Coronavirus: Employer's resource centre
COVID-19: RETURN TO WORK TOOLKIT
Our Safety, HR and Employment Law teams have produced a RETURN TO WORK TOOLKIT containing all of the advice and resources you need to plan a return to work, including guidance on home working. This is available free to all Law At Work clients on our Online Client Area. To access the Toolkit, login to the Online Client Area at the top right of the LAW website. You will find the Toolkit 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 firstname.lastname@example.org or call 0141 271 5555.
COVID-19: REDUNDANCY TOOLKIT
Our Employment Law and HR teams have produced a REDUNDANCY TOOLKIT containing all of the advice and resources you need to plan redundancy processes in the COVID-19 era. This is available free to all Law At Work clients on our Client Area.
To access the Toolkit, login to the Online Client Area at the top right of the LAW website. You will find the Toolkit within the Employment Law & HR section named Redundancy. 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 email@example.com or call 0141 271 5555.
COVID-19: RISK ASSESSMENT TOOLKIT
To comply with their duty of care, all employers must conduct and implement suitable risk assessments as employees return from lockdown.
Is your organisation well placed to create a suitable risk assessment? It must be deemed adequate by your workforce arriving back in the workplace and enforcement authorities, should they receive a complaint. Given the unprecedented nature of coronavirus, copying a template risk assessment will not necessarily keep your workplace safe – let alone satisfy your legal obligations.
Our team of health & safety experts have already helped employers, in all sectors, to develop suitable risk assessments and safe systems of work for employees returning from lockdown.
For employers without access to competent health & safety advice, we have developed a fixed-fee package to ensure you can satisfy legal requirements. The package includes:
- An initial consultation to understand your specific activities, hazards and control measures.
- Support to develop both the risk assessment and a safe system of work.
- Follow up discussion and guidance from the results, so you are comfortable with the proposed action plan and how best to share training information with your employees thereby ensuring a safe return to work.
COVID-19: EMPLOYER GUIDANCE ON LAW AT WORK TV, AND LAW AT WORK RADIO
For bite-sized interviews with our experts in employment law, HR and health & safety, subscribe to our PODCAST SERIES Law At Work Radio. Interviews include Matt Ramsey, one of our ex-HSE inspectors, on returning to work safely; Donald MacKinnon with an introduction to managing redundancies and restructuring as a result of coronavirus; on individual consultation and redundancy pools; selection criteria and avoiding claims for unfair selection and discrimination; alternative jobs and bumping; and, most recently, collective consultation.
COVID-19: RETURN TO WORK CHECKLIST
STEP 1: PREPARE
☐ Carry out risk health and safety risk assessments, paying particular attention to those who are vulnerable.
☐ Decide what information you need from employees about return to work challenges (i.e. health issues and childcare or other caring responsibilities).
☐ Decide which employees should return to the workplace and whether any can continue to work from home or can remain on furlough leave or other leave.
☐ Consider what you need to do to make your building safe to re-open such as flushing water systems, arranging statutory inspections/ examination of plant/ equipment and testing fire alarms.
☐ Evaluate infection control measures including cleaning schedules, provision of washing facilities and / or hand gel, notices about how to prevent spread of infection and employee health screening.
☐ Consider what social distancing measures can be introduced, including home working, physical modifications to the workplace or staggering working patterns or shift times.
☐ Consider whether personal protective equipment (PPE) is required and how it will be sourced.
☐ Consider whether any changes to contracts or policies are required (e.g. those affecting working patterns, health and safety procedures, absence / sick pay, holiday arrangements or data protection).
☐ Take advice on legal risks arising in relation to particular employees.
STEP 2: COMMUNICATE
☐ Write to employees confirming return to work arrangements, detailing what steps you’re taking to protect health and safety in the workplace and what procedures you expect them to follow on return to work.
☐ Have discussions with any employees who have difficulty in returning and confirm what arrangements will be put in place for them.
☐ Write to employee with any employees who are not returning to the workplace to confirm arrangements (e.g. working from home, continued furlough, unpaid leave etc.)
☐ Ensure any changes to terms and conditions are agreed with employees.
☐ Communicate any changes to policies, including any arrangements concerning planned and unplanned absences for the duration of the outbreak.
STEP 3: REVIEW
☐ Review working arrangements in practice and make any necessary adjustments to ensure that health and safety remains protected.
☐ Prepare for reimplementation of restrictions by maintaining a shut down contingency plan.
