The rapidly changing nature of the COVID-19 outbreak means that information and advice from Government can change quickly. For the latest Government information on COVID-19, please visit the UK Government website, the Scottish Government website, the Welsh Government website or the Northern Irish Government website. Please be sure to check the COVID-19: guidance for employers and businesses from the Government for the latest updates.

 
 

Guidance for Employers

 

Symptom Update

The UK Chief Medical Officers have now added anosmia to the list of reasons people should self-isolate.

Anosmia is the loss of or a change in your normal sense of smell. It can also affect your sense of taste as the two are closely linked.

Adding it to the list means that from today:

  • Individuals will need to self-isolate immediately if they develop a new continuous cough or fever or a loss or changed sense of normal smell or taste (anosmia)
  • All members of their household must also self-isolate according to current guidelines, unless the symptomatic individual receives a negative test result.

Social distancing, flexible working and working from home

Current government advice is for everyone to try and stop unnecessary contact with other people – ‘social distancing’. This includes:

  • working from home where possible
  • avoiding busy commuting times on public transport
  • avoiding gatherings of people, whether in public, at work or at home

 

Employers should support their workforce to take these steps. This might include:

  • agreeing to more flexible ways of working, for example changing start and finish times to avoid busier commuting times
  • allowing staff to work from home wherever possible
  • cancelling face-to-face events and meetings and rearranging to remote calling where possible, for example using video or conference calling technology

Vulnerable people

Employers need to be especially careful and take extra steps for anyone in their workforce who is at increased risk from coronavirus.
They include, but are not limited to, those who:

  • have a long-term health condition, for example asthma, diabetes or heart disease, or a weakened immune system as the result of medicines such as steroid tablets or chemotherapy
  • are pregnant
  • are aged 70 or over
  • care for someone with a health condition that might put them at a greater risk

 If an employee does not want to go to work

Employees may be anxious about the risks of being exposed to the virus due to travelling to work on public transport or by attending the workplace. They may even refuse to attend work on this basis. Whilst their absence in this circumstance is likely to be unauthorised, again, unless there is clear evidence that the employee’s concerns are not genuinely held, the best approach would be to assuage employees’ anxieties by referring them to published advice from Public Health bodies. It is unlikely to be reasonable to treat absences from work in those cases as unauthorised or as a disciplinary matter unless the employer has reasonable grounds for believing, based on compelling evidence, that they are using the virus as an excuse not to attend work.

An employer should listen to any concerns staff may have and should take steps to protect everyone. For example, they could offer extra car parking where possible so that people can avoid using public transport. If an employee still does not want to go in, they may be able to arrange with their employer to take the time off as holiday or unpaid leave. The employer does not have to agree to this. If an employee refuses to attend work without a valid reason, it could result in disciplinary action.

Employers may choose to be cautious about permitting those employees to work from home or otherwise stay away from the workplace where they do not wish to set what employees may construe as “a precedent” by doing so; and where there is no good public health reason for them to stay away from the workplace.

 
 

Furlough Guidance

We have a number of guidelines and FAQs relating to furloughing staff. Read More

 
 

Job Retention Scheme Update

This advice note is updated as at 12pm on Monday 23 March 2020 and is likely to change due to daily Government updates regarding same. Therefore, you should keep up to date by reading the Government website daily and seeking our advice on any specific circumstances you may wish to discuss with us. This advice note cannot be relied upon and is for information purposes only.

Who can access the scheme?

All UK businesses are eligible to use the scheme, regardless of size.

How will the scheme operate?

The employer will designate affected employees as ‘furloughed workers’ and notify them of this change. The brief guidance we have seen suggests that this may require consultation (please see below) and we would recommend that you consult with each individual regarding these changes

1.           The employer will then submit information to HMRC about the employees that have been furloughed and their earnings through a new online portal. Further guidance will be given by HMRC as to the information the employer will have to provide.

