unpaid leave as a result of coronavirus can be furloughed. However, this will only apply to staff members put on unpaid leave after 28th February 2020. Those who were put on unpaid leave before this date will not be covered by the Scheme.

Can I furlough a staff member who is off sick, self-isolating or “shielding”?

Staff who are sick or self isolating in line with Government guidance cannot be switched to furlough leave during their sickness/isolation absence. They are entitled to a minimum of Statutory Sick Pay from day one of their absence. See further detail in our Q&A on sickness and self-isolation. However, once their period of sickness or self-isolation comes to an end, they may be placed on furlough leave (provided they are eligible for furlough as a result of the employer having no work for them to do as a result of the virus).

Staff members who are “shielding” as a result of being in a particularly high risk group as well as those who need to stay at home with someone who is shielding can be furloughed. However, this can only be done if they are unable to work from home and the employer would otherwise have to make them redundant. 

People falling into this extremely vulnerable group include:

  1. Solid organ transplant recipients;
  2. People with specific cancers;
  3. People with severe respiratory conditions including all cystic fibrosis, severe asthma and severe COPD;
  4. People with rare diseases and inborn errors of metabolism that significantly increase the risk of infections (such as SCID, homozygous sickle cell);
  5. People on immunosuppression therapies sufficient to significantly increase risk of infection; and
  6. Women who are pregnant with significant heart disease, congenital or acquired.

More details about those who fall into the “shielding” category can be found on the Government’s website.

What if a staff member falls sick or falls into a Government-advised self-isolation category during furlough leave?

The Government’s guidance is not explicit about what should happen in this situation and simply says that an employee who is in receipt of SSP cannot be furloughed. Since furlough leave must last for a minimum of three weeks, this would suggest that a sick or self-isolating staff member could remain on furlough leave and pay. This would be in contrast with staff who are sick or self-isolating prior to the commencement of furlough leave who should remain on sickness or self-isolation leave and be paid a minimum of SSP. 

However, it is possible that the Government would expect these employees to be taken off furlough leave and considered to be on sickness / self isolation leave. If this is the case, the employer would not be able to re-claim pay through the Scheme for this period or, arguably, any period of furlough immediately preceding sickness / self isolation if that period was less than three weeks. 

Can I furlough a staff member who is caring for someone or looking after children?

Yes, these staff members can be furloughed. However, the Government guidance is not explicit about whether you can only furlough and claim from the Scheme if you otherwise have no work for the staff member to do and would otherwise have considered making them redundant. 

This was previously a point of uncertainty in relation to shielded staff members, but the Government has since indicated that there is a requirement that the employer has no work for the staff member to do before the employer can claim from the scheme. This therefore suggests that the same requirement would apply to those who are carers or looking after children.

What should I do about staff members on maternity (or other family leave) or who are shortly about to take leave?

Individuals who are on or plan to take Maternity Leave must take at least 2 weeks off work (4 weeks if they work in a factory) immediately following the birth of their baby. This is a health and safety requirement. In practice, most women start their Maternity Leave before they give birth.

If a staff member is eligible for Statutory Maternity Pay (SMP) or Maternity Allowance, the normal rules apply, and they are entitled to claim up to 39 weeks of statutory pay or allowance. Staff members who qualify for SMP, will still be eligible for 90% of their average weekly earnings in the first 6 weeks, followed by 33 weeks of pay paid at 90% of their average weekly earnings or the statutory flat rate (whichever is lower). The statutory flat rate is currently £148.68 a week, rising to £151.20 a week from April 2020.

If an employer offers enhanced (earnings related) contractual pay to women on Maternity Leave, this is included as wage costs that can be reclaimed through the Scheme. The same principles apply where a staff member qualifies for contractual adoption, paternity or shared parental pay.

What if a staff member has more than one job?

Staff members can be furloughed from each job or furloughed from one and not the other. Contracts between the staff member and their respective employers are separate and so the scheme will apply separately. Each employer will only be able to claim in respect of their contract with the individual, and the cap on payments will apply only to pay earned through that particular employer. 

The Government has confirmed that a staff member can take up new employment whilst being furloughed, without jeopardising the original employer’s access to the Scheme. However, most employment contracts do not permit a staff member to take up new work or may require that they obtain the employer’s consent before they do so. Employers will therefore need to consider how they wish to respond to such requests. 

Can I ask furloughed staff to do any work or training?

The basis of the Scheme is that staff must not be carrying out work for the employer during the furlough leave period. However, furloughed staff members can take part in, and indeed are encouraged to undertake, volunteer work or training, so long as this does not provide services to or generate revenue for the employer. 

Where staff members undertake training at the request of their employer they must be paid at least the NLW/NMW for the time spent training, even if this is more than the 80% of their wage that will be subsidised.

Apprentices can also continue to train whilst furloughed and must be paid at least the Apprenticeship Minimum Wage, National Living Wage or National Minimum Wage as appropriate for all the time they spend training, even if this is more than the amount the employer can claim through the scheme. 

Payments made in respect of training must take into account the increase in minimum wage rates from 1st April 2020. As such, employers will need to ensure that the furlough payment provides sufficient monies to cover these training hours. Where the furlough payment is less than the appropriate minimum wage entitlement for the training hours, the employer will need to pay the additional wages to ensure at least the appropriate minimum wage is paid for 100% of the training time.

What if I need to select from a group of staff to decide who goes on furlough leave?

Where employers are operating a skeleton staff rather than closing down a workplace or function altogether, they may need to select who goes on furlough leave from a group of staff doing the same work. It does not appear that the Government has or will set restrictions in terms of how an employer chooses which staff go on furlough leave. 

However, general principles of employment law are rooted in fair process and natural justice, which suggests that it would be wise for employers to apply their minds to a fair and objective method of selection if this is necessary and operationally feasible. It is important that employers do not rely on factors which could amount to unlawful discrimination when selecting employees to go on furlough leave. This will be of particular importance to employers who are not proposing to top up pay to normal levels, since those employees on furlough leave will be disadvantaged by the arrangements.

Employers could also consider alternative ways to achieve the necessary reduction in operational staff e.g.  by for seeking volunteers for furlough leave from an affected group of staff or rotating the period of furlough leave among a group of affected staff. 

