The coronavirus crisis has changed the way we live and work for the foreseeable future. Businesses have rapidly had to adapt the way they operate and employees have questions and concerns that their employers may not be able to answer. Our employment experts answer common employment law questions for employers below, informed by the latest government policy and any recent changes in legislation. Check the relevant pages on gov.uk for the most up-to-date government advice.
Here we answer your questions:
- What are the new statutory sick pay (SSP) measures brought in by the government?
- What measures are being taken in respect of annual leave?
- What businesses have to close trade from their premises from 26 March 2020?
- How is the government supporting businesses?
- How do I make a claim for wages through the Coronavirus Job Retention Scheme?
- How do I continue to make claims as employees who are flexibly furloughed come back to work?
- How to calculate a claim under the CJRS
- As an alternative to redundancy, can an employer ‘lay-off’ employees for a temporary period unpaid if the employee agrees to it?
- Recruitment and COVID-19
- Should an employee ask for a sick note from their GP?
- What should an employer do if an employee refuses to attend work because they have a disability which may put them at higher risk if they contract COVID-19?
- What should an employer do when an employee suffers from anxiety and refuses to attend work because of the perceived risk of catching COVID-19?
- Do employers have responsibility for an employee’s health and safety when they are working from home?
- What if employees can’t work because they have to look after a dependent?
- Following social distancing advice
- What about travelling for business? Where does an employee and an employer stand then?
- Are we likely to see employers and employees going to court over the issue?
- What general health and safety guidance should businesses follow?
- What can businesses do if faced with a coronavirus outbreak in the office?
- How should businesses deal with the return of a worker who has had the virus?
What are the new statutory sick pay (SSP) measures brought in by the government?
On 12 March 2020, the government produced the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020. This now means that employees, who have contracted the virus or who self-isolate in line with the guidelines from Public Health England (or the devolved authorities), will be entitled to statutory sick pay (SSP) from day one instead of day four. From 6 April, SSP will also increase from £94.25 to £95.85 per week.
However, it is only those employees who are unable to work due to contracting the virus or who self-isolate in line with government guidelines or NHS advice that will be entitled to receive SSP pursuant to the Regulations. An individual is considered to be incapable of work if they are unable to work because they fall within the extremely vulnerable category and have been advised to shield for at least 12 weeks.
From 27 May 2020, the government launched the Test and Trace system, intended to slow the spread of the virus. The NHS will test anyone who has had symptoms to find out if they have the virus, and will then alert others who may have come into close contact with the person who has the virus, notifying them that they will need to self-isolate. As a result of Test and Trace, the government has extended SSP to those people who have been told to self-isolate under this new system.
Those who are instructed by their employer to work from home and who are able to do so should receive their wages as normal. Those employees who have received Employment Support Allowance within 12 weeks of starting or returning to work for you or who are on furlough leave under the coronavirus job retention scheme, do not qualify for SSP.
What measures are being taken in respect of annual leave?
Workers will be allowed to carry over up to four weeks of annual leave into the next two leave years, under The Working Time (Coronavirus) (Amendment) Regulations 2020, if it is not reasonably practicable for workers to take some, or all, of the holiday they are entitled to, due to coronavirus. The remaining 1.6 weeks' statutory leave is not included in this, but can already be carried over for up to a year by agreement between employer and employee. This should assist businesses in protecting workers’ right to paid holiday but also meaning that all staff who are well and not self-isolating can book leave at a later date and attend work when numbers at work may be depleted over the coming weeks and months.
It is possible to take annual leave whilst furloughed under the coronavirus job retention scheme. If annual leave is taken the employer must top up the 80% payment the employee receives to 100% during the annual leave period.
What businesses have to close trade from their premises from 26 March 2020?
As part of the UK’s mast recent lockdown measures, The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 came into force on 26 March 2020 and has meant that any businesses not mentioned in part 3 to Schedule 2 must close (aside from limited ability for those mentioned in part 1 to Schedule 2, such as pubs or restaurants, which cannot open as usual, but may provide takeaway services). If you require more guidance on your business and these regulations, please contact our specialist employment solicitors.
