Coronavirus Advice For Employers Featured

Coronavirus: Information for Employees (1 April 2020)

Coronavirus Information for Employees, workers and the self employed

Detailed Coronavirus information for employees, freelancers and the self-employed about homeworking, sick pay, self-isolation, furlough leave, and more.


Current Government Resources can be found here:

For information on the circumstances in which individuals should self-isolate see the following sources:

For guidance on homeworking during the COVID-19 pandemic, see: Acas, Working from home.

Guidance has also been issued on the steps that vulnerable people should take to minimise their risk of infection:

The current guidance (https://www.gov.uk/coronavirus) is that you should leave home to work only where you cannot work from home.

What pay are you entitled to if your employer sends you home?

Where you are able to continue to work from home then, subject to any contractual provision to the contrary, your employer should pay you your normal rate of pay.

Statutory sick pay (SSP) and COVID-19

In order to qualify for Statutory sick pay (SSP), an employee must generally be absent from work due to incapacity but given the pandemic, certain absence is ‘deemed’ incapacity with effect from 13th March 2020. This is where an employee:

  • Is self-isolating to prevent infection or contamination;
  • By reason of that isolation is unable to work.

The same could apply to mandatory isolation, for example returning from a high-risk country.

Employer suspends for reason not falling within government self-isolation advice

Where your employer suspends you on health and safety grounds, because of a possible risk of infection which does not fall within the government’s self-isolation advice, it is likely that you have the right to continue to receive full pay on the basis of the employer’s implied duty to pay wages.

Where you are willing and able to perform work in accordance with the contract, there is an implied term that the employer has an obligation to pay wages, unless there is a contractual right not to do so. If your employer does not pay you in these circumstances, then you may have a claim for unlawful deduction from wages, or a claim for constructive unfair dismissal, but you should always take advice before resigning from your employment, particularly in the current job market.

Employer suspends for reason falling within government self-isolation advice

Where an employer is considering suspension because an employee falls within the circumstances in which public health advice is to self-isolate then SSP may be payable, under deemed incapacity provisions.

What should an employer do if you are living with someone who is suspected to have, or has been diagnosed with, COVID-19?

If a member of your household is suspected of having, or has been diagnosed with COVID-19, you will need to self-isolate for 14 days in accordance with the Stay at home guidance.

You will be deemed incapable for work under the new deemed incapacity rules for SSP. You will therefore be entitled to SSP, or any contractual sick pay which may apply in this scenario.

What happens if I refuse to attend work due to fears about coronavirus?

If you can work from home, this may well resolve the issue. If not, the employer would need to consider the current public health advice, the specific reason that you are concerned about, and whether it would be discriminatory to refuse home working. Alternatively, the employer could take disciplinary action, or withhold pay in light of your refusal.

If there is no discrimination angle, and the public health advice is such that the you could reasonably be asked to continue to attend work, then it is possible that your employer could investigate you for misconduct in terms of your refusal to follow a reasonable management instruction, and unauthorised absence.

If the absence is unauthorised, then you would likely not be entitled to pay as are are not willing to attend work. Given current guidance however, and unless attending work is absolutely necessary, it is likely that the employer would act without reasonable and proper cause if requiring you to attend work, if at the same time it was not putting measures in place to protect your health and safety and social distancing measures.

Social distancing

Where you fall into one of the categories the government has ‘strongly advised’ to work from home, can your employer require you to come into work if your role cannot be carried out remotely?

On 16th March 2020, the government issued the Social distancing guidance which strongly advises certain categories of vulnerable employees to practice socially distancing measures including working from home and avoiding public transport. Those categories are:

  • Individuals aged over 70.
  • Women who are pregnant.
  • Individuals aged under 70 with an underlying health condition.

On 21st March 2020, the government issued the Shielding guidance which sets out the categories of people the government consider to be extremely vulnerable from COVID-19. These include organ transplant recipients, people with certain cancers, those with severe respiratory conditions and women who are pregnant and have significant heart disease.

The government’s announcement on 23rd March 2020, that all members of the public must stay at home, except in very limited circumstances, means that all employees must be permitted to work from home where possible. If the employer is one which is permitted to continue operating (meaning that employees who cannot carry out their work from home are permitted to commute to work) then an employer should consider their position very carefully before requiring an employee to come into work, if they fall into one of the vulnerable categories identified.