Can I rotate staff on furlough leave?

The minimum period during which a staff member can be furloughed is three weeks. After that period, it seems that staff members can return to work (if there is work available for them to do) or take annual or any other type of leave. This means that it should be possible to rotate those on furlough in three week blocks or more. If an employer intends to introduce rotation, they should make it clear how long periods of furlough will last in their letter to staff members.

What staffing costs are covered by the Scheme?

The Scheme will provide a grant to cover the lower of 80% of a staff member’s regular wage or £2,500 per month. While initially the Government’s guidance said that this would not include fees, commission and bonuses, it has since been confirmed that you can claim for any regular payments you are obliged to pay your staff members. This includes wages, past overtime, fees and compulsory commission payments. However, discretionary bonus (including tips) and commission payments and non-cash payments should be excluded.

The reference salary should not include the cost of non-monetary benefits provided to staff members, including taxable benefits in kind. Similarly, benefits provided through salary sacrifice schemes (including pension contributions) that reduce a staff member’s taxable pay should also not be included in the reference salary. 

Employers will also be able to claim the associated employer National Insurance contributions and minimum automatic enrolment employer pension contributions on the subsidised wage. Further guidance will be issued as to how NIC and pension should be calculated for the purpose of making a claim before the Scheme goes live. 

Employer National Insurance Contributions and automatic enrolment contribution on any additional top-up salary will not be funded through this scheme. Nor will any voluntary automatic enrolment contributions above the minimum mandatory employer contribution of 3% of income above the lower limit of qualifying earnings (which is £512 per month until 5th April and will be £520 per month from 6th April 2020 onwards).

Both the apprenticeship levy and student loans should continue to be paid as usual. Grants from the Job Retention Scheme do not cover these. Grants cannot be used to substitute redundancy payments. HMRC will continue to monitor businesses after the scheme has closed.

How should 80% of salary be calculated for the purposes of the Scheme?

For full or part time employees on a salary, the scheme will cover 80% of the employee’s salary, as of 28th February 2020, before tax. For staff members whose pay varies, the calculation is slightly more complex. If the staff member has been employed for 12 months or more, you can claim the highest of either the:

  • same month’s earning from the previous year; or
  • average monthly earnings for the 2019-2020 tax year

If the employee has been employed for less than 12 months, you can claim for 80% of their average monthly earnings since they started work.

If the employee only started in February 2020, you should work out a pro-rata for their earnings so far, and claim for 80%.

What is the minimum I need to pay staff, and do I need to top up pay?

In order to claim from the Scheme, an employer must agree to pay their staff the lower of 80% of their regular wage or £2,500 per month. This is a minimum threshold. Employers must pay staff members all the grant received for their gross pay and should continue to subject pay to normal income tax and other deductions. No fees can be charged from the money that is granted.

The Government encourages employers to “top up” payments to full salary, although this is not a mandatory requirement to participate in the Scheme. However, there is a risk that staff members could seek to recover lost wages if they are placed on furlough leave without a top up in circumstances where they have not agreed to the furlough leave arrangements.

Wages of furloughed staff members will be subject to Income Tax and National Insurance as usual. Staff will also pay automatic enrolment contributions on qualifying earnings, unless they have chosen to opt-out or to cease saving into a workplace pension scheme.

Employers who pay more than automatic enrolment contributions should either continue to pay these and top up salary or could consider reducing contributions. However, employers should have regard to the Pension Consultations Regulations, under which there is a 60 day minimum consultation requirement. If breached without reasonable excuse, the Regulator has the power to impose a financial penalty on the employer. Normally, an employee cannot switch freely out of a salary sacrifice scheme unless there is a life event. HMRC agrees that COVID-19 counts as a life event that could warrant changes to salary sacrifice arrangements, if the relevant employment contract is updated accordingly.

Employers will be liable to pay Employer National Insurance contributions on wages paid, as well as automatic enrolment contributions on qualifying earnings unless a staff member has opted out or has ceased saving into a workplace pension scheme.

Where the employer provides benefits to furloughed staff members, this should be in addition to the wages that must be paid under the terms of the Scheme.

What about National Living Wage / National Minimum Wage?

The usual NLW / NMW rules do not apply to furlough leave. Individuals are only entitled to the National Living Wage (NLW)/National Minimum Wage (NMW) for the hours they are working. Therefore, furloughed staff members, who are not working, must be paid the lower of 80% of their salary, or £2,500 even if, based on their usual working hours, this would be below NLW/NMW.

However, if staff members are required to complete training courses whilst they are furloughed, then they must be paid at least the NLW/NMW (including apprentice NMW) for the time spent training, even if this is more than the 80% of their wage that will be subsidised.

Payments made in respect of training must take into account the increase in minimum wage rates from 1st April 2020. As such, employers will need to ensure that the furlough payment provides sufficient monies to cover these training hours. Where the furlough payment is less than the appropriate minimum wage entitlement for the training hours, the employer will need to pay the additional wages to ensure at least the appropriate minimum wage is paid for 100% of the training time.

If I pay staff less than normal while on furlough leave, does this affect pay for other periods of leave (e.g. annual leave and sickness leave)?

By agreeing with staff that they will be on furlough, you are effectively obtaining agreement to temporarily vary their contracts. If you are doing so on reduced pay (e.g. 80%) this would amount to a contractual agreement to reduce pay for the period of furlough leave. Arguably, this is an agreement in respect of periods of furlough leave only. 

Although the official Government guidance on the Job Retention Scheme is silent on the matter of pay during holidays, HMRC is advising that holidays can be taken during furlough and should be paid at the normal rate of pay. See our Q&A on “Can staff take annual leave whilst furloughed” below for further details.​

What happens to T&Cs during furlough leave?

Staff members remain under contract during furlough leave, meaning that they should not be dismissed. It seems that an employer could begin or continue redundancy consultation during furlough leave, however if staff are dismissed their employer will no longer be entitled to claim from the Scheme. 