How is the government supporting businesses?
Coronavirus Job Retention Scheme: On 20 March 2020 it was announced that grants will be offered to businesses in the form of the Coronavirus job retention scheme. This scheme is open from 20 April 2020 and means that a business of any size in the private or charitable sector can apply to HMRC for up to 80% of a workers wages to be paid by the government (up to a maximum of £2500 per month plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that wage. HMRC has also clarified which commissions, bonuses and fees are not included. This amounts to around £30,000 per year being the current UK median salary. If you would like further guidance on what is and isn't included, get in touch with our employment solicitors.
In order to claim this, the employer must designate affected employees as ‘furloughed workers’ and advise affected employees about this change in status in writing, retaining the written record for five years and advising the employee that the reasoning is to avoid workers losing their jobs as a direct result of a negative impact on business due to COVID-19. Added later to the government’s guidance, the employer should also seek to secure written agreement from the employee that they will not work for the employer whilst furloughed.
This is subject to employment law though, and so depending on the employment contract the change in status could be subject to negotiation. If there is a right to remove work such as a short time or lay off clause, the employer can just notify the employee of the change. Otherwise, there has to be agreement from the employee to the employer’s offer. It is likely employees will agree to go on furlough leave, as the options are likely to be redundancy, no work or pay, or become a furlough worker. There will be a new online portal where information about employee’s designated as furlough workers will need to be submitted before reimbursements of wages can be made to employers.
Employees will need to have been employed by 28 February 2020 or by 19 March 2020 provided the employer had submitted real time information payroll data by that date. The employee must also be paid through a PAYE scheme set up by 28 February 2020 in order to qualify. The scheme also covers employees made redundant since 28 February 2020, if they are rehired by their employer, and employees can be furloughed multiple times by the same employer, as long as each furlough period lasts three weeks. Employees can start a new job with another employer when on furlough leave, if allowed under their employment contract, or if agreed with their employer. Employees on unpaid leave cannot be furloughed, unless they were placed on unpaid leave after 28 February and employees on sick leave or self-isolating should get SSP, but can be furloughed after they have finished self-isolating. Employees who are shielding in line with public health guidance can also be placed on furlough leave.
The last day for employers placing employees on furlough is 10 June 2020, after which time the scheme will close to new applicants on 30 June 2020 (3 weeks later).
Work cannot be undertaken by employees for their current employer during furlough leave, which could be open to abuse if the government does not have plans in place. It may also breed resentment where an employee is placed on furlough leave, as they may have been at risk of being made redundant but a more capable or useful employee is not placed on furlough leave but would rather get 80% of their salary not to work than to attend work for the extra 20% and potentially risk their health.
It will be difficult for employer’s in that situation and they may need to think of other incentives. If you require further information about furlough Leave or how to apply through HMRC under this scheme, please do see our article relating to furlough leave or contact our specialist employment solicitors.
Employers can top this 80% payment up, if they are able to do so. The scheme will be backdated to 1 March 2020 and will be available until the end of June in its current form and new flexibility will be introduced from 1 June to get employees back to work and boost the economy, even if this is part-time work. Employers will then be asked to contribute towards furloughed workers’ salaries.
From 1 July, 'flexible furlough' will mean that employers can choose and agree with employees the time split between working part time and being furloughed part time. This is a month earlier than previously announced by the government in an attempt to get people back to work sooner and try to prevent a deeper recession than is expected.
From 1 August there is a gradual reduction in the financial support offered to employers under the scheme. From the start of August this means 80% of an employee's salary can still be claimed under the furlough scheme up to a maximum of £2500, but employers are liable to pay employer NIC's and pension contributions and these cannot be claimed through the CJRS.
From 1 September only 70% of salary (up to a maximum of £2,187.50) will be reimbursed through the CJRS. Employers must then continue to pay employer NIC's and pension contributions and top up adding at least 10% to the employee salary payment so the employee receives at least 80% of their salary up to a cap of £2500, or more if this has been agreed between the employer and employee.
From 1 October, the government will only reimburse 60% of an employee's salary (up to a maximum of £1,875), and employers will need to continue to pay employer NIC's and pension contributions and top up the furloughed employee's salary to at least 80%.