COVID-19: REDUNDANCY CHECKLIST
The Government has announced that their furlough scheme will remain open until the end of October. If you are proposing a restructure or cost saving exercise which may entail redundancies, you should ensure that you have robust business reasons as to why the process has to be undertaken at this time.
Once you are confident that you have a good business case, there are a number of factors that must be taken into consideration before you can commence a redundancy process.
1: You will need to ensure that the situation falls within the definition of redundancy, which covers three different scenarios:
☐ A business closure;
☐ Closure of a particular workplace; and
☐ A reduced need for employees carrying out particular work.
2: Check if you have a redundancy procedure in place and ensure you follow that making appropriate adaptations to allow for social distancing.
3: Careful consideration has to be given to the roles that have been selected and to whether employees should be pooled and scored against each other. Employees absent from work whether on long term sick, family friendly leave or furlough should also be considered.
4: A business case document should be drafted to help plan the process. It does not need to be long, but should detail:
☐ The reasons for the redundancies;
☐ Which part of the business will be affected; and
☐ The anticipated impact on the business, including numbers involved and timescales.
5: The key to getting the process right is consultation. Where more than 20 redundancies are proposed at one establishment over a period of 90 days, collective consultation rules will apply. These require employers to consult with employee or union representatives. Redundancies cannot take effect until 30 or 45 days after consultation begins (depending on the number of employees at risk). A failure to consult could mean that employees are awarded a “protective award”, i.e. a payment of up to 90 days’ gross pay per employee. Where collective consultation rules don’t apply, employers should still ensure that fair processes are followed to avoid the risk of unfair dismissal claims.
6: You are obliged to consider ways of avoiding the redundancy or reducing its impact. In particular, you should consider whether any alternative roles exist which could be offered to at risk employees.
7: Consider the financial liability of redundancy payments, including any other payments you will have to make such as notice pay and payment in lieu of notice. You may also want to consider offering enhanced redundancy pay, and whether this will be subject to employees entering into a settlement agreement.
8: You should ensure that managers and any employee representatives (if required) carrying out the consultation process have sufficient support at what can be a difficult time. Consider whether you need to train managers and employee representatives to help the process run as smoothly as possible.
For more guidance on the management of redundancies and restructuring, head here.
COVID-19: HOW ELSE CAN LAW HELP UK EMPLOYERS WITH RETURNING TO WORK, RESTRUCTURES AND REDUNDANCY PROCESSES?
Our Health & Safety consultants can offer ADVICE AND GUIDANCE on risk assessments, social distancing and PPE for individual workplaces. We can also carry out risk assessments for you. Our HR and Employment Law teams can offer ADVICE AND GUIDANCE on managing the return to work process. Our HR Consultancy team can also assist with a range of HANDS ON HR PROJECTS including longer term planning for redundancies (including collective redundancies) or cost saving changes to terms and conditions.
LAW is part of the Marlowe Group. Our group company partners WCS Group can provide COVID-19 SURFACE SWAB KITS, either on site or by post, which will be lab tested by WCS and results given within 5 days. In addition, our group company partners Marlowe Fire & Security can provide FEVER SCREENING CAMERAS and PEOPLE COUNTING ACCESS CAMERAS.
Our group company partners Managed Occupational Health can also provide a full range of OCCUPATIONAL HEALTH SERVICES, including specific advice and guidance on managing vulnerable employees. For more information click below to chat to one of our team or visit the Managed Occupational Health website.
LAW can also offer a range of TRAINING SERVICES to upskill managers on managing a return to work. We will be running an online MENTAL HEALTH WEBINAR focussing on some of the particular challenges arising during the outbreak.
For further details of any of our services, click here to contact us.
COVID-19 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, persistent cough or loss of taste / smell, 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.
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.
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, a new continuous cough or a loss in taste / smell, then all individuals in that household should stay isolated together for 14 days.
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. They cannot be furloughed whilst in receipt of SSP. However, they can be furloughed when absence comes to an end. Employers and employees can agree that sickness / isolation absence will come to an end early to allow the employee to be furloughed. Please see our Job Retention Scheme Q&A for more details.
SSP will be available from day one of absence if the employee is unable to work. If the employee is well enough to work from home, they should do so and be paid as normal. Whilst there is no obligation to pay contractual sick pay to those who are self-isolating, the CIPD recommends that employers who 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.
Employees with the following health conditions were previously advised to stay at home and “shield” from the virus.
- Solid organ transplant recipients;
- People with specific cancers;
- People with severe respiratory conditions including all cystic fibrosis, severe asthma and severe COPD;
- People with rare diseases and inborn errors of metabolism that significantly increase the risk of infections (such as SCID, homozygous sickle cell);
- People on immunosuppression therapies sufficient to significantly increase risk of infection; and
- 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.
