Law guide: Employment

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Coronavirus (COVID-19)

Coronavirus (COVID-19)

Contents

In this section you'll find information and updates related to coronavirus that are relevant to the law on employment.

The UK's response to coronavirus is changing regularly and often very quickly. While we'll continue to make every effort to keep this page up to date, there may be short periods where what you read here is not the latest information available. Where possible we've tried to provide links to official sources, so you can check the current situation.

Furloughing and the Coronavirus Job Retention Scheme

The scheme exists to prevent UK businesses, charities and recruitment agencies from making redundancies if their operations are affected by coronavirus.

The government will pay a percentage of staff salaries (up to a maximum amount a month) while they're furloughed.

Extension of the scheme

The scheme was originally due to end on 31 October 2020. However, it has now been extended twice: first until 30 April 2021 and then 30 September 2021.

The extended scheme will operate broadly as the previous scheme did (see the archived government guidance), with businesses being able to claim grants upfront towards wage costs.

Since 1 July 2021, you need to make a contribution to the amount paid to your furloughed staff.

Neither you nor the employee need to have used the scheme before to be eligible under the scheme extensions.

There is also no maximum number of employees you can claim for.

Frequently asked questions

The following notes replicate some of the UK government guidance on the scheme.

What is furlough leave?

It's a new form of leave in UK employment law. It essentially means a leave of absence that both you and your staff agree to. It's meant as a temporary period during which they're required not to work or to work part-time only.

What are the time limits?

Currently, the scheme as extended runs until 30 September 2021. Staff can't be furloughed beyond this date unless the UK government extends it again.

To allow for flexible furloughing arrangements, employers will (when claiming the grant for furloughed hours) usually need to report and claim for a minimum of 1 week.

Which businesses qualify?

You must:

  • be a UK business whose operations have been affected by coronavirus;
  • have enrolled for PAYE online;
  • have a UK bank account; and
  • not receive any public funding for staff costs (though there are some exceptions to this).

Which types of staff can be put on furlough leave?

Any of the following, on any type of contract, provided they're paid via PAYE:

  • Employees (including directors with service agreements and salaried members of Limited Liability Partnerships)
  • Workers under a contract to provide services to you (provided you aren't their customer/client)
  • Agency workers (including those employed by an umbrella company)
  • Apprentices; and
  • Company directors (without a service agreement) and other office holders. This includes salaried directors of their own personal service companies.

To qualify, they must have been on your payroll as of either:

  • 30 October 2020, if you're claiming for a period ending on or before 30 April 2021 (as long as an RTI payment submission for the person was notified to HMRC between 20 March 2020 and 30 October 2020); or
  • 2 March 2021, if you're claiming for a period starting on or after 1 May 2021 (as long as an RTI payment submission for the person was notified to HMRC between 20 March 2020 and 2 March 2021).

There are special rules about re-employing people for claim periods ending on or before 30 April 2021 - see below under What about staff who've already been let go?

For more about categories of eligible staff, see the guidance on the scheme.

Can I make staff redundant?

For claim periods starting on or after 1 December 2020, you can't claim for any days during which the furloughed individual was serving a contractual or statutory notice period (this includes people serving notice in relation to redundancy, retirement or a resignation). If they subsequently start a contractual or statutory notice period on a day covered by a previously submitted claim, you will need to make a claim adjustment.

If you make an employee redundant, you should base statutory redundancy and statutory notice pay on their normal wage rather than the reduced furlough wage.

What about staff who've already been let go?

For claim periods ending on or before 30 April 2021:

  • Staff who were on the payroll on 23 September 2020 and were made redundant or stopped working for you afterwards can be re-employed and claimed for. You must have made a PAYE Real Time Information (RTI) submission to HMRC between 20 March 2020 and 30 October 2020, notifying a payment of earnings for them.
  • Similarly, if a person was on a fixed-term contract and on payroll on 23 September, but that contract expired after 23 September, you can re-employ and claim for them, provided that the other eligibility criteria are met.

What about TUPE?

A new employer is eligible to claim in respect of the employees of a previous business transferred under the Transfer of Undertakings (Protection of Employment) Regulations.

For claim periods ending on or before 30 April 2021, you can claim under the normal rules if they were included by you on a PAYE Real Time Information (RTI) submission to HMRC on or before 30 October 2020. Otherwise, the employees being claimed for should have been:

  • transferred from their old employer to their new employer on or after 1 September 2020;
  • employed by their old employer on or before 30 October 2020; and
  • on a PAYE Real Time Information (RTI) submission to HMRC by their old employer between 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee.

For claim periods starting on or after 1 May 2021, you can claim under the normal rules if they were included by you on a PAYE Real Time Information (RTI) submission to HMRC on or before 2 March 2021. Otherwise, the employees being claimed for should have been:

  • transferred from their old employer to their new employer on or after 1 January 2021;
  • employed by their old employer on or before 2 March 2021; and
  • on a PAYE Real Time Information (RTI) submission to HMRC by their old employer between 20 March 2020 and 2 March 2021, notifying a payment of earnings for that employee.

If you are part of a change in ownership where the TUPE succession rules apply, then you should ensure that the information needed for future claims under the Coronavirus Job Retention Scheme is passed on.

How are people put on furlough leave?

You can only do it if you both agree to it - you need their agreement because it'll change the terms of their contract. Our Letter putting a worker or employee on furlough leave is a way of recording their agreement.

Any furlough agreement that put someone on furlough from 1 November 2020 and was made retrospectively will be valid for the purposes of a claim, as long as the paperwork was put in place by 13 November 2020. After that, the written agreement has to be in place by the time the person goes on furlough.

Discuss using the scheme with them beforehand. If you intend to use the scheme for 20 or more employees from one place of work, you will probably need a collective consultation process.

If they refuse, consider using unpaid leave, lay-off or, if necessary, redundancy.

Be careful not to discriminate against them when selecting. That said, it's likely that you'll be able to justify furloughing staff who are disabled and have high-risk underlying health conditions, or older staff in high-risk groups.

Can furlough leave be rotated or used more than once?

Yes, you can rotate it among individuals, or put them on it more than once.

Can staff do any work while on furlough leave?

Employers can bring furloughed staff back to work for any amount of time and any shift pattern, while still being able to claim under the scheme for their normal hours not worked ('flexible furloughing'). To be eligible for the grant, employers must agree with the individual any new flexible furloughing arrangement and confirm that agreement in writing. For worked hours, staff will be paid by their employer subject to their employment contract and employers will be responsible for paying the tax and NICs due on those amounts.