All other terms and conditions of employment will be unaffected by furlough leave since the staff member remains in employment, albeit not carrying out work. This would include, for example, the right to: 

  • accrue continuous service;
  • accrue holidays;
  • be paid Statutory Sick Pay entitlement;
  • access maternity and other parental rights;
  • not be unfairly dismissed; and
  • receive redundancy payments (if eligible).

Can staff take annual leave whilst furloughed?  If so, what should they be paid?

This issue has been the subject of substantial debate, and the Government’s official Job Retention Scheme guidance remains silent on whether holidays can be taken during furlough. However, HMRC now appears to be advising businesses via other routes (e.g. Twitter) that annual leave, including public holidays, can be taken during furlough. It is also advising that holidays should be paid at the normal rate of pay, i.e. not restricted to 80%. In support of this position, Acas initially took the view that a furloughed staff member could not take annual leave but has subsequently changed its guidance to confirm that this is possible.

We will update our guidance again if the Government’s official Job Retention Scheme guidance changes. However, in the meantime, employers may wish to proceed on the basis of HMRC’s advice that the scheme will cover periods of annual leave and that employers are required to top up salary during holidays. 

How do I implement furlough leave?

At present, the only guidance we have from the Government is that employers must specifically designate staff members as being on furlough leave. Employers must write to staff members informing them of the change in status and must keep a record of this communication for five years. Claims should be started from the date that the employee finishes work and starts furlough, not when the decision is made, or when they are written to confirming their furloughed status.

However, employers also need to consider the contractual arrangements between the organisation and staff members to determine whether there are any contractual risks in implementing furlough leave. 

What are the contractual risks?

Given that this is a new class of leave not previously seen in the UK, employment contracts are not likely to confer any automatic right to place staff members on furlough leave. As a result, to place staff on furlough leave unilaterally could put employers in breach of contract, thereby giving employees with more than two years’ service the option of terminating the contract and claiming constructive dismissal.

However, in our view, this is unlikely to happen since, in those circumstances, the employees would no longer be eligible for support through the Scheme. In addition, any employee would have to pursue their claim in an Employment Tribunal, which could take many months and may not result in any financial award greater than the support offered through the Scheme. 

Regardless of the contractual position, we would advise that it would be sensible for all employers to consider seeking agreement to furlough leave arrangements (whether express or implied) and retain a record of agreement in writing. 

Do I need to collectively consult to obtain agreement to a change in terms and conditions?

The Government’s guidance suggests that, if sufficient numbers of staff are involved, it may be necessary for the employer to engage collective consultation processes to procure agreement to changes to terms of employment. Collective consultation usually applies when an employer is contemplating the redundancy dismissals of 20 or more employees. However, it can also apply when an employer is proposing to change terms and conditions of employment and anticipates that 20 or more staff will not agree to the change voluntarily. In those circumstances the employer may be forced to dismiss staff from existing contracts and immediately offer re-engagement on contracts containing the new contractual terms. 

Where the employer is faced with dismissal and re-engagement of 20 or more employees, they would need to ensure that they had complied with collective consultation rules before proceeding. Broadly speaking, the rules are that the employer must consult through a recognised trade union or, in its absence, elected representatives from the workforce. Where it proposes to dismiss and re-engage 20-99 employees, the minimum period of consultation is 30 days. Where 100 or more employees are expected to be dismissed and re-engaged, the minimum period of consultation is 45 days.

In these circumstances, we would suggest that employers who may be facing these number thresholds first discuss potential furlough with staff members to determine whether they are likely to be able to proceed by agreement rather than by dismissal and re-engagement. If sufficient numbers of staff voluntarily agree to the changes, collective consultation is not required. It will only become necessary where 20 or more staff do not agree and therefore the employer is forced to consider a longer consultation process within the collective consultation framework. 

How can agreement be obtained if staff are not present in the workplace?

We would suggest that employers relying on express agreement should ask staff to sign a letter confirming their agreement or, if that is not practical, to email their consent or give consent through other electronic means.

However, we appreciate that some employers may be facing the prospect of placing high numbers of employees on furlough leave and may not have the administrative resources to track all responses to ensure consent is given. These employers may wish instead to rely on implied consent, i.e. write to staff members confirming that they will be placed on furlough leave and advise that any staff member who does not agree should notify the employer of their objection. 

Note that the risk involved in relying on implied consent to furlough leave is likely to be reduced where employers are topping up to full pay. In these circumstances the financial value of any claim for breach of contract is likely to be nil since those employees would not have suffered financial loss.

Conversely, the risk of a successful claim is greater for employers who do not intend to top up to full pay. Employers in these circumstances should carefully weigh the risk of a successful claim against the administrative resources involved in seeking express consent.

Does LAW have style letters for implementing furlough leave?

Yes, for LAW clients, we have produced style letters which can be used to place staff members on furlough leave (or convert lay-off to furlough leave). These contain optional wording depending on whether the employer is seeking positive or implied consent to the arrangements. To access these, login to the Online Client Area at the top right of the LAW website.  You will find the documents within the Employment Law & HR section named Coronavirus.  If you do not already have an Online Client Area account, please register here.  If you have forgotten your password, go here.  If you have any problems please contact hayley.shaw@lawatwork.co.uk or call 0141 271 5555.

When will be Scheme be up and running and how will it be administered?

The Chief Executive of the HMRC announced on 8th April that the Job Retention Scheme should be open from 20thApril, and that the first payments are planned for 30th April. Since the scheme will be backdated, it will to be possible for employers to claim for any employees placed on furlough leave between now and the date when payments are made by HMRC. 

The Scheme will be administered via a new online HMRC portal, which is currently under development. Employers will only be able to submit one claim at least every three weeks, which is the minimum period a staff member can be furloughed for. To claim, employers will need:

  • their ePAYE reference number;
  • the number of employees being furloughed;
  • the claim period (start and end date);
  • amount claimed (per the minimum length of furloughing of 3 weeks);
  • the organisation’s bank account number and sort code;
  • a contact name; and
  • a contact phone number.

The onus is on employers to calculate the amount claimed. Employers should make their claim in accordance with actual payroll amounts at the point at which they run payroll or in advance of an imminent payroll. HMRC will retain the right to retrospectively audit all aspects of claims. Once HMRC has received a claim and confirmed the employer is eligible for the grant, they will pay it via BACS payment to a UK bank account.