Shielding guidance has now been paused across the UK, meaning those who have the above conditions may return to work.
Those who were shielding are currently permitted to attend work. However, 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.
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.
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. Shielding restrictions have now been paused across the UK.
Notwithstanding the pause in shielding guidance, employers still have a general duty to protect the health and safetly of pregnant women at work. Employers will therefore need to consider what, if anything, can be done to mitigate against the risks posed to pregnant employees e.g. considering whether the employee can work from home.
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.
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.
The Foreign & Commonwealth Office (FCO) currently advises against all non-essential travel worldwide. However, the Government maintains a list of countries in which circulation of the virus is considered to be at low levels, known as the travel corridor list. Returners from countries which ARE on the list do not require to self isolate on return.
Employees who travel to a country which is NOT on the travel corridor list must stay at home for 14 days after their return. These employees are not entitled to SSP during their quarantine, unless they show symptoms of the virus and are actually ill. If the employee can work from home during their quarantine, they should be permitted to do so. Otherwise, employees should be advised to either book sufficient leave to cover the quarantine period or request a period of unpaid leave. An employer is not required to agree to either request if it is not operationally feasible for it to do so. If employees do not have advance permission to be absent from work during quarantine, the employer could treat this as a disciplinary matter (depending on the circumstances).
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)
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. Packages of support providing similar protections to those offered to employees under the Job Retention Scheme and Job Support Scheme are available. Details can be found on the Government’s website.
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 10 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.
On Friday 9th October the Chancellor announced that the Job Support Scheme will provide more focussed support to certain businesses when it comes into effect on 1st November. The Government will pay two thirds of the normal wages of employees if they are not at work for seven or more consecutive days (subject to a cap of £2,100 per month). Employers will not be asked to contribute towards wages, but will have to pay NI and pension contributions. This element of the scheme will be reviewed after three months.
What is the Job Support Scheme?
The Job Support Scheme will replace the Job Retention Scheme (furlough scheme) when it comes to an end on 31stOctober. Unlike the furlough scheme, which was designed to protect wages and jobs while employees had to stay at home, the new scheme aims to keep employees at work while recognising that continuing restrictions may limit working hours. It essentially allows employers to place employees on a form of short time working with the government and employer meeting some of the cost of lost wages. It will come into effect from November 2020 for a six month period until the end of April 2021.
At this stage only headline details about the scheme have been released. Further guidance is expected in the coming weeks which will set out more detail.
Which employers can claim?
The scheme will be open to companies that have a UK bank account and UK PAYE scheme. All small and medium employers will qualify, but large employers will only qualify if they can demonstrate that their turnover has been adversely affected by the pandemic. The Government does not expect large employers who are in a position to make capital distributions such as dividend payments or share buybacks to access the scheme. At this stage, no detail has been given as to how small, medium and large companies will be defined, nor how larger companies should supply evidence of adverse turnover.
Employers can access the new scheme regardless of whether they previously used the furlough scheme. Employers who did use the furlough scheme and expect to apply for Job Retention Bonuses in respect of employees retained until January 2021 can also access the new scheme at the same time.
Which employees are covered?
No detail has yet been given about the categories of staff member who will be covered (e.g. workers, employees, agency workers, flexible or zero-hours contract workers, apprentices, office holders, company directors etc).
In order to be eligible, employees must have been on the employer’s PAYE payroll on or before 23rd September 2020. This means a Real Time Information (RTI) submission must have been made in respect of the employee on or before 23 September 2020.
Employees must work a minimum of one third (33%) of their normal working hours. This threshold may be increased at the end of January 2021. Employees will be able to rotate on and off the scheme and do not have to be working the same pattern each month. However, each short-time working arrangement must cover a minimum period of seven days. Employees cannot be made redundant or be put on notice of termination for redundancy whilst on the scheme (in contrast to the furlough scheme).
How do payments to staff work?
Employees must be paid as usual for whatever hours they work (which must be a minimum of 33% of normal hours). For every hour not worked by the employee, the employee will receive up to two thirds (66%) of their normal pay. The remainder is unpaid. For every hour that is not worked, one third is paid by the Government (capped at £697.92 per month), one third by the employer (uncapped) and one third is unpaid.
For example, an employee who works 5 days per week could agree to work 2 days, with the remaining 3 days being unworked. Of those days, 1 will be paid by the Government (subject to the cap), 1 will be paid by the employer and 1 will be unpaid. The result is that the employee will actually work for 2 days but receive normal pay for 4 out of 5 of their normal working days. However, the employer will pay for 3 of these days, only 2 of which will be worked.