Employers can claim the grant for the hours their staff are not working, calculated by reference to their usual hours worked in a claim period. Employers will be required to submit data on the usual hours an individual would be expected to work in a claim period and actual hours worked. See Steps to take before calculating your claim for guidance on this. When claiming the grant for furloughed hours, employers will usually need to report and claim for at least one week. This is a minimum period and those making claims for longer periods will be able to do so.

Staff can be flexibly furloughed more than once.

If you flexibly furlough staff, they can't do any work for you during time that you record them as being on furlough.

Staff are not allowed to work for you while on furlough leave or during furloughed hours. They can do volunteer work or training, as long as this doesn't provide a service to you or generate any revenue for you.

Note the following:

  • Staff 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. However, in doing this, they must not provide services to or generate revenue for you, or on your behalf.
  • While they are furloughed, staff who are pension scheme trustees or trustee directors of a corporate trustee may undertake trustee duties in relation to the pension scheme. However, a professional, independent pension scheme trustee who has been furloughed by the independent trustee company cannot undertake trustee work that would provide services to or generate revenue for, or on behalf of, the independent trustee company.
  • Where furloughed directors need to carry out particular duties to fulfil the statutory obligations they owe to their company, they may do so provided they do no more than would reasonably be judged necessary for that purpose, i.e. they should not do work of a kind they would carry out in normal circumstances to generate commercial revenue or provides services to or on behalf of their company. This also applies to salaried individuals who are directors of their own personal service company.

What will the scheme pay?

For claim periods starting on or after 1 August 2021, the government will pay 60% of an employee's usual wages for the hours that they are furloughed and not working, up to a cap of £1,875. You have to pay 20% to make up the 80% total. You also have to pay the employer minimum automatic enrolment pension contributions in respect of the 80% (unless the individual has chosen to opt-out or to stop saving into a workplace pension scheme), plus the employer NICs in respect of the 80%.

For flexible furloughing arrangements, the wage caps are proportional to the hours an individual is furloughed; e.g. an individual who is flexibly furloughed is entitled to 60% of the wage cap if they are placed on furlough for 60% of their usual hours.

What if the percentage of pay is less than the National Living/Minimum Wage?

This is allowed, but if staff need to complete job-related training while on leave, you must pay them at least the National Living/Minimum Wage for the time spent doing it.

Similarly, apprentices can be furloughed in the same way as other staff and they can continue to train while furloughed. However, you must pay your apprentices at least the Apprenticeship Minimum Wage/National Living Wage/National Minimum Wage as appropriate for all the time they spend training. This means you must cover any shortfall between the amount you can claim for their wages through the scheme and their appropriate minimum wage.

Can I recover payments for the apprenticeship levy or student loans from the scheme?

No, these cannot be recovered from the scheme and you must continue to pay them.

Can I recover from the scheme any statutory family leave payments?

No, these need to be reclaimed in the usual way from HMRC. This includes employees currently on maternity leave, paternity leave, shared parental leave, adoption leave or parental bereavement leave. However, if an employee was furloughed and then started claiming payments for one of these types of leave after 25 April 2020, you may need to calculate the employee's average weekly earnings differently for the purposes of the statutory payments for these types of leave. The guidance on the scheme contains links to specific guidance on this for each of these types of leave.

You can claim through the scheme for any enhanced maternity, paternity, adoption, shared parental or parental bereavement leave pay that you offer as part of an employee's contract.

Can I 'top up' the remaining balance?

Yes, but you do not have to.

If you do, you'll have to pay the amount of their earnings that's not covered by the grant (the top-up amount), plus employer National Insurance contributions and automatic pension enrolment contributions on the top-up amount. Note that the payments must include any contractual payments for overtime, fees, commission or bonuses if you normally pay them. The amounts could be substantial if their gross wage is more than the monthly wage cap.

What if they have more than one employer?

If your employee has more than one employer they can be furloughed for each job. Each job is separate. Employees can be furloughed in one job and receive a furloughed payment but continue working for another employer and receive their normal wages.

Can staff be put on furlough leave while on sick leave?

The scheme is not intended for short-term absences from work due to sickness. If you have a business reason to furlough them, they must stop receiving sick pay and become classed as furloughed. Or, you could wait until their sick leave ends before furloughing them, if they provide a medical certificate.

If the individual becomes sick while furloughed, they retain their right to Statutory Sick Pay. This means that furloughed employees who become ill must be paid at least Statutory Sick Pay. Subject to eligibility, this includes those self-isolating or clinically extremely vulnerable because of COVID-19. It is up to you to decide whether to move them onto Statutory Sick Pay or to keep them on furlough, at their furloughed rate.

If they are moved onto SSP, you can no longer claim for the furloughed salary. You're required to pay SSP yourself, although you may qualify for a rebate for up to 2 weeks of SSP. If instead you keep them on furlough at the furloughed rate, you remain eligible to claim for these costs through the furlough scheme.

You can furlough staff if they are unable to work because of any of the following:

  • They are clinically extremely vulnerable
  • They are at the highest risk of severe illness from COVID-19 and following public health guidance
  • The have caring responsibilities resulting from COVID-19, including staff that need to look after children

You do not need to be facing a wider reduction in demand or be closed to be eligible to claim for any staff in the above groups.

Can staff use their annual leave while on furlough leave?

Yes. If an employee is flexibly furloughed then any hours taken as holiday during the claim period should be counted as furloughed hours rather than working hours. Note that while on annual leave, they must be paid their full normal rate of pay (or if their pay varies, their average pay in the previous 52 working weeks, or 12 working weeks for employers in Northern Ireland). This will include any contractual overtime, commission or fees. It will mean you having to 'top up' the 80% grant by paying the additional 20% yourself.

In some circumstances, you can refuse or cancel their leave, or require them to take leave while furloughed. If they usually work bank holidays, you can agree that this is included in the grant payment. If they usually take the bank holiday as leave, you would either have to top up their usual holiday pay, or give them a day of holiday in lieu.

Note, though, that you shouldn't furlough employees simply because they are on holiday. You should only furlough employees because your operations have been affected by COVID-19 and not just because they're on paid leave.

Will annual leave and continuous employment accrue while on furlough leave?

Yes.

Can I continue with any pre-existing disciplinary or grievance procedure while they're on furlough leave?

Yes.

How should claims be calculated?

Step 1: Work out the reference date

You need to identify the employee's reference date to know which calculation rules you should use. Some calculations use the employee's reference date in the calculation steps.

The employee's reference date is 19 March 2020 if:

  • you made a payment of earnings to the employee in the 2019/20 tax year (and reported this to HMRC on a Real Time Information (RTI) Full Payment Submission (FPS) on or before 19 March 2020);
  • you made a valid Coronavirus Job Retention Scheme claim for the employee for a claim period ending on or before 31 October 2020; or
  • the employee was on their previous employer's payroll on 28 February 2020, was transferred to you by that employer after 28 February 2020 and the TUPE succession rules applied to the transfer.