Payments received by a business under the scheme are made to offset these deductible revenue costs. They must therefore be included as income in the business’s calculation of its taxable profits for Income Tax and Corporation Tax purposes, in accordance with normal principles. Businesses can deduct employment costs as normal when calculating taxable profits for Income Tax and Corporation Tax purposes.

LAY OFF AND SHORT TIME WORKING --- last updated 31/03/20; 9.35am

What do the terms “lay-off” and “short time working” mean?

Lay-off and short-time working are frequently used by employers as a useful way of handling temporary work shortages and adverse trading conditions without having to resort to redundancy. Laying off employees means that the employer provides employees with no work (and no pay) for a period while retaining them as employees; short-time working means providing employees with less work (and less pay) for a period while retaining them as employees.

Lay-off may need to be considered in the following scenarios:

  • A downturn in work due to the effect of COVID-19 on suppliers and customers means that fewer employees are required on a temporary basis.
  • Temporary closure of the workplace due to insufficient employees being able to work.

Short-time working may need to be considered where there is:

  • A downturn in work due to the effect of COVID-19 on suppliers and customers meaning that the business does not need all employees to work their contracted hours.

An alternative to either option is now provided through the Job Retention Scheme, under which employers may “furlough” employees and claim support with their pay. Further details can be found in our Coronavirus Job Retention Scheme Q&As. 

Can I lay off staff or put them on short time working?

Provided you have the contractual right to lay-off or place employees on short-time working, you have the right to instigate these measures for your employees. It may also be possible to introduce these measures if there is a custom and practice in your industry or sector to impose lay off. To be in a position to rely upon such a custom you would have to show that the custom is both:

  • "reasonable, certain and notorious"; and
  • such that "no workman could be supposed to have entered into service without looking to it as part of the contract".

This is a strict test and an employer should be confident they can satisfy it before they rely on an implied term. If employees are laid-off or put on short-time working in circumstances where the employer does not have the express or implied contractual right to do so then the employer will be in fundamental breach of contract entitling the employee to resign and claim constructive dismissal or alternatively raise an action for unpaid wages.

Note that employees who are already unable to work, for example due to sickness or (arguably) medically advised self-isolation, cannot be laid-off.

How long can I keep staff on lay off or short time working?

There is, in theory, no limit. However, if the lay-off or short-time has lasted for more than 4 consecutive weeks or more than a total of  6 weeks in any 13-week period, then the employee may give written notice (not more than 4 weeks after the lay-off or short-time has finished) that s/he intends to claim a redundancy payment.  S/he must then give the necessary notice to terminate the contract and will be entitled to be considered redundant. The employer may agree to meet the claim or refuse to do so and serve a counter notice within 7 days on the ground that it reasonably expects to be able to provide at least 13 weeks continuous employment without further lay-offs or short-time working. 

If you have a clause in place which requires no period of notice to instigate the short-time working, you can move to introduce it quickly however, we would recommend that you communicate with the workforce so that they can start thinking about plans they need to make given the reduction in their pay.  

If you do not have an existing lay-off or short-time working clause, then you would need to ask employees to sign a variation of contract agreeing to a fixed period of unpaid leave or to reduce their working hours and pay for a temporary period of time.

What do I need to pay employees on lay off or short time working?

During periods of lay-off employees are entitled to a statutory minimum guarantee payment of 5 days at the prevailing rate set by the Government (currently £29 / day). 

Short-time working is paid at the normal hourly rate for the hours worked that day.  Employees on short time working who are not provided with work on a normal contractual working day, will be entitled to the £29 guaranteed payment for that workless day. A maximum of 5 days at £29 should be paid across the lay-off or short-time working period. If anyone earns less than £29 / day, they will be entitled to the lesser amount.

WORKPLACE CLOSURES AND KEY WORKERS--- last updated 31/03/20; 9.35am

Which organisations should still be operating?

As part of the announcement on Sunday 22nd March, the UK Government issued instructions regarding businesses and venues which must now temporarily close to avoid the spread of coronavirus. Examples are non-essential retail stores, libraries, leisure centres, places of worship and playgrounds. A full list can be found here

On 25th March, the Scottish Government went further and said that all business premises, sites and attractions should close unless:

  • Essential to the health and welfare of the country during this crisis;
  • Supporting (or being repurposed to support) essential services;
  • Capable of working in a way which is fully consistent with established social distancing advice; or 
  • Wider public heath, health and safety or other considerations apply and require a facility or service to operate for a specific period of time for a safe shutdown process to be completed.

Even if the business premises fall within one of the above categories the Scottish Government advises that employers should only keep essential parts of the premises open. The Scottish Government has re-iterated its view that construction sites should close unless it is essential construction like hospitals. Further details of the Scottish Government’s guidance can be found here.

What should businesses do to help employees work from home?

To encourage remote working employers should:

  • Facilitate and make available flexible working practices for all employees.
  • Investigate ways of using technology to limit the amount of face-to-face contact. For example, video conferencing to facilitate remote meetings. For customer facing organisations, consider introducing or enhancing use of self-serve facilities.

We are still open, but one of our workers has been confirmed as having the virus. Should we close the workplace?

Official guidance says NO for now; there are no restrictions or special control measures while waiting for laboratory test results. The onus is on the individual employee who has symptoms to self-isolate. Symptoms include a persistent cough or high temperature. In these circumstances, individuals must self-isolate for 7 days. 

Therefore, if one of your staff become infected and have been working in close proximity to their colleagues, you could envisage a situation where many or all of your staff must self-isolate. In these circumstances, you may take a business decision to close the workplace.

Businesses should be mindful of anyone who may be more vulnerable due to age, pregnancy or a pre-existing condition and consider flexible arrangements for them during this time.

If my business is still allowed to operate, do my employees need to come to work?

Broadly speaking, yes, although there is a growing list of employees who may not be able to come to work for various reasons – those who are unwell, those who are self-isolating and those who have caring responsibilities for children who are now unable to attend school/nursery. In each of these situations the employee has a legitimate and important reason for being off work although the pay that they are entitled to will vary depending on the reason why they are off. For more information see our Q&As relating to sick pay and self isolation elsewhere on this page.