Where an employee falls into one of the categories the government has ‘strongly advised’ to work from home, what are they entitled to be paid, if they remain at home and it is not possible for them to work remotely?

Affected employees are potentially entitled to SSP or contractual sick pay if applicable. However, unlike self-isolation for seven or 14 days, social distancing for vulnerable employees may be required for many months. Very few employees will be able to afford to receive only SSP long-term and some may put pressure on their employer to allow them back to work. The alternative for employers is to continue to pay the employees full pay or place them on furlough leave (see below).

Where the nature of a pregnant employee’s role means that they cannot work from home and there is no suitable alternative work available that they could do from home, the employer should consider suspending the employee on full pay.

Using annual leave

In what circumstances could holiday be used to cover periods of absence?

You may wish to take annual leave as an alternative to scenarios where you would otherwise be on SSP or nil pay. Workers are entitled to take statutory annual leave during sickness absence.

Workers who are not on sick leave can be instructed to take statutory annual leave by their employer, provided that they are given two days’ notice for each day’s leave taken.

Can an employer cancel a worker’s annual leave?

Employers are entitled to require workers not to take statutory annual leave on certain dates; however, where consent has already been given to take the leave, the employer may only require you to cancel annual leave if the contract of employment allows this.

Is a worker who is in self-isolation entitled to reschedule holiday?

Yes – it is likely that if you are subject to self-isolation, you should be entitled to reschedule your annual leave, if you wish to do so.

Employer’s duty of care

What health and safety obligations does an employer have in a pandemic?

Your employer owes you a duty of care in the pandemic and in the special circumstances outlined below.

Pregnancy

Employers have duties to protect the health and safety of new and expectant mothers in the workplace. In summary, the law requires employers:

  • To assess the workplace risks posed to new or expectant mothers or their babies.
  • To alter the employee’s working conditions or hours of work to avoid any significant risk.

As pregnant women have been ‘strongly advised’ to socially isolate, avoid travelling on public transport and work from home, the employer should consider paying normal pay.

At what point should an employer close the workplace?

The Acas guidance advises that if someone with COVID-19 comes into a workplace, the workplace does not necessarily have to close.

Can employers lawfully conduct temperature checks on employees, workers or visitors?

Consent

An employer cannot require you to undergo a medical examination without your consent, but in the circumstances, refusal to do so may amount to a refusal to carry out a reasonable management instruction if the safety and welfare of other staff is paramount.

Potential discrimination issues

If an employer decides to carry out any form of medical testing on employees, workers or visitors during a pandemic, it should ensure that it is applied consistently to all. Testing only certain groups who are perceived to be at a higher risk of having contracted a virus, could potentially lead to discrimination claims.

Can an employer require employees to stay indoors at lunchtime and wear a mask in the office?

Employers have an ongoing health and safety duty to employees, and there are measures that employers could and should be taking to minimise risk.

Guidance on limiting the spread of COVID-19 in the workplace is limited at present to advice on frequent handwashing to staff and customers (and to cleaning and disinfecting objects and surfaces). The WHO guidance: Getting your workplace ready for COVID-19 suggests providing face masks, but does not go so far as to suggest requiring that they be worn.

Amending employees’ contractual sick pay entitlement

Your sick pay entitlement will usually be set out in your contract of employment. If your employer wants to amend this, it will amount to a variation of contract. Your employer cannot normally do this unless it reaches agreement with you. If your employer imposes changes then you may have an unauthorised deduction from wages claim, or a claim for constructive unfair dismissal. Please seek legal advice before taking either of these steps.

Where your contract specifies that your sick pay entitlement is set out in separate sickness absence policy, which may be amended from time to time, it will be much easier for your employer to make the change. The employer should still confirm the change in writing to you.

Homeworking

Is your employer entitled to require you to work from home?

On 23rd March 2020, the government advised that all employees should work from home wherever possible.

Your employer could lawfully ask you to do this under a mobility clause in your contract of employment.

If not, imposing home working would arguably constitute a variation of the contract requiring your consent; however, where you are faced with either being on SSP or nil pay as an alternative, it is sensible to consent to working from home as a way of preserving pay.

Are there any special categories of employees who should be allowed to work from home?