Otherwise, the employee's reference date is 30 October 2020, if:

  • you made a payment of earnings to the employee which was reported to HMRC on an RTI FPS between 20 March 2020 and 30 October 2020 (inclusive);
  • you made a valid Coronavirus Job Retention Scheme claim for the employee for a claim period between 1 November 2020 and 30 April 2021 (inclusive); or
  • the employee was on their previous employer's payroll on or before 30 October 2020, was transferred to you by that employer after 31 August 2020 and the TUPE succession rules applied to the transfer.

Where neither 19 March 2020 nor 30 October 2020 reference dates apply, the employee is not eligible for claim periods starting before 1 May 2021. If you made a payment of earnings to the employee that as reported to HMRC on an RTI FPS between 31 October 2020 and 2 March 2021 (inclusive) they may be eligible for periods starting on or after 1 May 2021. If so, their reference date will be 2 March 2021.

Step 2: Work out your employee's usual wage

Your calculation should include any contractual (i.e. those you're obliged to make to an employee because it's in their contract) payments that you must pay staff. E.g.:

  • Wages
  • Compulsory overtime
  • Fees
  • Commission or bonuses
  • Monetary benefits
  • Piece rate payments

Don't include any of the above payments if they are discretionary (i.e. if the individual isn't entitled to receive them under their contract).

Also, don't include provision for any non-monetary benefits. This includes taxable benefits in kind, such as:

  • Company vehicles
  • Private health insurance
  • Non-business travel
  • Other business assets that have significant personal use
  • Benefits received under salary sacrifice schemes (including pension contributions) that reduce an employee's taxable pay

All of any grant received to cover an employee's subsidised furlough pay must be paid to them in the form of money. You can't net off any part of it to pay for providing benefits or a salary sacrifice scheme.

If you provide benefits to furloughed employees, including through a salary sacrifice scheme, these benefits should be in addition to the wages that must be paid under the terms of the Job Retention Scheme, unless the employee's contract is amended.

Normally, an employee cannot switch freely out of most salary sacrifice schemes unless there is a life event. HMRC agrees that coronavirus counts as a life event that could warrant changes to salary sacrifice arrangements, if the relevant employment contract is updated accordingly.

The calculation of the usual wages uses a reference date, which is different depending on when the employee was reported on your payroll and on how they are paid:

1. Calculating the relevant percentage for those whose pay is fixed:

19 March 2020 reference date: Use their actual salary before tax, paid in the last salary period ending on or before 19 March, including any regular, contractual payments for overtime, commission, etc.

30 October 2020 reference date: Use their actual salary before tax, paid in the last salary period ending on or before 30 October 2020, including any regular, contractual payments for overtime, commission, etc.

2 March 2021 reference date: Use their actual salary before tax, paid in the last salary period ending on or before 30 October 2020, including any regular, contractual payments for overtime, commission, etc.

In each case, don't include any conditional or discretionary commission, bonuses, tips or fees.

Employees who were first reported on your payroll between 31 October 2020 and 2 March 2021 can be furloughed from 1 May 2021. The government hasn't yet published updated guidance on how you should calculate these employees' wages.

2. Calculating the relevant percentage for those whose pay varies:

19 March 2020 reference date: If you've employed them for 12 months before the claim, you should claim the higher of either:

  • the same monthly amount paid last year in the equivalent month(s); or
  • average monthly earnings from the 2019-20 tax year.

These amounts should include any contractual payments for overtime, fees, commission or bonuses for the individual paid over the relevant period.

If you've employed them for less than 12 months, you can claim for an average of their monthly earnings since they started work. If they've been employed for less than a month, use a pro-rata calculation for their earnings so far to claim.

30 October 2020 reference date: You should claim the average monthly earnings between (these dates are inclusive) the start date of their employment or 6 April 2020 (whichever is later), and the day before they were first furloughed on or after 1 November 2020.

These amounts should include any contractual payments for overtime, fees, commission or bonuses for the individual paid over the relevant period.

2 March 2021 reference date: You should claim the average monthly earnings between (these dates are inclusive) the start date of their employment or 6 April 2020 (whichever is later), and the day before they were first furloughed on or after 1 May 2021.

These amounts should include any contractual payments for overtime, fees, commission or bonuses for the individual paid over the relevant period.

Claiming for a member of a Limited Liability Partnership: You must only include payments that are:

  • fixed; or
  • variable, but based on the overall amount of the profits or losses of the LLP; or
  • not affected by the overall amount of the LLP's profits or losses.

Claiming for employees returning from statutory family leave: This includes employees returning from maternity leave, paternity leave, shared parental leave, adoption leave, parental bereavement leave or unpaid parental leave. Their salary should be paid based on earnings received before going on family leave, and not earnings they received while on family leave.

Claiming for employees or workers returning from a period of sick leave: Their salary should be paid based on earnings received before going on sick leave and not the sick pay received while absent on sick leave. Claims for those on variable pay, returning to work after time off sick, should be calculated using the normal rules for employees whose pay varies.

Claiming for those returning from a period of unpaid leave or unpaid sabbatical: For those on fixed pay, their salary should be paid based on earnings they would have received had they been on paid leave.

Step 3: Flexible furlough calculations

If your employee is flexibly furloughed, you'll also need to work out their usual hours and the number of working and furloughed hours for them. The calculation of usual hours differs depending on whether they work fixed hours (i.e. they are contracted for a fixed number of hours and their pay does not vary according to the number of hours they work) or variable hours (i.e. either they are not contracted to work a fixed number of hours or their pay depends on the number of hours they work).

See Steps to take before calculating your claim for more.

You can use the government guide on calculating your claim and its Example calculations to help.

How do I decide on the length of my claim period?

Your claim period is the days you are claiming a grant for.

Claim periods 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're claiming for includes either the first or last day of the calendar month, and you've already claimed for the period ending immediately before it. 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. You should calculate each of those claims separately.

You can only make one claim for any period so you must include all your furloughed or flexibly furloughed staff in one claim, even if you pay them at different times. If you make more than one claim, your subsequent claim can't overlap with any other claim that you make and the claim periods must follow on from each other with no gaps in between the dates.

You can claim before, during or after you process your payroll as long as your claim is submitted by the relevant Claim deadline; however, there will be a short period at the beginning of the extended scheme for which businesses will have to claim in arrears. You cannot make your claim more than 14 days before your claim period end date, but you can make your claim more than 14 days in advance of the pay date (for example, if you pay your employee in arrears). You do not have to wait until the end of a claim period to make your next claim.