The Government has also made it very clear that employees should only attend work if they are unable to work from home.

Even if your business is not on the list of businesses and venues which must now temporarily close you should, of course, consider your health and safety responsibilities towards your staff. The Chief Constable of Police Scotland has urged employers to consider “is what you are doing absolutely vital to maintain the safety and sanctity of the county? If it isn’t, don’t do it. Stay at home”. Clearly this statement is aimed at employers who are still operating and requiring employees to work from a location which is not their home. 

The UK and Scottish Governments are emphasising the importance of employers being responsible and minimising the risk to their employees as far as possible.

The Scottish Government’s guidance says business should ask:

  • Is what you do essential or material to the effort against the virus or to the wellbeing of society?
  • If so, can your staff work from home?
  • If not, can you practice safe social distancing and comply with ALL other standard health and safety requirements.

If the answer to none of the above questions is “yes” the Scottish Government’s advice is to close on a precautionary basis.

Are people whose workplaces are allowed to stay open “key workers”?

Not necessarily. The term “key worker” is used for the purpose of determining which children can continue to access local authority education and childcare settings following the general closure of schools and nurseries. 

How is “key worker” defined?

The UK Government has issued an extensive list of job types which determine whether someone holds “key worker” status including certain people working in health and social care, education and childcare, transport and food and other essential goods. The full list can be found here

The Scottish Government has taken a different approach and has outlined three broad categories of “key worker”, leaving it to each local authority to create a more specific list taking into account local needs and challenges. Further information can be found here.

If you employ “key workers” then you might be asked by them to provide a letter that they can provide to their local authority for the purposes of accessing education and childcare settings. Our clients can access a style letter in our client area.

Does LAW have a style letter for employers to give to parents who are key workers?

Yes, but as above, please note that the definition of key worker is different across the UK.  To access the style, login to the Online Client Area at the top right of the LAW website.  You will find the document within the Employment Law & HR section named Coronavirus.  If you do not already have an Online Client Area account, please register here.  If you have forgotten your password, go here.  If you have any problems please contact hayley.shaw@lawatwork.co.uk or call 0141 271 5555

SCHOOL CLOSURES AND WORKING PARENTS--- last updated 06/04/20; 11am

Are parents entitled to time off to look after their children?

Where an employee has caring responsibilities or is looking after children, it may be open to the employer to consider furlough leave. Please see our Q&A on the Job Retention Scheme for more details.

Employees have the statutory right to time off for dependants. The right applies in certain specified situations one of which is where there is unexpected disruption, termination or breakdown of arrangements for care of a dependant. Importantly the right is to a reasonable amount of time off and is unpaid. In normal circumstances often “reasonable” would mean a day or two, however, given the current circumstances there is a strong argument that employees will be able to take prolonged periods of time off using this right. 

With schools and nurseries closed and many grandparents falling into an “at risk” category, parents will have few, if any, alternative childcare options. However, because there is no right to receive pay for this type of leave (unless there is a policy or contractual clause which states otherwise) it is unlikely that employees will see it as a credible long term option. Although there is, of course, the possibility that the Government steps in and provides benefits in this situation.

How can we help employees and ensure our business demands are met?

Most organisations are likely to encounter a range of circumstances – there might be people who can do no work at all and there might be people who can continue to do their job as normal from home because their children are older or they have help (and a whole range of circumstances in between), Accordingly, a “one size fits all” approach is unlikely to be suitable. We’d encourage you to be flexible where possible in order to allow employees to keep working and earning a living, e.g. it might be that people can do work in the evenings and at the weekends, can reduce their hours or can do alternative duties.  It’s not easy but you will want to try and come up with an approach that balances the business needs with the needs of your staff.

In circumstances where you cannot agree on a suitable arrangement with the employee to allow them to keep working then the employee will need to exercise their statutory right to time of for dependants which, as above, is typically unpaid. It is important to note than an employee cannot be penalised or dismissed as a result of exercising this statutory right so you cannot give warnings to an employee or dismiss them for taking this type of leave, even if it is prolonged (assuming that the leave is still “reasonable” in the circumstances). 

Does the position change when it reaches the school summer holidays?

If things are back to normal by the school summer holidays then you’ll be back in the position that you were before the Coronavirus outbreak as far as time off is concerned. However, if disruption continues, the current position regarding leave might continue for longer. Given that the timescales are unknown at this stage, it would be worthwhile emphasising that whatever you agree will be kept under review and will be subject to change.

EMERGENCY VOLUNTEER LEAVE --- last updated 26/03/20; 9:41am

What is Emergency Volunteer Leave?

Following the passing of the Coronavirus Act 2020, the concept of Emergency Volunteer Leave has now come into force. ‘EVL’ is a temporary provision which allows all employees to stop making themselves available for work, so that they can go and provide voluntary work, typically in a hospital, or with social care. The only exception is that employers with less than ten employees are not included. 

How long does it last for?

Employees can volunteer for one block of leave, consisting of two, three or four weeks initially, over the next sixteen week reference period. Depending on the state of the nation, further volunteering periods may be set, in which the entitlement would be reset and employees could take a further block of EVL. 

Is EVL paid leave?

Volunteers will be able to make an application to a UK-wide compensation fund, but EVL does not cost the employer any money directly. 

What process do employees have to follow?

In order to qualify for EVL, employees must provide the employer with a certificate of authority confirming they are an emergency volunteer. This must be: 

  • provided at least three days in advance of the planned period of leave; and
  • issued by a “relevant authority” – this basically means the Department of Health, the NHS or a local authority

How does this impact a volunteer’s employment?

The provisions in the act closely mirror those for employees who are on maternity leave. Employees will remain entitled to the benefit of all of their terms and conditions of employment which would have applied if they had not been absent - except for those around pay. The period of absence will not affect pension or benefit entitlements.

Volunteers will have a statutory right to return to the job they were employed in before taking this leave, on terms and conditions no less favourable than those which would have applied if they hadn't been absent. In addition, volunteers will have the right not to be subjected to a detriment or dismissal on the grounds of taking EVL.