The furlough scheme will close completely on 31 October 2020.
Statutory Sick Pay relief package for SMEs: Chancellor Rishi Sunak announced as part of the budget that, for businesses with less than 250 employees, the cost of providing SSP to an employee due to coronavirus-related absences for up to 14 days will be refunded in full by the government. These new measures taken by the government are intended to support SMEs who may be experiencing increased financial disruption at this time. It is likely that the Treasury will set up a refund mechanism for employers to reclaim SSP in due course.
The scheme is now open, so you can make your claim for a statutory sick pay rebate on the government website. Before you do it’s worth checking that you are eligible for the scheme – you can do this by visiting the government’s online form for checking eligibility but we’ve also outlined the main criteria for the SSP rebate scheme below.
You can use the scheme if:
- You’re making the claim for an employee who’s eligible for sick pay due to coronavirus (get more details on an employee’s eligibility for SSP due to coronavirus)
- Your PAYE payroll was set up on or before 28 February 2020
- You had fewer than 250 employees on 28 February 2020
The time periods for which you can make a claim are:
- On or after 13 March 2020 if the employee had coronavirus or the symptoms of coronavirus or was self-isolating due to someone that they live with experiencing symptoms
- On or after 16 April 2020 if the employee was shielding due to coronavirus
To make a claim, you do not need to receive a fit note from your employee. You will instead need to supply an isolation note from the NHS 111 service, or the NHS/GP letter telling the employee to stay at home for 12 weeks due to them being more vulnerable or in a high-risk category.
HMRC Time To Pay Scheme: All businesses and self-employed people in financial distress, and with outstanding tax liabilities, may be eligible to receive support with their tax affairs through HMRC’s Time To Pay service. If you have missed a tax payment or you might miss your next payment due to COVID-19 you should contact HMRC to see if you can qualify under this scheme.
How do I make a claim for wages through the Coronavirus Job Retention Scheme?
From 20 April 2020 HMRC’s online portal is available to make claims for wages of your furloughed employees. You will need the Government Gateway login details that you were provided with when you first set up your PAYE scheme together with your business’ and relevant employees’ details in order to make the claim. If you are making a claim for more than 100 employees then you will need to submit a file for each employee containing their full name, National Insurance number, furlough start and if known end date as well as the full amount claimed.
Once you have made a claim you will receive a claim reference number. HMRC will then check that your claim is correct and pay the claim amount by Bacs into your bank account within 6 working days. HMRC have advised that you should not contact them unless it has been more than 10 days since you made you application.
Following your application, you must keep a copy of all records, including how much you have claimed and when you have claimed for each employee, together with your calculations and the claim reference number.
You must also tell your employees that you have made a claim and that they are not required to do anything further regarding the application, unless you are directed otherwise by HMRC. You must then pay your employee their wages, if you have not done so already.
How do I continue to make claims as employees who are flexibly furloughed come back to work?
From 1 July, employers can bring furloughed employees back to work for an agreed number of hours on any agreed working pattern and can still claim under the CJRS for the hours not worked by that employee. Apart from where an employee has been on statutory parental leave, such as maternity leave, you can only claim under the CJRS for employees that have already received a grant and so must have been furloughed for at least 3 consecutive weeks between 1 March and 30 June 2020 (the last day an employee could have started furlough for the first time was 10 June).
Employers only have until 31 July to make any claims for claim periods up to 30 June and the number of employees being claimed for from 1 July 2020 cannot increase from the number of employees claimed for by 30 June 2020.
How to calculate a claim under the CJRS
Claim periods starting on or after 1 July must start and end within the same calendar month and must last at least 7 days unless you’re claiming for the first few days or the last few days in a month.
You can only claim for a period of fewer than 7 days if the period you are claiming for includes either the first or last day of the calendar month, and you have already claimed for the period ending immediately before. Previously there was a minimum of 3 weeks for furlough period, but from 1st July four claims can be made each month.