When claiming for staff who are flexibly furloughed, don't claim until you're sure of the exact number of hours they'll have worked during the claim period. If you claim in advance and your employee works for more hours than you claimed for, you'll have to pay some of the grant back to HMRC.

See GOV.UK for more about claim periods.

When and how should I make a claim?

You can make claims through the Claim portal.

Claims relating to each month should be submitted by the applicable Claim deadline.

Once you've claimed, you'll get a claim reference number. You must keep a copy of all records for 6 years, including the amount claimed and claim period for each furloughed individual; the claim reference number for your records; and your calculations in case HMRC need more information about your claim. For flexibly furloughed individuals, you'll also need to keep records of their usual hours worked, including any calculations that were required, and of their actual hours worked.

Grants payments are anticipated to be made 6 working days after you make your claim.

See the claims guidance for more.

What happens if I make a mistake when making a claim?

If you make a mistake in a claim that results in an overpayment, you must pay this back to HMRC. You can tell them about this as part of your next claim. You will be asked when making your claim whether you need to adjust the amount down to take account of a previous error. Your new claim amount will be reduced accordingly. You won't need to do anything else, but should keep a record of this adjustment for 6 years.

If you've made a mistake that means you've underclaimed, contact HMRC to amend your claim. They may need to do extra checks. You will only be able to increase the amount of your claim if you amend the claim within 28 calendar days after the month the claim relates to (unless this falls on a weekend and then it is the next working day).

If you make a mistake but don't plan to submit further claims, you will need to obtain a payment reference number. See paying HMRC back for more.

What happens if my claim is successful?

You must pay:

  • the individual all the money you receive for their gross pay;
  • the minimum employer's pension contribution into their pension fund; and
  • the associated employer's National Insurance contributions.

Their wages will be subject to Income Tax and National Insurance as usual.

No fees can be charged from this money. If you're unwilling or unable to pay an individual's salary, you must immediately return their grant to HMRC.

Will my details be published?

HMRC will publish the names of employers who make claims under the extended CJRS scheme, along with the amounts claimed. You can ask them not to if you can show that publicising these would result in a serious risk of violence or intimidation to certain individuals. Furloughed staff will be able to see details of claims made for them in their Personal Tax Account on GOV.UK.

When the scheme ends

When the government ends the scheme, you must make a decision, depending on your circumstances, about whether you retain your furloughed staff.

If you can't, you can consider putting employees on short-time working or lay off, others on unpaid leave, or if necessary, start a redundancy process.

Statutory sick pay (SSP) during coronavirus

Qualifying for SSP

This remains the same as before the pandemic. In a nutshell, a worker or employee will qualify to receive statutory sick pay (SSP) if they are already working for you, earn an average of at least £120 per week, and are ill for at least 4 days in a row (including any days they are not working). They must also inform you that they are sick and give you any required medical evidence within the time limit you set.

When SSP must be paid due to coronavirus

If they qualify for SSP, it must be paid if they are unable to work because they are self-isolating for one of the following reasons:

  • They, or someone they live with, have symptoms of coronavirus.
  • They, or someone they live with, have tested positive for coronavirus (applicable since 5 August 2020).
  • If they're shielding and have had a letter from the NHS or a GP telling them to do so (but only during periods where shielding hasn't been paused).
  • They've been notified by the NHS or public health authorities that they've come into contact with someone with coronavirus.
  • Someone in their support bubble (or extended household in Scotland or Wales) but not their own household has symptoms (applicable since 6 July 2020).
  • They've been told by a medical professional to self-isolate for 14 days before visiting hospital for an operation or medical treatment (applicable since 26 August 2020).

Before the pandemic, SSP was only payable from the 4th day of sick leave. However, for all of the above, SSP will be payable from the first day that they're unable to work.

The Coronavirus Statutory Sick Pay Rebate Scheme

This scheme will repay UK businesses the statutory sick pay (SSP) they've paid to eligible workers.

Rules of the scheme

  • Workers must be eligible for SSP – i.e.: already working for you, earning an average of at least £120 per week and been ill for at least 4 days in a row (including any days they are not working, e.g. the weekend).
  • They must have also have qualified to receive SSP due to coronavirus (see above) and received it.
  • You must have a PAYE payroll scheme that was created on or before 28 February 2020 and fewer than 250 employees.

Payments will be limited to a maximum of 2 weeks, starting from the first day they are sick. Different start dates for claiming back SSP will apply depending on when legislation came into force (see above).

Claims will be limited to recovering no more than the current SSP rate of £95.85 per week and you won't need a fit note from a doctor.

You must keep a record of all claims made to the scheme.

See GOV.UK for more information and to make a claim.

Legal obligations for employers and staff regarding self-isolation

Since 28 September 2020, there is a legal obligation on you to ensure your staff don't breach self-isolation rules in order to work for you. There are also notification obligations on your staff. The obligations currently apply to all employers in England, though similar requirements are expected soon in Wales and possibly the other UK nations.

When the obligations apply

The obligations apply when your staff member is told to self-isolate due to:

  • having tested positive for COVID-19;
  • having had close contact with someone who has; or
  • returning to England from a country on the quarantine list.

The first 2 of these apply where the staff member is told to do so by either the health service or local authority. They do not apply if they were told to self-isolate through the NHS COVID-19 App.

Your obligations

If you're aware that a member of staff (including any agency workers) must self-isolate, you must allow them to remain in the place where they're self-isolating. You must not require them to leave it to attend work. They can still work if they're well and can do so from where they are (e.g. home).

Where an agency worker has informed you that they need to self-isolate, you must pass that information on to either the principal or the employer (depending on which one of these you are) and the agency. If, instead, either of those are informed by the agency worker, they must inform you.

Failing to meet these obligations could lead to a fine of £1,000, rising to as much as £10,000 for serious or repeat offences.

Obligations for your staff

Staff who know they must self-isolate and who don't already work from their isolation location during the isolation period, must tell you that they are required to self-isolate, along with when their isolation period will start and end. They must do this as soon as reasonably possible, and before they're due to start work during the isolation period.

Agency workers must inform one of their employer, the principal or the agency.

Failure to meet these obligations could lead to a fine of £50.

Health and safety

See our Coronavirus (COVID-19) Health & Safety section to find out about new and existing responsibilities for protecting your staff during the pandemic.

Vaccinations and the workplace

As more and more people are offered vaccines, you may be wondering if this affects any of your responsibilities as an employer.

Can employers require all staff to be vaccinated?

Probably not. Although the government has powers to prevent and control the spread of infectious diseases, it doesn't have power to require people to undergo medical treatment. This includes vaccination.

The government's Green Book on immunisation states that consent from the individual is needed before any medical treatment, including all vaccines.