People who take up volunteer leave and who are found to be abusing this, or acting in a way contrary to the employer’s disciplinary policy could still be subject to disciplinary proceedings. 

What does this mean for your organisation?

You will not be able to refuse an application for this type of leave. Even if you feel this may leave you with operational difficulties, this would not be a sufficient reason. You will need to think about the effect this may have on your organisation. If you have key workers or people carrying out work from home who wish to take this up, then you will need to consider having place contingencies. 

If the employees who wish to volunteer are critical to your organisation, it would be sensible to discuss their plans and try to agree a shorter period of EVL. Alternatively, if some employees are on furlough leave you may wish to require them to come to work instead. Furloughed employees who wish to volunteer are likely to be able to do so without affecting their furlough. 

ANNUAL LEAVE  --- last updated 09/04/20; 9am

Can we ask staff to take annual leave for a set period?

You can ask your employees to agree to take a period of annual leave. If the employees do not agree, then you may give notice ordering them to take holiday on specified dates. There are no explicit requirements about the form that this notice must take, but this notice must be at least twice the length of the period of leave that the employee is being ordered to take.

When staff return to normal working patterns, they will have accrued a lot of annual leave. Can I do anything about this?

Staff will continue to accrue annual leave as normal whilst under contract with an employer. Normally, employees are required to “use or lose” statutory annual leave (5.6 weeks) in the year in which it accrues, unless they are on a form of family leave or, in some circumstances, have been unable to take holidays due to sickness. 

One option to prevent a large amount of annual leave building up without being taken is to give notice to employees requiring them to take leave (see above). However, to help with this issue the Government has amended the Working Time Regulations to allow statutory holidays accrued this year to be carried forwards for up to two years where it was not reasonably practicable for staff to take leave due to the outbreak. 

The carry over amount will be limited to four weeks’ statutory leave. Statutory holidays above this amount (1.6 weeks, which for some staff will amount to designated bank holidays) should be taken this year. Contractual holidays over and above the 5.6 weeks statutory entitlement are a matter for agreement between employers and staff. Some employers already allow carry over of leave from one year to the next. An employer could allow for more leave than usual to carry forward or require staff to take holidays this year (whether on certain dates or at the employee’s choice).

Can staff take annual leave whilst furloughed?

This issue has been the subject of substantial debate, and the Government’s official Job Retention Scheme guidance remains silent on whether holidays can be taken during furlough. However, HMRC now appears to be advising businesses via other routes (e.g. Twitter) that annual leave, including public holidays, can be taken during furlough. It is also advising that holidays should be paid at the normal rate of pay, i.e. not restricted to 80%. In support of this position, Acas initially took the view that a furloughed staff member could not take annual leave but has subsequently changed its guidance to confirm that this is possible.

We will update our guidance again if the Government’s official Job Retention Scheme changes. However, in the meantime, employers may wish to proceed on the basis of HMRC’s advice that the scheme will cover periods of annual leave and that employers are required to top up salary during holidays. 

IMPACT ON EMPLOYMENT TRIBUNALS --- last updated 24/03/20; 8:44am

What is happening with the Tribunal Service?

Hearings up until 26th June 2020 that were to be conducted in person will now be converted into initial case management telephone hearings. If the hearing in question was to be a full hearing, the other days will be cancelled and arrangements discussed for a rescheduled hearing. Full guidance from HM Courts and Tribunals is as follows:


"In view of the rapidly changing circumstances created by the Covid-19 pandemic, the Presidents of the Employment Tribunals in England & Wales and in Scotland have directed that from Monday 23rd March 2020 all in-person hearings (hearings where the parties are expected to be in attendance at a tribunal hearing centre) listed to commence on or before Friday 26th June 2020, will be converted to a case management hearing by telephone or other electronic means which will take place (unless parties are advised otherwise) on the first day allocated for the hearing. This will provide an opportunity to discuss how best to proceed in the light of the Presidential Guidance dated 18th March 2020, unless in the individual case the President, a Regional Employment Judge or the Vice-President directs otherwise.  If the case is set down for more than one day then parties should proceed on the basis that the remainder of the days fixed have been cancelled. For the avoidance of doubt, this direction also applies to any hearing that is already in progress on Monday 23rd March 2020 and, if not already addressed before then, the parties may assume that the hearing on that day is converted to a case management hearing of the kind referred to above. In person hearings listed to commence on or after 29th June 2020 will remain listed, in the meantime, and will be subject to further direction in due course.  The parties remain free to make any application to the Tribunal.

This Direction will be subject to ongoing review and in particular will be reviewed on 29th April 2020 and 29th May 2020 to take into account the circumstances as they then stand in connection with the Covid-19 pandemic”.

RECRUITMENT ISSUES --- last updated 31/03/20; 9.35am

If we have offered someone employment but they haven’t started yet, can we withdraw the offer?

An offer of employment can be withdrawn at any time before it is accepted by the employee or before any conditions of the offer have been satisfied. As long as you are satisfied that it is clear the employee has not yet accepted the offer, then you can advise them that it is withdrawn due to a change in the business requirements.

Once any conditions to which the offer was made subject have been satisfied and the employee has accepted the offer, a contract of employment has been formed. In this case, if you wish to terminate the contract you must give the employee the notice that they are entitled to under the contract.

If the employer would prefer not to terminate the contract as it expects that it will still require the new recruit once the peak of coronavirus and social distancing is over, it may instead agree with the individual that their start date will be delayed, perhaps indefinitely until more is known. It would be for the employer and the new recruit to agree on any terms which would apply during the interim period, including whether or not this would be paid and at what level. In the event that the new recruit did not agree to such a delay, the employer would likely have no option but to terminate the contract to avoid breach of contract and/or wages claims.

Can we conduct right to work checks remotely?

Right to work checks have been temporarily adjusted to make it easier for employers to carry them out. As of 30thMarch 2020 the following temporary changes have been made:

  • checks can now be carried out over video calls;
  • job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;
  • employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.