The claim period and payroll dates should match, if possible, as you can only make one claim for any period so you must include all your furloughed or flexibly furloughed employees in one claim even if you pay them at different times. If your pay period includes days in more than one month, you’ll need to submit separate claims covering the days that fall into each month.
If you make more than one claim, your subsequent claim cannot overlap, and you should calculate each claim separately. Where employees have been furloughed or flexibly furloughed continuously (or both), the claim periods must follow on with no gaps between the dates. The scheme will be changing each month from 1st July, so any claim periods starting on or after 1st July must start and end within the same calendar month.
To calculate the number of furloughed hours: take the employee’s usual hours and subtract the number of hours they actually worked in the claim period, even if this is different to what you agreed. If you claim in advance and your employee works for more hours than you agreed, then you’ll have to pay some of the grant back to HMRC. This means that you should not claim until you have certainty about the number of hours your employees are working during the claim period. You must pay the employee their contractually agreed rate for any hours they do work.
You cannot make claims for July until 1st July. You should check if you need to report payments on the PAYE Real Time Information system, as this will depend on whether you are using the grant to pay wages or reimburse wages that you’ve already paid. For further details see Reporting employees' wages to HMRC when you've claimed through the Coronavirus Job Retention Scheme.
For more guidance on the calculations required for employees being flexibly furloughed, HMRC have provided some worked examples: Full examples of how to calculate the amount you should claim for an employee who is flexibly furloughed.
Basically, from 1 July, employers will claim 80% pro rata of salary, based on the proportion of hours not worked out of the employees normal working hours. Normal working hours for those with fixed hours/pay, are calculated using the number of hours worked in the pay period before 19 March 2020. Normal working hours for those with variable pay is calculated by taking the higher of (a) the average number of hours worked in the tax year 2019 to 2020 or (b) the corresponding calendar period in the tax year 2019 to 2020.
As an alternative to redundancy, can an employer ‘lay-off’ employees for a temporary period unpaid if the employee agrees to it?
Depending on an employee’s contract of employment, there may be a ‘lay off’ clause allowing for employers to do this. If so, this could legitimately be exercised where there is a downturn in work. If there is no such clause in an employee’s contract of employment, it is unlikely that an employee would agree to this given the above commitment by the government to pay 80% of wages where an employer applies to HMRC through the Coronavirus job retention scheme and the employee is placed on Furlough leave instead of being ‘laid off’ or being made redundant.
Recruitment and COVID-19
Understandably, many employers are considering a recruitment freeze due to the uncertainty surrounding their short and long term business prospects and requirement for staff. If an employee has been offered a job but that job is no longer there due to the effects of COVID-19, if the employee was employed by 28 February 2020 they would qualify for the government’s Coronavirus Job Retention Scheme and an employer may not be required to withdraw a job offer if they believe that after the scheme ends the requirement for that employee will still be there. If the employee has not yet been offered and accepted a contract, then the job offer can be formally withdrawn or delayed until a later time. However, if a contract has already been signed and accepted but the start date is after 28 February 2020 this is more problematic. Where there is a contract the employer would be required in withdrawing the job offer, to also terminate the contract in accordance with that contract. If the employee and employer were in agreement, the employer and employee could just vary the contract with an alternative start date. If your business has made a job offer and you would like to discuss your individual case with one of our employment solicitors, please contact us.
Should an employee ask for a sick note from their GP?
Many sick pay policies will include a requirement for the employee to obtain a fit note from a doctor. However, an employee who is following official guidance to self-isolate, and who has flu-like symptoms, may be unable to obtain a fit note. Their local GP is likely to refuse to see anyone with coronavirus symptoms or those who have been to particular geographic areas. Therefore those with symptoms of coronavirus can get an isolation note from NHS 111 online and those who live with someone that has symptoms can get a note from the NHS website. For the first seven days off work, employees can self-certify and do not require evidence of sickness for their employer. After that seven day period has passed, employers may ask for evidence of the advice to self-isolate and an isolation note can be obtained following this link where the sickness absence relates to having symptoms of coronavirus or living with someone who has symptoms.
What should an employer do if an employee refuses to attend work because they have a disability which may put them at higher risk if they contract COVID-19?