This makes it difficult for you to automatically insist on it. Acas confirms that, except as mentioned below, 'There's currently no other law that says people must have the vaccine, even if an employer would prefer someone to have it'.

The one exception is that, although the government previously emphasised repeatedly that people won't be forced to have a vaccine if they don't want one, from 11 November, people working or volunteering in certain Care Quality Commission registered care homes in England must be vaccinated by law, unless exempt. A further consultation is expected on making COVID-19 and flu vaccination a condition of deployment in healthcare and the wider social care sector.

Can employers require certain staff to be vaccinated?

Possibly, but the position isn't straightforward. The Health and Safety at Work Act 1974 does require you to take all reasonably practicable steps to ensure the health, safety and welfare at work of all your employees. A similar duty exists under the general law. On its own, that's probably still not enough to justify mandatory vaccination, but it might be relevant background in some cases.

That's because an employee has a duty under the general law to obey the lawful and reasonable orders of their employer. Reasonableness is a question of degree. Relevant considerations may include the nature of the role, the circumstances of each employee, the risks to other staff or people they encounter, and the workplace's size/layout.

On this basis, it may be reasonable – for example – to require healthcare staff or teachers and support staff to be vaccinated. But it's less likely to be reasonable for staff who have limited contact with others and for whom other protective measures can be put in place.

A key question is likely to be whether vaccination provides greater protection than other measures. It's not yet known for sure that vaccination reduces or prevents transmission of COVID-19 (trials are ongoing). Public Health England states that the evidence on this is 'less clear', but that vaccination shortens the viral shedding period so it is 'less likely' that vaccinated workers will pass on COVID-19 to others. Further, it is unknown how long the protection offered by vaccination will last. This makes it more difficult to argue that compulsory vaccination is proportionate to keep others safe.

It's also relevant that many legal restrictions have now been lifted and the government is no longer instructing people to work from home if they can. It is less likely to be reasonable to impose a mandatory vaccination requirement when the government expects that businesses will need to take fewer precautions to manage the risk of COVID-19.

Unfortunately there are no easy answers here – you'll need to get legal advice if you think requiring vaccination may be justified as it'll depend hugely on your circumstances.

Can employers put vaccination requirements into staff contracts?

You might want to change an employee's contract to add a compulsory vaccination requirement. However, this is potentially problematic. You'll need their agreement – if you make the change without it, you'll be in breach of contract and the original terms of the contract will remain in place. The employee then has options:

  • They can waive the breach by continuing to work without complaint under the new terms.
  • They can work under the new terms under protest and claim for breach of contract. If the change imposed is substantial, you might be deemed to have dismissed the employee, meaning they could also claim for unfair dismissal.
  • If the breach of contract is fundamental, they can resign and claim for constructive dismissal.

It may be easier to only insert the vaccination requirement into contracts for new staff. However, unless you're recruiting significant numbers of people, this is unlikely to result in any greater protection for your overall workforce. It potentially also opens you up to discrimination claims (more on this below).

In short, it's currently risky – don't try and make vaccinations a part of staff contracts without getting legal advice first.

If you want to impose a mandatory vaccination requirement, you must first:

  • Undertake a detailed risk assessment to evidence why COVID-19 vaccination is required in addition to compliance with the COVID-secure guidelines already in place.
  • Consult with workplace representatives or trade unions where applicable.

You must also recognise that vaccination may not be suitable for all and make allowances for that. For example:

  • Public Health England advises that individuals with immune system disorders may not respond well to the vaccine; that individuals with immunosuppression may not make a full immune response to vaccination against COVID-19; and that individuals experiencing prolonged COVID-19 symptoms ('long COVID') may need to defer vaccination to avoid incorrect attribution of any change in the individual's underlying condition to the vaccine.
  • A very small number of people cannot have the vaccine, such as those with severe allergies.
  • While pregnant women are being offered the vaccine, certain types of vaccine are being recommended to them over others.

Indirect discrimination

A mandatory vaccination requirement for employees is likely to amount to a provision, criterion or practice that puts individuals with a protected characteristic at a particular disadvantage compared with others who do not share that protected characteristic. In other words, it's likely to break section 19 of the Equality Act 2010.

A vaccination requirement could put employees with one of the following protected characteristics at a particular disadvantage:

  • Disability

Some of the vaccines in production are not suitable for certain individuals with suppressed immune systems. Some individuals might be advised not to have the vaccine due to a medical condition or may have severe trypanophobia (fear of needles); both could mean they have a disability and be protected under the Equality Act 2010 if they refuse the vaccine.

Note, though, that those with a history of anaphylaxis to food, an identified drug or vaccine, or an insect sting, have been advised that they can still receive any COVID-19 vaccine if they're not known to be allergic to any of its components. All vaccination sites should have equipment for managing an anaphylactic reaction.

  • Pregnancy or maternity

Current government advice is that pregnant women should be offered a vaccine, but that ideally they should not be offered the AstraZeneca vaccine. This could potentially lead to delays in getting vaccinated. Indirect discrimination does not apply to the protected characteristic of pregnancy and maternity; however, a woman who is disadvantaged by her employer's vaccination policy due to pregnancy or maternity could bring an indirect sex discrimination claim.

  • Race

Research by SAGE published in December 2020 showed marked differences between different ethnic groups in willingness to receive the COVID-19 vaccine.

  • Religion or belief

It's possible that the protected characteristic of religious or philosophical belief could protect certain religious or moral objections to the vaccine.

Note that:

  • The COVID-19 vaccines currently being used in the UK don't use pork gelatine and are endorsed by the British Islamic Medical Association, Hindu Council UK, and the Board of Deputies of British Jews (that doesn't, though, stop religious objections on other grounds).
  • Shark liver oil is being considered for use in one of the new vaccines. While veganism is a protected belief, the Vegan Society accepts that vaccination 'will play a fundamental role in tackling the pandemic and saving lives' and encourages vegans to look after their health and that of others. Of course, though, the Vegan Society doesn't represent all vegans.
  • Other employees may reject the vaccine because embryonic tissue was used to test or develop the vaccine.
  • Anti-vaccination beliefs based on a wide variety of conspiracy theories may not be protected as a philosophical belief. That's because there isn't an adequately coherent belief system behind them and such beliefs may not be worthy of respect in a democratic society. That doesn't stop such beliefs being protected if the basis for them exists less at the fringes.

Avoiding indirect discrimination

You would need to ensure that any mandatory vaccination requirement is justifiable as a proportionate means of achieving a legitimate aim, or is couched in terms that allow for exceptions.