Checks continue to be necessary and you must continue to check the prescribed documents listed in Home Office guidance. It remains an offence to knowingly employ anyone who does not have the right to work in the UK.

GENDER PAY GAP REPORTING --- last updated 31/03/20; 9.35am

On 24th March the Government Equalities Office (GEO) and the Equality and Human Rights Commission (EHRC) suspended enforcement of the gender pay gap deadlines for this reporting year (2019/20). The decision means there will be no expectation on employers to report their data.

IR35 / OFF PAYROLL WORKING --- last updated 31/03/20; 3.30pm

Reforms to off-payroll working rules have been delayed by 12 months as part of the government’s Covid-19 economic response package. Reforms will now come in on 6th April 2021 instead of 6th April 2020.

SUPPORT FOR BUSINESSES --- last updated 09/04/20; 9am

What financial support is available for businesses?

The UK Government has set out a package of measures to support public services, people and businesses through this period of disruption caused by COVID-19.  Read the Government’s official guidance here.

We’re a charity. Is there any specific help for us? 

The Scottish Government has announced the introduction of a Third Sector Resilience Fund. This is a £20 million emergency fund for charities, community groups, social enterprises and voluntary organisations working in Scotland which find themselves in financial difficulties directly as a result of the coronavirus pandemic. The purpose of the fund is to help voluntary sector organisations to stabilise and manage cash flows throughout this period using grants and interest-free loans. It is not intended to support organisations to manage pre-existing debts and financial difficulties and to that end applicants’ eligibility will be assessed before a grant is offered.

In addition, the UK Government announced on 8th April that it would provide a package of support for charities amounting to £750 million, £350 million of which will be specifically reserved for smaller local charities. £360 million will be provided for charities providing essential services during the crisis. The Government has also committed to match, pound for pound, public donations to the Big Night In fundraising initiative, starting with an initial donation of £20 million. 

HEALTH & SAFETY ISSUES --- last updated 01/04/20 9am

What H&S responsibilities are on employers for the workplace, when the workplace is closed?

With a number of workplaces closed and most businesses operating on a homeworking basis, responsibility for our normal workplace location continues. Some building insurers will expect a risk assessment to have been completed to ensure the overall safety of the premises while unoccupied.  We understand the business pressures, so our Safety team have brought together an assessment to help with a sensible list of controls we think are worth considering and ensuring have been actioned.  

The remainder of the assessment can be completed by you depending on what has been completed or perhaps a reminder on what we should still endeavour to action.  Then you have the filed documentation.  We hope you find this of help.  

To access the risk assessment, login to the Online Client Area at the top right of the LAW website.  You will find the document within the Health & Safety section named Coronavirus.  If you do not already have an Online Client Area account, please register here.  If you have forgotten your password, go here.  If you have any problems please contact hayley.shaw@lawatwork.co.uk or call 0141 271 5555.

 

What health & safety duties do I have as an employer?

Employers have a duty to ensure the health, safety and welfare of their staff. Pregnant workers and those with ability impairment have protection.

You should take a risk-based approach and consider: -

  • employees in the at-risk categories (over 70, existing health issues, pregnant employees etc.) who might need special protection. 
  • Employees whose work involves close personal contact with other people such as health and social care, childcare, etc.  Additional control measures need to be implemented such as PPE, provision of sanitiser, etc.   
  • Current work practices may need to be considered to reduce the risk of cross-infection.
  • The agreed controls and /or changes in work practices should result in a new risk assessment, created in conjunction and shared with all employees. Risk Assessments in workplaces employing more than five employees must be recorded and kept under review  
  • Equally, you could use the appropriate guidance document for your type of business, listed in Question 1.

 

How should we communicate to visitors when they are entering the premises?

The BBC has produced posters that you may wish to display in your premises to remind people of their responsibilities. https://www.bbc.co.uk/news/uk-51914645

 

Do we need policies and procedures to manage this virus?

You may wish to create a set of procedures to document the actions you will take for the various scenarios that may emerge, e.g. employee confirmed case, employees required to self-isolate due to close contact or symptoms; employees falling into the at risk categories; deep cleaning and sanitising your property surfaces and equipment following any confirmed cases, etc.

 

Should I issue my staff with masks?

  • Employees are not recommended to wear facemasks to protect against the virus. There is a risk of cross infection for a person not trained to wear a protective mask correctly. The mask can become contaminated, requires changing on a regular basis and encourages hand to face contact
  • The best way to reduce the risk of infection is regular hand washing and avoiding direct or close contact (2 metres) with any person.  

 

What do we need to do for employees working from home?

Considering the current emergency situation we find ourselves in, we are of the view that attention should be first given to employment protection and the day to day continued running of your business. When that has been achieved, we should consider the health and safety responsibilities for home workers. When someone is working from home temporarily, as an employer you should ensure:

  • Regular communication with manager and potentially other team members via online support tools e.g. Skype
  • That they clearly understand the work delivery expectations
  • That they have a work suitable area at home 

Should this work from home situation continue for several months, our view is that employers should consider having a full Homeworking Risk Assessment completed to show continued interest, care and support for employees. The LAW Safety Team can provide the Assessment tool to use.

 

Do we need risk assessments for staff working from home?

If work is primarily with display screen equipment, the Health & Safety Executive advises that employers do not need to do home workstation assessments for those working from home temporarily. 

You could provide workers with advice and forms to complete their own basic assessment at home. It needs to be accepted that it will not always be possible to follow the letter of the law in relation to home working risk assessments and that the priority should be to ensure that where possible people have the ability to work from home. 

 

Do I need to provide lots of equipment to staff now working from home?

Employers should try to meet those needs where possible, e.g. this could mean allowing workers to take this equipment like laptops, keyboards etc. home.

For other larger items (e.g. ergonomic chairs, height-adjustable desks) encourage workers to try other ways of creating a comfortable working environment (e.g. supporting cushions), in the short term. Refer to the answer above relating to when a Homeworking Risk Assessment is considered sensible timewise to consider.

 

Can I take my child to work?

The Care Inspectorate have advised that children can be in the workplace if they are being looked after by the parent/guardian, subject to the workplace being suitable and employers agreeing to it.  Employers will have to check with their insurers before allowing children into the workplace.