“Usual wages” calculations will follow a similar methodology as for the Coronavirus Job Retention Scheme. Employees who have previously been furloughed, will have their underlying usual pay and/or hours used to calculate usual wages, not the amount they were paid whilst on furlough.
The employer must pay both their and the Government’s contribution to wages and make a claim for the Government’s share. The employer should continue to pay class 1 employer national insurance contributions and pension contributions on pay. These will not be covered by the scheme.
How do I implement the scheme?
Employers need to consider the contractual arrangements between the organisation and staff members to determine whether there are any contractual risks in implementing the Job Support Scheme. Employers should discuss the scheme with their staff and must make any changes to the employment contract by agreement. Employees should be notified of the change in writing.
What is the claims process?
Employers will make claims through an online portal which will be available from December 2020. Claims will be paid on a monthly basis, in arrears, once a pay period has passed and the payment has been made to the employee and reported to HMRC via an RTI submission.
Grants may be withheld or need to be repaid if claims are found to be fraudulent or based on incorrect information.
Our Q&As below cover all aspects of the Scheme and have been updated throughout to reflect the latest guidance. However, this section gives a quick overview of the most significant recent changes announced on 29th May 2020.
- Flexible furlough: from 1st July employers have been able to operate “flexible furlough”, meaning that employees can work part time and be furloughed for the time they are not working. For further detail see our Q&A on “How does flexible furlough work?” below.
- Closure of scheme to new entrants: from 1st July only those who have previously been furloughed for a minimum of 3 weeks under the old rules are covered by the Scheme. For further detail see our Q&A on “How does flexible furlough work?” below.
- A cap on the number of staff members who can be put on Furlough Leave: from 1st July, you cannot furlough more staff members than the highest number of staff that you have previously furloughed in any single claim period up to 30 June. For example if an employer furloughed 20 staff in April, 30 in May and 25 in June, then from 1st July a maximum of 30 staff members (this can be from any of the previously furloughed staff) ) can be put on furlough leave at any given time. It should be noted that there is a specific exception for staff returning from statutory leave (see below) who don’t count towards this maximum number, so for that employer in July, if two employees have returned from maternity leave having not been on furlough, the employer can furlough (30 + 2 returnees) from maternity leave.
- Employer contributions: from August, employers will have to contribute to staff pay as the Scheme winds down. In August, this will involve payment of NI and pension, then 10% of pay in September, and finally 20% of pay in October. For further detail see our Q&A on “What staffing costs are covered by the Scheme?” below.
The Chancellor announced on Friday 20th March 2020 that a new “Coronavirus Job Retention Scheme” would be created. The Government’s website contains various guidance pages giving details about how the Scheme works in practice. The guidance is accompanied by a Treasury Direction to HMRC published on 15th April 2020 and updated on 22nd May. The portal to access the Scheme opened on 20th April 2020.
The scheme is designed to be used by employers who cannot maintain their current workforce because their operations have been severely affected by the coronavirus outbreak. All employers are eligible to claim under the scheme and the Government recognises different businesses will face different impacts from coronavirus.
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.
“Furlough leave” is not a term which previously had a legal meaning within employment law nor did 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”) covers staff who remain under contract and on payroll but are not working because of circumstances arising as a result of the coronavirus outbreak.
The Scheme is open to any entity which has a UK bank account, has enrolled for PAYE online and has a PAYE payroll operational on or before 19th March 2020. Employees of companies in administration are 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 covers 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.
The Scheme will cover any person paid through PAYE, including:
- agency workers (including those employed by umbrella companies);
- flexible or zero-hours contract workers;
fixed term contract workers (provided they last for the period of furlough, including if they are extended for this purpose);
- employees of individual employers (such as nannies);
- company office holders;
- company directors; and
- salaried members of limited liability partnerships;
There is no restriction depending on whether someone works full or part time. There is also no bar on nationality, so foreign nationals may be furloughed, including those on visas which state that the holder has “no recourse to public funds”.
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 19th March 2020 and the employer must have made an RTI submission notifying HMRC of payment in respect of staff members on or before 19th March 2020. Anyone hired after this date will not be covered, although there is an exception for those whose employment terminated after 28th February 2020 and who are subsequently rehired as a result of the Scheme being announced.
The Scheme does not cover the self-employed. Details of support for the self-employed can be found on the Government’s website.
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. The original dismissal does not have to be by reason of redundancy.