2.           HMRC will then give the employer a grant to reimburse 80% of all furloughed workers wage costs, up to a cap of £2500 per month.

3.           There is no obligation on the employer to make up the remaining 20% wages “but they may choose to do so”. We have included this as an option in our template letter.

HMRC are working urgently to set up a system to reimburse these monies as the current systems are not set up to facilitate payments to employers. At the press conference the Chancellor indicated that he hoped the first grants would be paid before the end of April. He also stated that claims could be made for wages lost since 1 March.

The scheme is intended to run for 3 months but the Chancellor said that he would not hesitate to extend this period if necessary.

What does it mean to be a ‘furloughed worker’?

In UK employment law, the term ‘furloughed’ has no legal significance and therefore we’ll need to see what specific guidance is given on this when further details are released. The strict meaning of the word is a temporary leave of absence from work. Unless the government confirms to the contrary, we should assume that all contractual benefits (for example holidays) continue to accrue.

Do you have to consult with the employee before making them a furloughed worker?

From the very basic information we have seen so far, it does appear that, unlike lay off and short-time working which is the exercise of a contractual right, the employer does have to seek the employee’s agreement to becoming a furloughed worker. The employee’s guide states that the employer should discuss becoming a furloughed worker with the employee. The employer’s guide specifically states “changing the status of employees remains subject to existing employment law and, depending on the employment contract, may be subject to negotiation”. It is difficult to make definitive assertions when there is so little information available to, but we suspect the words ‘depending on the employment contract”, probably refer to whether there is a contractual right to lay off. If the contract contains this right, then the employer already has the right to send the employee home without work and therefore the only ‘change’ in converting the lay off to a period of furlough, is that the employee will received 80% of their pay rather than a week of statutory guarantee pay every 13 weeks.

Let’s look at some of the options.

Employer wants to make the employee redundant

Although the government’s aim is to save as many jobs as possible through the current crisis, some employers will want to make permanent decisions about continuing employment. In these cases, they would follow through a normal redundancy process. This will clearly be understandable if the employer has decided to cease trading. However, we should carefully consider the business cases in other situations given the government is effectively picking up the reduced wages (assuming the employee would be happy to be a furloughed worker). In order for the business case to stand up to scrutiny, it would probably need to be based on more than the immediate and direct impact of the current crisis unless it was clear that this will have a lasting impact on the need for the role. Therefore, we would recommend that you take specific advice from us on any proposed redundancies given the legal requirements associated with the process. Please note, employment legislation remains the same, at the date of writing.

Employer has reduced need for employees but does not want to make redundancies at the moment

If the employer has a right of lay off in the contract, they should speak to their employee, explain that they need to exercise the right to lay off which would have very limited right to pay ( statutory guarantee of up to £29 per day for the first 5 workless days in any 13 week period). As an alternative, they could become a furloughed worker and receive 80% of their wages (subject to the monthly cap of £2500) for up to 3 months.

If the employer does not have a right to lay off in his contract, he could ask the employee to agree to becoming a furloughed worker as an alternative to redundancy.

What if the employer has already laid people off?

Many employers took immediate action last week as social distancing severely affected their businesses and many employees have already been laid off. There is no official guidance on what should be done in these circumstances but given that the government has strongly indicated that this scheme is about giving support to workers,  and the fact that the Chancellor indicated that claims can be made for wages lost since 1 March, clients should contact employees who have been laid off (in a temporary sense and not dismissed) and offer to designate them as furloughed workers. At the moment it is unclear whether a day which has been treated as lay off and statutory guarantee pay paid, can now be treated as a period of furlough. Hopefully this will be clarified shortly.

It is unclear, at present, what the situation will be for employees who have been dismissed during this period and we will continue to update you as we get more information from the Government.

If an employer did not offer to designate laid off employees as furloughed workers, this could be viewed as a breach of trust and confidence and could give rise to a claim for constructive dismissal.

What if there is work for employees for part of the week?