The burden is on you to show justification. You must show that:

  • You were pursuing an identified legitimate aim. Protecting the health and safety of staff, service users and third parties will very likely be an uncontroversial legitimate aim for employers.
  • The measures taken to achieve that aim were appropriate and proportionate. You must show that your actions actually contribute to the pursuit of the legitimate aim. While there is currently insufficient evidence to support the position that vaccination prevents transmission in the workplace, this may well be established in the future. In any event, it would be difficult to criticise an employer for trying to reduce transmission in its workplace by encouraging vaccination, even if it was subsequently shown that this had little or no impact.

To establish that a vaccination policy was a proportionate means of achieving your legitimate aim, you must demonstrate that the measures taken were 'reasonably necessary' to meet the legitimate aim. However, you do not need to show that you had no alternative course of action. Your actions will not be considered reasonably necessary if you could have used less discriminatory means of achieving the legitimate aim.

On this basis, proportionality may be a more difficult hurdle for employers at the current time. Compliance with the COVID-secure guidelines and introducing regular testing could be a more effective and less discriminatory means of achieving a health and safety legitimate aim.

Direct discrimination

An employer's actions in requiring vaccination of a particular employee, or in treating them less favourably because they are unvaccinated, could directly discriminate against them and breach section 13 of the Equality Act 2010.

Unlike indirect discrimination, direct discrimination cannot be justified unless it is on the ground of age.

Can employers take action against staff who refuse to be vaccinated?

Assuming you've legitimately introduced a compulsory vaccination policy or a contractual vaccination requirement, then, in theory, yes you can. But it's not without risks.

Obviously, you can't physically enforce a vaccination – that would be a criminal offence. Also, if you compel an employee to get a vaccine and they then suffer an adverse reaction, they could try and bring a personal injury claim against you.

The action you might consider is starting disciplinary proceedings.

You'll have to properly take into account the employee's circumstances. There are many reasons why they might reasonably refuse a vaccine: e.g. medical advice, religious or philosophical belief, pregnancy, disability, wanting to keep control over their medical choices or wanting to wait for more evidence of safety.

The critical point is that you must always allow for exceptions. Listen to any concerns and objections and take them seriously. Even if you've put in place a policy or contractual requirement, you won't be entitled to act on it if your employee's refusal is reasonable in all the circumstances.

Also, any policy or contractual requirement about vaccination that adversely affects people from a protected group (race, sex, disability and religion/belief being the most likely) will potentially be indirectly discriminatory. A dismissal resulting from the implementation of such a policy or requirement may well be unfair.

Even where an employer does not mandate vaccination, it should ensure that its workplace policies do not indirectly discriminate against unvaccinated employees. For example, it is possible (depending on a whole range of factors, including the efficacy of the vaccine) that employers could relax COVID-secure protective measures only for vaccinated staff. For employees who cannot be vaccinated, it may be appropriate to continue with appropriate protective measures (to protect both them and any unvaccinated colleagues, patients, clients or customers) or consider redeployment.

Pressuring employees to be vaccinated, through threats of disciplinary action, carries very real and potentially significant legal and financial risks. It could also negatively affect your business reputation and staff morale.

A better approach is to encourage staff to be vaccinated – educate them on the benefits of vaccination by providing impartial, factual information to help them make an informed decision.

Can an employer prevent unvaccinated employees from entering the workplace?

You should carefully consider whether it is appropriate to prevent unvaccinated staff from entering your workplace before making a decision. Current government advice is clear that the vaccination status of a workforce has no impact on the COVID-secure guidelines you should follow. Further, the extent to which vaccination reduces the risk of transmission is still under review. On the other hand, employers have health and safety obligations to their employees and those entering their workplaces and there are serious consequences for non-compliance.

Where an unvaccinated employee is retained under a zero-hours contract, you could simply not offer future work to them. However, you should consider whether there are any potential discrimination risks.

In relation to salaried or fixed-hours employees, you could consider all the alternatives to vaccination, such as:

  • allowing them to continue to work from home, if possible;
  • temporarily changing their role or responsibilities to minimise risk in the workplace as far as possible;
  • regular testing; and
  • regular health and safety reviews to ensure that you are up to date with, and properly implementing, the COVID-secure guidelines for your particular industry.

However, you must ensure that employees working remotely do not suffer any detriment, and consider that vaccinated employees might consider it a detriment to be required to come back to work. To facilitate employee relations, a hybrid working arrangement for all staff may be preferable.

What is an employee entitled to be paid if they refuse to be vaccinated?

The issue of pay for employees who refuse the vaccine should only arise where an employer decides that unvaccinated staff should not enter the workforce.

Employers should pay employees who can undertake their role remotely as normal. However, where an employee is unable to carry out their role remotely, the issue of pay is problematic. The employee will argue that they are willing and able to work and should therefore be paid in full. However, the employer's position will be that the employee cannot work for health and safety reasons.

Statutory sick pay (SSP) is not available where an employee is fit for work but unable to work because their employer requires them to be vaccinated. Employees who were shielding as they are within the CEV group were an exception to this, but CEV employees have not been advised to shield in England and Wales since 31 March 2021.

It may be possible for the employer to furlough the employee under the Coronavirus Job Retention Scheme, but that scheme ends on 30 September 2021.

If the employer suspends the employee for disciplinary reasons, they are entitled to be paid in full until the outcome of the disciplinary procedure.

Where an employee is unable to be vaccinated for medical reasons, or refuses vaccination on, for example, religion or belief grounds, it is possible that the employee's inability to work is due to an 'unavoidable impediment' or external constraint and that the employer must continue to pay them.

Can employers relax safety measures after vaccination?

You should be cautious about treating the vaccine as a mechanism to remove other measures. Instead, continue to follow government guidance and monitor it for changes.

However, vaccination might alter your approach for some clinically highly vulnerable staff. Having the vaccine means these workers can better protect themselves and, subject to an individual risk assessment and both vaccine doses, they may be able to return to the workplace. However, you should give extra consideration to their individual needs and support them in taking any additional precautions advised by their clinicians.

Finally, keep in mind that you may need to take extra steps to protect any staff who have a genuine medical reason that prevents vaccination.

Are there data protection implications?

If you collect any information about whether employees have (or haven't) been vaccinated, you must handle it as special category data in accordance with the Data Protection Act 2018. The ICO have recently added guidance on vaccinations to their 'Data protection and coronavirus information hub' to help you do this.

Bringing staff back to the workplace and handling refusals

Now that many government restrictions have been lifted, you may want or need to bring staff into the workplace to work. Understandably, staff may remain reluctant or unwilling to return.

Primary objectives

To avoid any disputes, genuinely consider all objections. Put everything in writing. If necessary, make further enquiries to confirm or establish facts. The key principle guiding your decisions should be the safety of your staff, particularly those with medical conditions that mean, or may mean, they're at greater risk to/from infection. You're ultimately liable for their wellbeing.