However, if a staff member has had multiple employers over the past year, has only worked for one of them at any one time, and is being furloughed by their current employer, their former employer/s should not re-employ them, put them on furlough and claim for their wages through the Scheme.
Staff members who were placed on unpaid leave as a result of coronavirus after 28th February 2020 can be furloughed. Staff who were on unpaid leave before this date can also be furloughed, but not until after the date on which it was agreed they would return from unpaid leave. If no date was agreed but the period of unpaid leave was to cover a specific event or set of circumstances, furlough cannot begin until that event has ended or the circumstances requiring unpaid leave are resolved.
Staff who are sick or self isolating in line with Government guidance are entitled to a minimum of Statutory Sick Pay from day one of their absence and cannot be switched to furlough leave whilst receiving SSP. However, an employer can agree with their staff member that their sickness or isolation absence will come to an end early and they can then be switched to furlough leave. They will no longer be eligible for SSP in these circumstances.
The Scheme is not intended for short-term absences from work due to sickness, but it can be used in circumstances where an employee is off on long term sick leave.
If an employer is eligible to claim an SSP rebate for an employee (i.e. support to cover the first 14 days of SSP) they will still be entitled to do so, but only up to the point the employee is furloughed.
Claims for full or part time employees returning from sick leave should be calculated against their salary, before tax, not the pay they received whilst on leave. Claims for those on variable pay, returning from statutory leave should be calculated using either the:
- same month’s earning from the previous year; or
- average monthly earnings for the 2019-2020 tax year.
Shielding guidance has now been paused across the UK. However, those who were previously advised to shield are still covered by the scheme.
The overarching test for access to the scheme still applies. This would apply where the employer’s operations have been “severely impacted”, they “cannot maintain” their workforce, they are “unable to operate” or “have no work” for the employee to do.
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?
Furloughed employees who become ill must be paid at least Statutory Sick Pay. It is up to employers to decide whether to move these employees onto Statutory Sick Pay or to keep them on furlough, at their furloughed rate.
If a furloughed employee who becomes sick is moved onto SSP, employers can no longer claim for the furloughed salary. Employers are required to pay SSP themselves, although may qualify for a rebate for up to 2 weeks of SSP.
Yes, these staff members can be furloughed. However, the overarching test for access to the scheme still applies. This would apply where the employer’s operations have been “severely impacted”, they “cannot maintain” their workforce, they are “unable to operate” or “have no work” for the employee to do.
What should I do about staff members on maternity (or other family leave) or who are shortly about to take leave or return from 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, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay, Statutory Parental Bereavement Pay or Maternity Allowance, the normal rules apply and they should be permitted to take their usual statutory entitlements and statutory leave. Any statutory pay should be calculated on the basis of normal pay as if the staff member were not on furlough. Employees who return from statutory leave after 10th June 2020 can be put on furlough leave (if they agree) even if they haven’t previously been on furlough leave, and they won’t count towards the maximum number of employees who can be put on furlough leave.
If an employer offers enhanced (earnings related) contractual pay in addition to any statutory pay, this is included as wage costs that can be reclaimed through the Scheme.
Claims to HMRC for full or part time employees who are furloughed following return from statutory leave after 28 February 2020 should be calculated against their salary, before tax, not the pay they received whilst on statutory leave. Claims for those on variable pay who are furloughed on return from statutory leave should be calculated using either the:
- same month’s earning from the previous year; or
- average monthly earnings for the 2019-2020 tax year.
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.
Yes. The transferee (i.e. the new employer) is eligible to claim under the Scheme in respect of the employees of the transferor (i.e. the old employer) if the employees transferred after 19th March 2020, provided the transferee was operating PAYE as of 19th March 2020 under which payment of earnings was made in the 2019/20 tax year.
Yes. Where a group of companies have multiple PAYE schemes and there is a transfer of all employees from these schemes into a new consolidated PAYE scheme after 19th March 2020, staff will be eligible to be furloughed under the Scheme.
Originally the basis of the Scheme was that staff must not be carrying out work for the employer during the furlough leave period, i.e. they could undertake work for, or on behalf of, the organisation. This extended to any linked or associated organisation. However, from 1st July 2020 employers have been able to operate “flexible furlough” meaning staff members may work part time and be furloughed on the days they are not at work. For more detail see “How does flexible furlough work?”.
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 (or a linked / associated organisation). 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. It should be noted that furlough pay counts towards the NLW/NMW.
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. 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.