It is still not entirely clear whether the scheme will offer any support for employees on reduced hours in addition to those who are laid off completely but from what we can see at the moment, our advice would be that there is no support available in these circumstances. The employee guide to the scheme makes it clear that during a period of furlough, no work must be done for the employer or for any other new employer which would seem to rule out short-time working. Employees will still remain bound by their contracts of employment during the furlough period.

Can a period of furlough trigger redundancy?

Unlike lay off, where a continuous period of lay off or short- time working can allow the employee to trigger redundancy, this does not appear to be the case with a period of furlough. This makes sense as the whole purpose of the scheme is to avoid redundancies and most employees will be receiving 80% of their wages, well above the 50% pay level for short-time working which could trigger a redundancy.

How do you select who should be designated as furloughed workers?

Employees’ attitudes towards furlough may differ significantly. Some may wish to avoid this given the drop in wages ( assuming the employer does not make up the difference) whereas others may be happy to stay at home for 80% of their wages, especially because of the perceived risks of infection if they can’t work from home and the impact of school and nursery closures. Employers will also want to ensure that they are retaining the skills they will need within the business at this most challenging time. They will therefore need to identify those with the specific skills they need to retain in work (with an objective reasoning behind this). For the remaining employees, they should discuss the situation (in line with the comments above regarding the existence of a right to lay off) and ask for volunteers. If they do not have sufficient volunteers, or if they have too many, it will be necessary to follow a selection process. It is important to take advice on this as, unlike lay off and short-time working, which can be shared on a rota basis, all the signs seem to be that employees will be designated furloughed workers and remain so until the period of furlough can be brought to an end.

Should the employer simply select those employees who have been identified as particularly high risk?

Whilst we can understand why an employer would want to do this with the best of intentions, they would in effect be choosing those individuals on the basis of health, age or pregnancy which could easily give rise to discrimination claims. If an employee has been identified as being in one of these groups, the employer should have carried out a risk assessment on them continuing to work. If this did not flag any issues, then there should not be any reason why they should not be able to work. They should therefore be included in the pool to be offered a period of furlough. However, if the employer receives too many requests to volunteer, selecting those volunteers who would be at the highest risk of continuing to work would seem to be a reasonable approach.

We are still waiting to see whether the government will apply the more stringent, 12 week isolation restrictions on these groups and how this period of absence is to be treated. It is likely that this form of self-isolation will also be treated as sickness absence.

Can an employee request to be furloughed?

An employee can ask for this but it is entirely up to the business as to whether they wish to designate any employees as furloughed workers. If they decide to do so, they should not agree to this on an ‘on request’ basis as this may deprive others of the opportunity and it may be that they have additional needs which should have been considered when weighing up the decision.

Does the scheme apply to workers as well as employees?

Technically there is no need to furlough a worker unless there is an obligation to provide work (and generally this is absent from worker relationships unless it is on a very short term basis). However, we know that many individuals classed as casual workers / zero hours workers are actually variable hour employees. The Chancellor was specifically asked about this at the press conference and he said that the scheme was open to anyone on PAYE (therefore just ruling out the self-employed). When asked how their pay would be calculated, he said there would be detailed guidance on who would determine this and how it would be calculated.

Those who are self-employed are not eligible for the scheme and it will be interesting to see how this may affect many people’s perception of their true employment status. At the moment it seems that, regardless of what their true employment status may be, they will still not be eligible for the scheme as they are not on PAYE.

Please continue to check with the Government website for any updates on a daily basis. We will update you as much as we can in the circumstances.