Using a grievance procedure

Any objection should be treated as a grievance. Acas say their code of practice, which you can follow alongside your own grievance procedure, still applies. However, consider whether you can do so fairly in the current situation. In particular:

  • Consider the health of everyone involved in the procedure.
  • Although you are no longer required to observe social distancing rules, is it appropriate to use video technology given the grievance concerns returning to the workplace? Do all those involved have access to it? Does anyone have a disability or other issue that makes using it difficult, and if so, can you make reasonable adjustments?
  • Will any necessary information (e.g. medical evidence) be obtainable?

Go through the options with all those involved. If you decide to proceed, put your reasons why in writing.

Employers in Scotland are expected to follow the principles of the Fair Work Convention's Framework, for all decisions.

Legal protection

Dismissing an employee is automatically unfair if there were circumstances of danger that the employee reasonably believed to be serious and imminent, and:

  • if they couldn't reasonably have been expected to avoid it, they left (or proposed to leave) or (while the danger persisted) refused to return, or
  • they took (or proposed to take) appropriate steps to protect themselves or others.

Employees and workers are also protected in these circumstances from being subjected to a detriment (e.g. suspension, deducted pay, or – in the case of a worker – having their contract terminated). An employee can, therefore, refuse to attend work if:

  • they believed there were circumstances of serious and imminent danger;
  • that was a reasonable belief judged at the time of the refusal;
  • the employee could not reasonably be expected to avoid the danger; and
  • staying away from work was an appropriate step to take to protect themselves or others from the danger, or the employee took appropriate steps to communicate their concerns to their employer by appropriate means.

Employment Tribunals have considered several cases on this issue in the context of the COVID-19 pandemic. These concern events in the early stages of the pandemic, when less was known about the virus and vaccines hadn't been developed and approved.

They show the importance for employers of being able to demonstrate that they have implemented appropriate COVID-related health and safety measures. This is now somewhat easier since the government published its sector-specific guidance and the HSE published guidance on making workplaces COVID-secure.

The cases also confirm that the valid exercise of the right to stay away from work is not just a question of your staff expressing vague anxieties about their working environment:

  • They'll normally be expected to explain clearly why they believe their workplace is dangerous and give you the opportunity to explain the steps you have in place to protect them and give you time to consider what else you can do to protect them or deal with their concerns.
  • They must also be willing to take individual precautions to protect themselves and follow all reasonable management instructions put in place to protect them.
  • They must be able to show that the risk is serious and imminent despite anything they and you can do to reduce it.

At-risk staff

Extremely vulnerable staff

Requiring such staff to return to the workplace may expose you to a health and safety liability risk, as they may need more than the usual safety measures to protect them. If the risks cannot be averted or minimised, it may be reasonable for them to claim that there's an ongoing serious and imminent danger if they return to the workplace. You should first consider limiting their work activities or duties, otherwise consider either asking them to remain at home or making use of the furlough scheme.

See the Government guidance for each country for more:

Vulnerable staff or those with other potentially dangerous health conditions

These generally include any staff who are regarded by the NHS as at moderate risk. They're 'clinically vulnerable', rather than 'extremely clinically vulnerable', meaning they may be at greater risk of being infected and/or suffering an adverse outcome if they get infected. This will usually include those who:

  • are 70 or older (particularly if they are male)
  • are obese or have a high body mass index (40 or above)
  • are pregnant
  • have a disability
  • have diabetes, heart, kidney or liver disease or a lung condition
  • have a condition affecting the brain or nerves
  • have a condition that means they have a high risk of getting infections
  • are taking medicine that can affect the immune system

If the risks cannot be averted or minimised, it may be reasonable for them to claim that there's an ongoing serious and imminent danger if they return to the workplace. You should first consider limiting their work activities or duties, otherwise consider either asking them to remain at home or making use of the furlough scheme.

Members of the BAME community

Medical evidence suggests that Black, Asian, and Minority Ethnic people have a far higher risk of death from COVID-19.

To avoid potential liability under race discrimination laws, ensure that any decisions you make about returning to the workplace are fair and consistent, unless you have a good business reason for different treatment. Taking extra precautions for BAME staff compared to (non-vulnerable) white staff could be viewed as indirect discrimination – however, it is likely to be justified on the basis of the current medical research.

If the risks cannot be averted or minimised, it may be reasonable for them to claim that there's an ongoing serious and imminent danger if they return to the workplace. You should first consider limiting their work activities or duties, otherwise consider either asking them to remain at home or making use of the furlough scheme.

See our sections on race discrimination in England, Wales and Scotland, and Northern Ireland.

Options for at-risk staff

If allowing or requiring such staff to return to the workplace, remember you are liable for their health and safety. You must assess the level of risk, which ought to be acceptable to both you and them.

You should also ensure that you reduce the number of people they come into contact with.

Options include offering the safest available on-site roles and/or agreeing to adjust their working times or limiting their work activities or duties.

If this isn't possible and the risk remains unacceptably high, homeworking might be a possibility – if it isn't, remember that you could potentially agree with them to temporarily do alternative work from home.

Alternatively, you can suggest they take unpaid leave or use their holiday allowance. Note that you can lay-off employees for a limited time if their contract gives you a right to do so.

If they want to return but you want them to stay at home, they'll be entitled to full pay if they can work from home.

Making use of the furlough scheme is another option.

Disabilities

Staff who are extremely vulnerable, vulnerable or have other potentially dangerous health conditions, could have a disability that's recognised under Equality Law. If they do, you're legally obliged to make reasonable adjustments. This probably includes letting them stay at home. Whether or not that means doing so on full pay is unclear, unless there's a serious and imminent danger to them returning to the workplace, in which case they must remain on full pay, or they can work from home.

It's also possible that requiring them to return could amount to indirect discrimination – this can be justified, though it's likely to be difficult. See our sections on Disability discrimination in England, Wales and Scotland and Northern Ireland.

If the condition isn't recognised as a disability under equality law, you don't have to make adjustments like letting them stay at home. But to be certain (and in line with your health and safety obligations), consider getting a medical report from their GP. If the report is inconclusive, follow it up with more questions.

If medical evidence suggests they're at greater risk, check this against your workplace risk assessment. If you both agree on a return, take the same precautions stated above.

Financial support is available for staff living in England, Scotland or Wales who have a disability or health condition and are returning to their workplace. There's a different system in Northern Ireland

Staff living with someone who's extremely vulnerable or vulnerable

Government guidance for businesses in England states that "particular attention should also be paid to people who live with extremely vulnerable individuals". What this means in practice isn't clear.

You could choose to explore the same options described above for at-risk staff.