In light the government’s announcement on 23rd March 2020, that the public must remain at home except in limited circumstances (including when their work absolutely cannot be done from home), all employees who can work from home should be permitted to do so.

On 16th March 2020, the government stated that anyone in the following categories were strongly advised to work from home:

  • Individuals aged over 70.
  • Women who are pregnant.
  • Individuals aged under 70 with an underlying health condition.

If your employer is forcing you to attend the workplace in circumstances where you don’t think they should, then please seek legal advice.

Can your employer refuse to allow you to work from home if you will also be looking after children who have been sent home from school or nursery?

In normal circumstances, it would not be appropriate for you to work from home while also providing childcare; however, as the COVID-19 outbreak escalates, employers should take a pragmatic approach.

If you are a keyworker, you may still be able to benefit from childcare. Given that schools and nurseries have closed to children of the parents of non-key workers, the majority of parents in the workplace will face difficulties and therefore employers are encouraged not to place a blanket ban on working from home while also looking after children, since this may preclude a large proportion of the workforce from performing any duties. In these unprecedented circumstances, employers should be prepared to take a more relaxed and flexible approach to homeworking and allow you to work around your childcare responsibilities.

The Acas, Working from home guidance suggests that more flexible homeworking arrangements that could be considered include:

  • Working different hours.
  • Agreeing that you may not be able to work a full day or a full week.
  • Reducing work targets.
  • Being flexible about deadlines where possible.

The same approach may be needed if you are caring for someone else, such as an older relative or someone who is ill.

You may also have the right to time off for a dependent. Time off in these circumstances is unpaid.

Lockdown

What does the government’s announcement on 23rd March 2020 mean?

On 23rd March 2020, the government issued new guidance which requires the public to stay at home, subject to limited exceptions (Cabinet office: Full guidance on staying at home and away from others). Commuting to work is permitted, but only where the work absolutely cannot be done from home.

Does your employer have to continue paying you if it temporarily closes?

Where your employer is not able to continue its business with employees working remotely, the Coronavirus Job retention Scheme will pay your salary up to £2,500 a calendar month, as long as you are kept on the payroll. This is known as furlough leave.

Alternatives may be:

  • Unpaid leave;
  • Lay-off;
  • Short time working.

If your employer imposes these measures without your consent, then you may have a claim for unauthorised deduction from wages or constructive unfair dismissal.

Collective redundancy

If 20 or more redundancies are proposed at one establishment within 90 days, this will trigger collective consultation obligations. Your employer should consult with you for minimum periods of 30 or 45 days depending on how many people the employer is making redundant. If it fails to do this, then you may be entitled to a protective award of up to 90 days’ pay. In the circumstances, your employer may be able to rely upon a special defence, where urgent closure is required, and consultation is not possible.

If the workplace temporarily closes due to insufficient numbers of employees being able to attend work, what pay are you entitled to?

Those who are already being treated as unable to work due to either self-isolation or diagnosis with COVID-19 will remain on sick leave until they are fit to return to work. At that point, they will be treated the same as the employees who were sent home at the point of closure. Appropriate communication should take place to ensure that employees are aware of their position, and any transition from sick leave to another form of leave or lay-off.

Any temporary closure of the business will be treated as the employer’s decision and so, in principle, you will remain entitled to full pay, unless your employer has no contractual requirement to offer work (which may be the case for casual employees).

Your employer will be able to apply to the Coronavirus Job retention Scheme which will pay your salary of up to £2,500 a calendar month, as long as long as you are kept on the payroll.

Other steps your employer may take are:

  • Consulting with you to agree a temporary reduction in pay and benefits for the duration of the crisis. This might be considered reasonable in the circumstances.
  • Your employer may be able to lay you off, if it has the contractual right to take this approach. If the employer does not have the contractual right to lay you off, then it will be a breach of contract giving rise to constructive dismissal or unauthorised deduction from wages. Lay off in these circumstances is where you employer has no work for you to do and can send you home without pay. There are special rules surrounding this area of the law and if in doubt you should take advice about this.
  • Your employer may give you notice to take holiday. Employers are entitled to give notice to workers to take statutory annual leave, provided there is no contrary contractual right.
  • Your employer may seek volunteers to take unpaid leave.
  • Your employer may seek volunteers for voluntary redundancy.