On Friday 20 March 2020, the government published some very general guidance for employers and employees on the new Coronavirus Job Retention Scheme announced by the Chancellor during Friday’s press briefing. Under this scheme, the government have committed to pay up to 80% of wages for those employees who would otherwise be made redundant. Although the Chancellor referred to the scheme’s aim as being to avoid people being ‘laid off’, it is likely that he was using this as the commonly used term for redundancy rather than ‘lay off’ in the strict legal sense ( a right not to provide work) as the objective is to avoid people losing their jobs and in a true ‘lay off’ situation, employment continues despite the employer providing no work to the employee albeit on a temporary basis. Read More

 
 

SSP

Support for businesses who are paying sick pay to employees

The government will bring forward legislation to allow small-and medium-sized businesses and employers to reclaim Statutory Sick Pay (SSP) paid for sickness absence due to COVID-19. The eligibility criteria for the scheme will be as follows:

  • this refund will cover up to 2 weeks’ SSP per eligible employee who has been off work because of COVID-19
  • employers with fewer than 250 employees will be eligible – the size of an employer will be determined by the number of people they employed as of 28 February 2020
  • employers will be able to reclaim expenditure for any employee who has claimed SSP (according to the new eligibility criteria) as a result of COVID-19
  • employers should maintain records of staff absences and payments of SSP, but employees will not need to provide a GP fit note. If evidence is required by an employer, 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
  • eligible period for the scheme will commence the day after the regulations on the extension of SSP to those staying at home comes into force
  • the government will work with employers over the coming months to set up the repayment mechanism for employers as soon as possible

Eligibility

You are eligible for the scheme if:

  • your business is UK based
  • your business is a small or medium-sized and employs fewer than 250 employees as of 28 February 2020

How to access the scheme

A rebate scheme is being developed. Further details will be provided in due course once the legalisation has passed.

The government will bring forward legislation to allow small-and medium-sized businesses and employers to reclaim Statutory Sick Pay (SSP) paid for sickness absence due to COVID-19. The eligibility criteria for the scheme will be as follows:

 
 

Lay Offs and Short Time Working

Lay Offs and Short Time Working

Some businesses have been affected by a downturn in work caused, for example, by current or potential customers “social distancing” as a result of public anxiety around contracting the virus.  At the Budget on 11 March 2020, the Government announced measures it will introduce to support businesses that experience increased costs or disruptions to their cashflow as a result of coronavirus, including a Coronavirus Business Interruption Loan Scheme and a dedicated HMRC helpline for those who need a deferral period on their tax liabilities.

Lay-offs and short time working can be put in place as a useful way of handling temporary work shortages without having to resort to redundancy. However, employers can only lawfully take this action to avoid potential unlawful deductions from wages claims or breach of contract claims where employees agree to being laid off or kept on short-time working, or it is provided for in the contract (e.g. the contract contains a “lay-off” and/or “short-time working” clause).  Please refer to our factsheet on Lay-offs/Short Time Working

Lay-offs and short time working can be put in place as a useful way of handling temporary work shortages without having to resort to redundancy.

 
 

Variations of Contract

Businesses affected by a downturn in work may also consider putting in place other temporary measures to avoid the need for redundancies, such as introducing a temporary reduction in pay, working hours, or removing/reducing certain contractual benefits.  Employers will need to consult with staff to obtain their agreement to these measures in the absence of any relevant contractual flexibility clauses or short-time working clauses.

Businesses affected by a downturn in work may also consider putting in place other temporary measures to avoid the need for redundancies, such as introducing a temporary reduction in pay, working hours, or removing/reducing certain contractual benefits.

 
 

Using Holiday

Employers have the right to tell employees and workers when to take holiday if they need to. For example, they can decide to shut for a week and everyone has to use their holiday entitlement.

If the employer does decide to do this, they must tell staff at least twice as many days before as the amount of days they need people to take.

For example, if they want to close for 5 days, they should tell everyone at least 10 days before.

This could affect holiday staff have already booked or planned. So employers should:

  • explain clearly why they need to close
  • try and resolve anyone’s worries about how it will affect their holiday entitlement or plans

Employers have the right to tell employees and workers when to take holiday if they need to. For example, they can decide to shut for a week and everyone has to use their holiday entitlement.