Employers should avoid anything which could reasonably be perceived as discrimination as a result of disability. As people who suffer from certain health conditions are at higher risk if they contract COVID-19, requiring employees to continue travelling to and attending work, not paying or dismissing employee’s due to their absence when this is the reason provided, could amount to disability discrimination.
If an employee self-isolates because of a disability that puts them into a high-risk category, indirect disability discrimination may also be an issue, as any employer actions which disadvantage an employee affected by a relevant disability such as saying they will not pay, or that they will discipline or sack such an employee because they do not attend work, substantially disadvantages an employee because of "something arising in consequence" of the employee's disability.
An employer may be liable for a failure to make reasonable adjustments if it does not facilitate a disabled employee's request to work from home in a pandemic. However, where the employee's role is not suitable for remote working, it will not necessarily be a failure to make a reasonable adjustment for the employer to not continue to pay a disabled employee who self-isolates before seeking medical advice.
Employers should ensure they are complying with the Social Distancing Guidelines dated 16 March 2020 which strongly advises employees with specified underlying health conditions should work from home. If you would like further advice or assistance with a specific situation relating to disability and COVID-19, please contact us.
What should an employer do when an employee suffers from anxiety and refuses to attend work because of the perceived risk of catching COVID-19?
An employer should try where possible to communicate with employees and be understanding of their concerns regarding COVID-19, whilst being firm about business needs and clear on what is required. If working from home is not possible, perhaps flexible working, or allowing the employee to take holiday or unpaid leave is a possibility and could be discussed with the employee.
An employee with severe anxiety may find their condition is exacerbated by travelling or being in public places due to the increased risk of contracting COVID-19. If their anxiety prevents them from attending work in these circumstances, sick leave and therefore SSP or contractual sick pay is likely to be the most appropriate route.
Severe anxiety could qualify as a disability under the Equality Act 2010 and prompt that medical advice on this should be taken as soon as possible.
Do employers have responsibility for an employee’s health and safety when they are working from home?
Yes, under the Health and Safety at Work etc Act 1974 an employer is responsible for an employee's welfare, health and safety, so far as is reasonably practicable and must conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees, including homeworkers, to identify hazards and assess the degree of risk under the Management of Health and Safety at Work Regulations 1999. If you would like assistance with drafting a homeworking policy, our specialist employment solicitors can provide a comprehensive policy for you.
What if employees can’t work because they have to look after a dependent?
If an employee finds that a dependent needs support in an unexpected emergency, they will be entitled to time off work. This will also apply in instances related to the coronavirus outbreak. For example, as school closures occur and an employee needs to take care of their children, or an employee has to look after an elderly relative who may have contracted the virus, then they may be unable to work.
In this case, employees are allowed a reasonable amount of time off to take care of dependents. However, there is no set time limit for this as it is dependent on the individual situation. You are not obliged to pay employees for this time off unless it is stipulated in their employment contract.
It’s important to note that if a partner, child or relative of your employee has contracted the virus or has a temperature or cough, government guidelines recommend that the employee (and their entire household) should self-isolate for 14 days. In this case, they will be entitled to SSP for this period of time.
Following social distancing advice
The government’s advice on social distancing stipulates that you should take reasonable steps to avoid unnecessary contact with other people. This includes, instructing your employees to work from home where possible, avoiding public transport, and avoiding public gatherings.
For employers to follow these guidelines you may want to consider:
- Instructing employees to work from home where possible
- Supporting your employees to work more flexibly, potentially changing their start and finish times so that they avoid busy public transport
- Cancelling meetings and any other public events and instead introducing virtual meetings and conferences in their place
What about travelling for business? Where does an employee and an employer stand then?
Employers have a duty of care towards employees at work and on business travel. As part of this duty of care, employers are expected to take sensible action to protect their employees.
Because of this, it’s now important to stop any non-essential business travel. Previously, the government stated that travel to areas where there has been a serious outbreak of COVID-19, or where the government or your insurer has warned against it, should be stopped. But this has recently been stepped up to include all non-essential travel. The government has released and is constantly updating advice on travel to reduce the spread of the virus.