If the children are to be looked after in the workplace by someone other than the parent for more than 2 hours a day, the employer would need to register as a day care provider and comply with the relevant guidance and checks.  

This situation may change considering the current situation but in the meantime the Care Inspectorate guidance should be observed.

 

How do I ensure business continuity?  

Business continuity activity should be based on: 

  • Business critical functions – what are the things you do in your business that are critical to its continued operation.
  • Availability of staff - how may staff so you need to continue those critical functions.
  • Availability of work – who are your customers and are they still in operation/buying from you/using your services, what is the impact of losing business, how long can you sustain losses, are there other things you can do that support the current situation to keep staff in employment
  • Increase in business – are you facing exceptional demands on your business due to corona virus and can you offer short term/part-time/temporary employment to others who can’t work.

The Government has announced assistance for businesses:

https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/covid-19-support-for-businesses

Further guidance on business continuity is available from: 

https://www.gov.uk/government/publications/business-continuity-planning/

For specific business continuity assistance contact the Law At Work Safety team  HandS@lawatwork.co.uk

 

How do I know that my current control measures are enough?

If you are following the current NHS and government advice you are doing all that you can to limit the spread of the virus.  Make sure that you are keeping up to date with advice documents as the situation is very fluid regularly updated. 

 

I have the NHS poster displayed in my premises, is there anything else I should do?

You may want to consider introducing a 'no shaking hands policy' and have hand sanitiser available throughout the building. It is good practice to ensure that you have a list of all visitors, contractors or temporary staff working on your site, and their contact details in order that you can notify them if any staff or visitors on your premises has been tested positive of the virus. These records must be stored in line with GDPR regulations.  

 

How can we protect ourselves from blame if we get it wrong?

Some decisions will be very difficult over the coming weeks and months.  You will be balancing the effect of disruption to your business with the commercial consequences of an approach that is too cautious.

If your business operations have wider health critical implications, you may have to balance the safety of your staff with the need to deliver the required support services and functions (for example, if your operation is necessary for the supply of utilities, food, healthcare and communications).

Keeping safety risk assessments under review will help identify when hazards are potentially becoming unmanageable and putting staff and others at significant risk.  The circumstances we are experiencing are extreme and the primary goal should be to keep staff as safe as possible.  If you think the risk to staff is unacceptable you may need to take the decision to cease that activity or task.

Prosecutions (if they ever are considered by enforcement), will be reduced significantly if you can demonstrate that you had a robust risk assessment process in place. 

We remind everyone safety compliance is based on the term "so far as is reasonably practicable" meaning the degree of risk in a situation balanced against the time, trouble, cost and physical difficulty of taking measures to avoid the risk.

Our H&S Team are available support everyone, in reviewing risk assessments and making sensible achievable control plans.

 

We’re a local shop, trying to stay open to support the community. Could enforcement action be taken against us if our food hygiene or safety risk assessments aren’t up to date?

In the current situation, it is very unlikely that HSE and Environmental Health Officers will be carrying out proactive visits. You should take a sensible, proportional approach, ensuring there are enough staff to open & close the store safely and receive deliveries. Endeavour to remember to complete food safety related records as part of your HACCP monitoring and verification and be vigilant towards the prevention of common safety hazards such as wet floors, tripping hazards and excessive manual handling. 

EMPLOYEE WELLBEING DURING COVID-19 --- last updated 01/04/20 9am

What can employers do to protect wellbeing and mental health?

COVID-19 has created major uncertainty which may cause challenges for people living with anxiety, stress or anxiety-based depression especially those that have health anxiety.  This may be exacerbated by worries around job security, financial responsibilities, caring for vulnerable relations and managing family responsibilities. 


Whilst there may undoubtedly be significant operational challenges to organisations, there is evidence that a supportive employer can help minimize the impact on wellbeing. Useful information has been published by the Chartered Institute of Personnel and Development as follows:

 

  • Reassure employees if they have concerns and keep them well informed about your organisation’s policies and contingency plans.
  • Make sure everyone, including managers, understands which sick pay and leave policies apply and how these will be implemented
  • Implement an internal communication strategy so that employees are aware of measures being taken to manage the situation in your organisation.  Understand that some people may have real concerns about catching the virus, while others may have worries about family or friends It’s important to strike the balance between your organisation being prepared for the significant spread of the virus whilst reassuring people that there is no need to panic.
  • Ensure that line managers are regularly informed about the organisation’s contingency plans and how to discuss the situation with any concerned employees, and where to signpost people to for further advice or support, including employee assistance programmes and/or counselling if they are anxious.
  • Promote the resources you have available to support people’s health and well-being generally, including those through an employee assistance programme. 
  • If large numbers of people are now working from home in line with government advice, provide ongoing support and communications.  Some could start to feel socially isolated and/or anxious about the situation.  Make sure you listen to any concerns, and that they take care of their mental well-being. 

 

Working from home - what are some good tips?

  • Create a routine. Take a relaxing shower, get dressed, have some breakfast while listening to your favourite music and gently plan your day before you start.
  • Take regular breaks and exercise.  Get up from your workstation every 25 minutes.  Stretch, go for a walk, get your body moving.  Set a timer or alarm to remind you.  We all need to be talking to colleagues and others: use Skype or Facetime instead of simple phone calls.  Get out of the house, to get some fresh air and natural light, at least twice a day.  Walk, run or simply tidy a bit of the garden. 
  • Get comfortable.  You perhaps don’t have the ideal workplace or equipment but try and make sure you have a good chair.  Find a good space to work, away from the main living area if possible, but not a bedroom.  Remember you are at work.
  • Remember to eat regularly.  Avoid salty and sugary snacks or chocolate.  Nine times out of ten it is dehydration that triggers these cravings, so have a glass of water next to you instead.  Why not plan your meals for the week, so you can look forward to the chicken dish you have ready in the fridge?  Switch of for an hour, watch the next episode of your box set: get away from that laptop.
  • Minimise distractions.  We all work best when we’re focused on one thing.  Move your personal phone out of the way.  Try to work away from anything that could distract you: the TV, your pets and yes, your kids.