If your employer is considering any of these steps, then please seek legal advice as soon as possible.

Coronavirus Job Retention Scheme (furlough leave)

The introduction of a new Coronavirus Job Retention Scheme (furlough leave) was announced by the government on 20th March 2020. Under the scheme, all UK employers, regardless of size or sector, can claim a grant from HMRC to cover 80% of the wages costs of employees who are not working but kept on the payroll, of up to £2,500 a calendar month for each employee. Your employer can choose to top up the remaining 20% if they wish, but it is not obliged to do so.

The Chancellor announced that the scheme will be backdated to 1st March 2020, be open for at least three months and will be extended if necessary.

The government has not, as yet, published much written guidance on the scheme; however, it has updated the COVID-19: support for businesses guidance and COVID-19: guidance for employees to provide basic details.

Are you covered?

The scheme will apply in respect of all employees on PAYE, including those on zero-hours contracts. This means that it will cover most workers and employees’, but it will not cover the self-employed.

What if I’ve already been given notice of redundancy or placed on unpaid leave before furlough leave was announced?

The government has advised that, once up and running, the scheme will be backdated to 1st March 2020. It would therefore be possible, in theory, for your employer to propose to employees who are still employed but have been given notice of redundancy or placed on unpaid leave, that they be put onto furlough leave instead.

If your employer has already terminated your employment by reason of redundancy (as a result of the pandemic) then it may be incumbent to consider re-engagement and furlough instead, but this obligation, is far from certain at the moment.

If you’re already working reduced hours, can your employer move you onto furlough leave?

Arguably, the scheme does not apply if your employer is managing with employees working less hours and redundancies are not anticipated, but you could ask your employer to place you on furlough leave instead. This could be cheaper than redundancy for your employer, and therefore may be a more attractive proposition.

What if I’m on long term sick leave already?

It is up to your employer to decide whether to designate an employee as furloughed, but at the moment we do know whether the government will impose conditions on entitlement, such as the requirement to be working, rather than on sick leave, at the time that you are designated as furloughed.

When selecting which employees to designate as furloughed however, your employer must not unlawfully discriminate.

Your employer can designate employees as furloughed but should consult with you about this, and also should confirm the position in writing.

Can I request my employer puts me onto furlough leave?

Yes, but your employer does not have to agree.

Will I continue to accrue holiday during furlough leave?

Yes, although your employer could attempt to negotiate a change in contractual terms such that any annual leave over and above statutory leave does not accrue during furlough leave, or it could require you to take annual leave during the furlough period.

How is salary calculated for employees who are on, or have been on sick leave and SSP?

It remains to be seen whether employees who are on sick leave can be put on furlough leave.

If you remain sick at the time your employer is considering furlough leave, then the employer may decide not to put you on furlough leave until your sick leave has come to an end.

An employer who is unable to reclaim SSP, may prefer to agree a change in terms with a sick employee so that they are on furlough leave and their pay can be recovered from HMRC (and it may be sensible to agree to this, as you will be receiving a higher rate of pay than SSP is company sick pay is not paid).

Rights of other types of workers

Are self-employed freelancers entitled to be paid when they are self-isolating?

Self-employed contractors are not currently entitled to SSP, even if their absence is sickness-related. Whether the freelancer is entitled to any contractual payments for shifts missed due to self-isolation, will therefore depend upon the terms of the consultancy agreement relating to payment for non-attendance (if any).

If the freelancer is asymptomatic and therefore in theory able to work, but just cannot attend the workplace, it may be possible for the employer to consider other options such as remote working. This would ensure that the work is completed, and the freelancer does not lose income.

What can I do if a new employer withdraws a job offer?

If you’ve accepted an offer of employment without conditions, there could be a binding contract of employment. This would mean that you’d be entitled to the notice set out in the contract of employment.

If the new employer wants to delay the start date, then this will constitute a change in contractual terms. In this case, the new employer would only be able to make a change to the start date either with your express consent, or, if it has an express contractual right to do so, namely it is written in the contract.

Even if the employer has a contractual right to vary terms, it should still bear in mind the need to exercise this right reasonably and with due notice.

Please note that this document does not constitute legal advice and no reliance can be placed on it. If you need to make decisions about your personal circumstances, please do take formal legal advice, from a specialist employment solicitor.