Statutory directors who are furloughed may undertake limited duties without breaching the “no work” rule. These are whether they are required to file company accounts or provide administrative information relating to the company, including processing furlough pay and claiming it back.
Yes, staff members who are union or non-union representatives may undertake duties and activities for the purpose of individual or collective representation of employees or other workers whilst on furlough. However, in doing so they must not provide services to or generate revenue for, or on behalf of the organisation or a linked or associated organisation.
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.
Up to 30th June 2020, the minimum period during which a staff member could be furloughed was three weeks. From 1st July 2020, employers have been permitted to bring staff back to work on a flexible basis, including part days or for any pattern of work, while still being able to access the Scheme. There are, however, restrictions on the periods for which claims can be made.
“Flexible furlough” was introduced on 1st July, allowing employees to work part time and be furloughed on days they are not working. Any employee who was furloughed for a least three weeks prior to 30th can be flexibly furloughed, giving employers further options to arrange rotation patterns to meet operational demand. There is no minimum period of furlough under the flexible furlough rules, but the claim periods for the CJRS grant will be for a minimum of one week.
The Government has deliberately not set a definition of what is meant by “part time hours” in order to give employers flexibility over how they operate part time working. For example, an employee who normally works 5 days per week could return to work for 2 days and be furloughed for 3 days. The employer would pay the employee for 2 days’ work and could use a grant from the Scheme to cover the remaining 3 days. Alternatively, an employee could work the same number of days that they normally work, but on 50% of the hours, and cover the reduced pay for 50% of hours with furlough leave and pay.
Employees must be paid normal pay whilst working. Employers will have to report the hours worked as well as the employee’s usual working hours. The guidance details how “normal” hours should be calculated for those who work variable hours and there are a number of worked examples available.
For a flexible furlough claim, the employer will need to have information about the employee’s normal contracted hours in the last pay period on or before 19th March 2020 and the employee’s salary. This information is required in order to be able to use the formula to calculate the value of the claim.
Flexible furlough arrangements will have to be agreed with staff members, in the same way that staff members currently have to agree to be placed on furlough leave. Style flexible furlough letters are available on the LAW Client Area for all clients.
Until 31st July 2020, the Scheme provided a grant to cover the lower of 80% of a staff member’s regular wage or £2,500 per month, together with the associated employer National Insurance contributions and minimum automatic enrolment employer pension contributions on the subsidised wage. However, from August, payments from the scheme have been tapered and employers will have to contribute to costs as follows:
- In August 2020, the Scheme covered 80% of pay (subject to the cap). However, NI and employer pension contributions were not be covered. For the average claim, this accounts for around 5% of employment costs.
- In September 2020, the Scheme covered 70% of pay (subject to a pro-rata cap) and employers were required to contribute 10%. NI and employer pension contributions will continue not to be covered.
- In October 2020, the Scheme will cover 60% of pay (subject to a pro-rata cap) and employers will be required to contribute 20%. NI and employer pension contributions will continue not to be covered. The Scheme will then end on 31st October 2020.
Employer National Insurance Contributions and automatic enrolment contribution on any additional top-up salary will not be funded through the 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 (£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.
Detailed guidance on the calculation of pay can be found on the Government’s website. The first step is to work out the “reference salary” for staff. For full or part time staff members on a salary the reference salary is their last pay on or before 19th March 2020. For staff members whose pay varies, working out the reference salary is slightly more complex. If the staff member has been employed for 12 months or more, the reference salary should be calculated as the higher of:
- the same month’s earning from the previous year; or
- average monthly earnings for the 2019-2020 tax year
If the staff member has been employed for less than 12 months, the reference salary should be calculated on average monthly earnings since they started work until the date they are furloughed. If the staff member has been employed for less than a month, you should work out a pro-rata for their earnings so far.
The reference salary should include any regular payments you are obliged to pay your staff members. This includes regular wages, non-discretionary overtime, non-discretionary fees, non-discretionary commission payments and piece rate payments. Variable payments such as contractual shift premiums, allowances and compulsory overtime payments should be covered.
However, discretionary bonus (including tips), commission payments, non-cash payments, non-monetary benefits in kind and benefits provided through salary sacrifice schemes (including pension contributions) that reduce a staff member’s taxable pay will not be covered.
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 and continues during the tapering period between August and October 2020, with employers required to make up salary to 80%. 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, if contributing to a defined contributions scheme, could consider reducing contributions. Usually, employers seeking to reduce contributions would face a 60 day minimum consultation requirement under the Pension Consultations Regulations. If breached without reasonable excuse, the Regulator has the power to impose a financial penalty on the employer. However, on 9th April the Regulator confirmed that it will not take action against employers who are unable to consult for the full 60 days in these circumstances.