If you don’t comply with guidelines, you could be at risk of a negligence/personal injury or health and safety claim being brought against you, in the instance of an employee contracting coronavirus on a work-related trip. If you go ahead with non-essential business travel, then you could also invalidate your insurance policy.
To prevent any claims being brought against you, cancel non-essential international and domestic trips. This will make sure that you comply with your duty of care as an employer, reducing the risk of your employees contracting the virus.
You should also plan to hold meetings virtually where possible, using video conference technology to keep business momentum going.
Are we likely to see employers and employees going to court over the issue?
It’s possible. Refusing to allow employees to stay at home, or disciplining them for not attending work, could potentially lead to legal claims. For example, an employee might try to claim constructive unfair dismissal if there is a genuine health and safety risk arising from attending work. However, this kind of claim isn’t likely to succeed if the employer has acted reasonably and not placed the employee at undue risk.
What general health and safety guidance should businesses follow?
Employers have a duty to take steps that are reasonably necessary to ensure the health, safety and welfare of all their employees, including those who are particularly at risk.
If your business employs more than five people, you are legally obliged to have a written health and safety policy or statement, which is circulated and available to employees and this must be abided by. Even if you do not have more than five employees it is a good idea to have a written health and safety policy. If you would like more information please see our article on Writing a Staff Handbook, which references this policy and if your business would like assistance with drafting or updating a Health and Safety policy, please do get in touch, so that our specialist employment solicitors can assist you. An employee must cooperate with their employer so they can comply with their duties under health and safety legislation. Employees who refuse to cooperate, or who recklessly risk their own health or that of colleagues or customers, could be disciplined.
Businesses need to implement a strategy to protect their employees. A detailed plan can help employers and managers to comply with legal obligations and will evidence the steps the company has taken to try to protect against an outbreak at work. This plan should also cover the steps to follow if there is an outbreak, in order to minimise and mitigate against its impact.
What can businesses do if faced with a coronavirus outbreak in the office?
To protect your employees, it’s worth putting together an action plan. This will help you and your management team to remain compliant with your legal obligations as an employer and help you take the necessary steps to prepare and to prevent an outbreak occurring at your place of work.
In preparation of an outbreak:
- Tell employees there’s a possibility their workplace could close
- Inform employees of potential symptoms to be aware of and remind employees of hygienic practices and the facilities available at your workplace to maintain these. If required extend these facilities or alter practices to minimise risks for employees and others on your business’ premises
- Revise and update any HR policies such as: sickness absence (see our article on ‘managing sickness absence’), dependent care leave, flexible/home working. For example, you may want to change the requirement to obtain a sick note from a doctor as part of your sickness absence policy in light of the fact that in this case one will not be provided. You may also wish to inform employees that any COVID-19 related illness will not be considered for the purposes of the business’ sickness absence threshold for formal action to be taken under the policy.
If an outbreak occurs:
- Get in touch with your nearest Public Health England centre as soon as possible
- Allow employees to work from home. If this is not usually commonplace your management team may need to outline their expectations for remote workers, and organise regular communication
- Contact a hazmat company to expertly clean and disinfect the workplace
- Set up regular virtual meetings to keep remote workers engaged and involved
- If necessary, consider unpaid leave or salary reduction as an alternative to termination of employment
How should businesses deal with the return of a worker who has had the virus?
Once the employee has recovered, businesses should seek confirmation from a doctor before their return, to make sure no risk is posed to other members of staff. Employers must respect employees’ health data privacy: information about an individual's health will amount to ‘special category data’ under the General Data Protection Regulation (GDPR). You should seek employee consent to process such information.
As an employer, if you require advice on the issues that could arise from a coronavirus outbreak or creating a special sickness policy, our employment law specialists can help.
As the current situation continues to unravel you may have further questions about your business. Visit out dedicated hub providing legal advice for businesses during the COVID-19 outbreak, where you will find information and resources to help you and your business navigate this difficult time.
*Please note that as this situation is continuing to evolve, this article does not constitute formal legal advice and should not be relied upon as such. Always ask a solicitor if you are unsure of how the law relates to your business