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.
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.
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.
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. This is an agreement in respect of periods of furlough leave only. Annual leave should be paid at 100% of pay.
Staff members remain under contract during furlough leave, meaning that they should not be dismissed without following usual processes and considerations.
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).
Yes, an employer can 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 and the Scheme grant cannot be used for redundancy payments.
Holidays can be taken during furlough and that they should be paid at the normal rate of pay, i.e. not restricted to 80%. If an employee usually works bank holidays then the employer can agree that this is included in the grant payment. If the employee usually takes the bank holiday as leave then the employer would either have to top up their usual holiday pay or give the employee a day of holiday in lieu.
Employers need to consider the contractual arrangements between the organisation and staff members to determine whether there are any contractual risks in implementing furlough leave. Employers should discuss furlough with their staff and make any changes to the employment contract by agreement. The fact that staff members are on (or to be placed on) furlough should be confirmed in writing, but staff members do not have to provide a written response. A record of this communication must be kept for five years. Evidence of collective agreement reached between an employer and a trade union is also acceptable in lieu of evidence of individual agreement.
The Government’s guidance states that claims may start 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.
The Government’s guidance states that claims may start 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.
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, the Government’s guidance currently states that agreement is required to implement furlough.
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. Please note that the consultation period for over 100 staff is 90 days in Northern Ireland.
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.
Although the Government’s guidance currently states that express consent is not required, it does indicate that a written record of agreement is required. The best method of demonstrating consent is to 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, consent can also be given verbally, with a follow up letter written to confirm the arrangements.
Yes, for LAW clients, we have produced style letters which can be used to seek agreement to furlough leave or confirm agreement following a discussion. 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 firstname.lastname@example.org or call 0141 271 5555.
The Coronavirus Job Retention Scheme Portal opened on 20th April 2020 and the first payments were made on 30th April. If the employer has fewer than 100 furloughed staff, they will need to enter details of each employee claimed for directly into the portal. If the employer has 100 or more furloughed staff, they will be asked to upload an xls, xlsx, csv or ods file with the required information. The employer should retain all records and calculations in respect of claims.
If the employer uses an agent authorised to act for PAYE purposes, they will be able to make a claim on the employer’s behalf. If the employer uses a file only agent (who files the RTI return but doesn’t act on any other matters) they won’t be authorised to make a claim and the employer will need to make the claim themself. The employer should tell their agent which bank account they would like the grant to be paid into.
The onus is on employers to calculate the amount claimed. Employers should make their claim using the amounts in their payroll, either shortly before or during running payroll. Claims can be backdated until 1st March 2020 where employees have already been furloughed.
If appropriate, worker’s wages should be reduced to 80% of their salary within payroll before they are paid. This adjustment will not be made by HMRC. 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.
Records relating to the new flexible furlough leave and pay have to be kept for 6 years.
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 where there is:
- 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; or
- a 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. The JRS runs until 31st October, after which it will be replaced by the Job Support Scheme, which runs until 30th April 2021. Further details can be found in our Coronavirus Job Retention Scheme Q&As and Job Support Scheme Q&As.
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
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.
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.
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.
The position across the UK is that employees should work from home if they are able to do so. All other employees of businesses that are permitted to open should attend work.
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, high temperature and loss of taste / smell. 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.
Schools and nurseries are currently open, although may be subject to short notice closures due to local outbreaks. 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.
A number of other options are available to support working parents. First, parents 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 in order to allow the employee to make longer term arrangements for care. It is important to note than an employee cannot be penalised or dismissed as a result of exercising this statutory right so an employer generally 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).
Second, parents with at least a year’s service have the right to request up to four weeks’ unpaid parental leave per year in respect of a child under the age of 18. A request for parental leave cannot be rejected altogether, although it can be delayed if the dates sought are not suitable for the business. Note that parents must give 21 days’ notice of intention to take parental leave.
Finally, employers and employees can agree a period of flexible working, agree that annual leave will be taken or agree a period of unpaid 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.
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.
Volunteers will be able to make an application to a UK-wide compensation fund, but EVL does not cost the employer any money directly.
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
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.
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.
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).
This issue was previously the subject of substantial debate, and both the Government’s official Job Retention Scheme guidance and the Treasury Direction remain silent on whether holidays can be taken during furlough. However, separate guidance on the calculation of pay under the Scheme published on 17th April 2020 confirms that holidays can be taken during furlough and that they should be paid at the normal rate of pay, i.e. not restricted to 80%. If an employee usually works bank holidays then the employer can agree that this is included in the grant payment. If the employee usually takes the bank holiday as leave then the employer would either have to top up their usual holiday pay or give the employee a day of holiday in lieu.
The Government’s guidance states that it will keep its policy on holiday pay during furlough under review.
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”.
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.
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.
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.
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
What H&S responsibilities are on employers for the workplace, when asking employees to return to work?
Employers will need to consider what is required to re-occupy a building, especially where it has been closed. A building pre-occupation audit should consideration of security issues, managing entry/ exit to a building, recommissioning of plant and equipment and examination and inspection of equipment, such as lifts, pressure systems, gas & electricity services and fire alarm systems.
A risk assessment will need to be completed, setting out the controls required to allow employees to return to work whilst maintaining good hygiene practices and social distancing.
We understand the business pressures, so our Safety team have brought together an audit and 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 email@example.com or call 0141 271 5555.
Which people are in the high-risk groups and how do I manage them?
Risk assessments should take into consideration those who are at higher risk of developing complications should they contract coronavirus. These are:
- Individuals aged over 70;
- 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; and
- Women who are pregnant (although note that employers have a separate pre-existing duty to carry out risk assessments for pregnant women in any event. A template PREGNANCY RISK ASSESSMENT can be found in our Return to Work Toolkit).
Government advice is that these persons should not return to work at this time. They may still be self-isolating for the 12-week period specified by the UK Government in March.
Employers will need to consider employees who have family members within one or more of these groups. A specific risk assessment should be completed to assess the vulnerability of employees, remembering the requirements for confidentiality of such information and GDPR.
What is ‘Shielding’ and who needs to do this?
A further category of workers is at very high risk of experiencing complications, and they will have been advised to “shield” from the virus. These are:
- Solid organ transplant recipients;
- People with specific cancers;
- People with severe respiratory conditions including all cystic fibrosis, severe asthma and severe COPD;
- People with rare diseases and inborn errors of metabolism that significantly increase the risk of infections (such as SCID, homozygous sickle cell);
- People on immunosuppression therapies sufficient to significantly increase risk of infection; and
- Women who are pregnant with significant heart disease, congenital or acquired.
Those shielding may not wish to return to the workplace, and so their absence will need to be managed appropriately. Those shielding are not legally prevented from working, so employers may need to consider the needs of this group more carefully should they wish to attend work and adjust risk assessments appropriately. For more information on managing absence, including shielding employees, see our RETURN TO WORK HR GUIDE which can be found in our Return to Work Toolkit.
How do I know that my current control measures are enough?
The UK Government have issued guidance for a number of industry sectors. Whilst at this time they are applicable to England only, they provide good practice information that can be used by businesses in Scotland, Wales and Northern Ireland to assist and inform return to work planning.
- Construction and Outdoor Work
- Factories, Plants and Warehouses
- Labs and Research Facilities
- Offices and Contact Centres
- Other People’s Homes (supporting and/or working in)
- Restaurants Offering Take Away or Delivery
- Shops and Branches
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
The UK Government have produced a poster for businesses to display when they have re-opened with all required controls in place.
My business is in England but some of our employees live in Scotland. Can I ask the to return to work?
Policy for the management of the Covid-19 pandemic is devolved to the UK regions, so there are differences in advice provided by the various Governments and Assemblies. The Scottish Government and Welsh and Northern Ireland Assemblies have not yet significantly relaxed their lockdown arrangements as England has.
By asking employees resident in Scotland, Wales or Northern Ireland to return to work, you could be causing them to break the law, so should keep them on furlough or your current arrangements at this time.
Should I issue my staff with masks?
- The Westminster (on behalf of England) and Scottish Governments have issued guidance that, where possible, face coverings should be used in indoor public spaces, such as small shops or on public transport.
- Employers will need to consider whether they provide face coverings for staff using public transport to travel to/ from work.
- Disposable face masks should be removed before entering the workplace and disposed of safely, e.g. in a suitable bag before being placed in a waste bin.
- The best way to reduce the risk of infection remains regular hand washing and avoiding direct or close contact (2 metres) with any person.
Do we still need policies and procedures to manage this virus?
You will continue to need a set of procedures to document the actions you will take for the various scenarios that may still 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.
Can employees bring their 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:
Further guidance on business continuity is available from:
For specific business continuity assistance contact the Law At Work Health & Safety team on HandS@lawatwork.co.uk
EMPLOYEE WELLBEING DURING COVID-19
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.