Again, remember that the person with whom they live may have a disability that's recognised under Equality law – take care here, as you can't treat staff less favourably than others based on the disability of someone they're associated with.

If they live with someone for whom they have caring responsibilities, note that you can use the furlough scheme to furlough them regardless of whether or not your business has been forced to close or faces reduced demand as a result of coronavirus.

Staff suffering from anxiety

Some staff are likely to be anxious about returning amid coronavirus. Depending on the severity, anxiety can be a recognised disability.

If so, you're legally obliged to make reasonable adjustments. This probably includes letting them stay at home. Whether or not that means doing so on full pay is unclear, unless there's a serious and imminent danger to them returning to the workplace, in which case they must remain on full pay, or they can work from home.

Sick leave should be used if they're experiencing stress/anxiety at levels that mean they can't work, so long as they give you a fit note from their doctor.

It's also possible that requiring them to return could amount to indirect discrimination – this can be justified, though it's likely to be difficult. See our sections on Disability discrimination in England, Wales and Scotland and Northern Ireland.

Financial support is available for staff living in England, Scotland or Wales who have a disability or health condition and are returning to their workplace. There's a different system in Northern Ireland

If the condition isn't recognised as a disability under equality law, you don't have to make adjustments like letting them stay at home. But to be certain (and in line with your health and safety obligations), consider getting a medical report from their GP. If the report is inconclusive, follow it up with more questions.

If medical evidence suggests they're at greater risk, check this against your workplace risk assessment. If you both agree on a return, consider the same precautions as those described above for at-risk staff.

Even if their condition isn't classed as a disability, consider delaying their return – they're unlikely to be productive in the workplace, and could be a disruptive influence.

Staff without childcare

You may find that some staff will not let their child return to school and opt to home school them instead.

If this happens, you can (if possible) let them work flexibly. Note that you can also use the furlough scheme to furlough them.

There are other options available only to employees:

  • Unpaid parental leave: they can take leave of up to 4 weeks for each child per year in blocks of at least one week. They must give you at least 21 days' notice. This entitlement applies after a year of working for you. You can be flexible about how much leave they take or notice they give you: put any changes you agree in writing.
  • Unpaid dependent care (or emergency) leave: they can take a reasonable amount (usually 1 or 2 days) of time off to take necessary action to look after their child. It's available no matter how long they've worked for you.

If none of the above is suitable, you can suggest they take unpaid leave or use their holiday allowance. Note that you can lay-off employees for limited time if their contract gives you a right to do so.

Note that you could be liable for sex discrimination if the majority of childcare duties are performed by the child's mother. Ensure that decisions are fair and consistent, unless you have a good business reason for different treatment.

See our sections on sex discrimination in England, Wales and Scotland, and Northern Ireland.

Staff who must use public transport

It's currently unclear if you'll be responsible for the health and safety of staff who must use public transport to commute to work, though general legal opinion is that it's unlikely.

However, you owe employees (rather than, for example, workers or contractors) an unwritten duty of trust and confidence. You mustn't do anything to break this, which may include forcing them to take a risk and travel by public transport. They could resign and claim unfair (constructive) dismissal. However, this is so far untested in court.

You should consider any possible options that might help them avoid public transport, such as:

  • giving them access to bikes or e-scooters;
  • fitting more bike storage points; and
  • making more car parking spaces available.

If there is no other choice but to use public transport, try to let them alter their hours to avoid busy times. If possible, offer them personal protective equipment, e.g. masks, gloves.

If you can't persuade them and they're an employee, consider using short-time working or lay off (note the terms of their contract must allow for this). Otherwise, see if they'll agree to a period of unpaid leave or furlough.

Remember you have to make reasonable adjustments for staff with recognised disabilities, and carry out special risk assessments for those who are pregnant or new mothers – all of these situations require you to take travel into account.

The UK government has published guidance on how to travel safely using various forms of transport. It includes a checklist of how to plan a safe journey. Share this with staff, in case they haven't read it.

Other reasons

If staff object for some other reason and you don't feel it's justified, write to them and tell them the reasons why you disagree.

If their objection was raised using your grievance procedure, inform them of their right to appeal your decision. Otherwise tell them they can raise a formal grievance using your grievance procedure (if they qualify).

Reassure and explore options

Try to reassure or help them to return, though this will depend on what you can reasonably do. E.g.:

  • If you haven't already, show them a copy of your risk assessment and what action you've taken to make the workplace COVID-safe.
  • Give them evidence of the safety changes that've been made to the workplace: videos and photos of the changes, or a training session on any new procedures.
  • Ask if they'd like to speak to a colleague who's already returned.
  • If it's relevant, offer temporary flexible working arrangements (such as earlier/later start-finish times).
  • Offer another safe site they can work at.
  • Offer them a safer role than their present one to do in the meantime.

Agreeing changes

If you agree changes to working conditions that affect the usual terms of their contracts, even for a temporary period, confirm it in writing.

Staff who don't agree to any changes and still won't agree to returning

If nothing you do convinces staff to return, you could:

  • ask or require them to use their annual leave;
  • furlough them, if they're eligible;
  • if they're an employee, use short-time working or lay off, if the terms of their contract say you can do this; or otherwise
  • see if they agree to be put on unpaid leave.

If you can't agree, you may have to issue a management instruction for them to return to the workplace. If they continue to refuse, consider starting disciplinary action against them (unless they're self-employed), warning them that continuous refusals may result in their dismissal.

If all other options fail, redundancy may be the only alternative.

Dealing with staff forced to quarantine after returning from abroad

If your staff spend any time abroad, government rules mean they may have to quarantine (self-isolate) when they return to the UK.

Ask staff to tell you in advance if they plan to travel abroad, even if at that point there is no requirement to quarantine after returning. This will help you to plan and make sure they're fully informed about what'll happen if and when they quarantine – when they need to contact you, what work they might be able to do, whether or not they'll be paid, and if any other arrangements are needed (e.g. staff cover).

Don't put a blanket ban on staff using annual leave to visit a country that will result in a quarantine period when they return, particularly if you have staff who travel abroad to visit close members of their family. Doing so is likely to be unreasonable and will risk discrimination claims.

In some situations, the Test to Release scheme allows people returning to England to reduce their self-isolation period if they pay for a private COVID-19 test and get a negative result. You could discuss making use of this and agree who will pay for it.

Dealing with requests

Don't impose travel rules that treat staff unequally or inconsistently. For example, don't automatically reject leave requests from staff who can't work from home while automatically approving those from staff who can.

You have a right to refuse a request to take annual leave, if you know that the staff member will have to quarantine on their return and you can't accommodate it. Remember that new rules allow up to 4 weeks of annual leave to be carried over into the next 2 holiday years (see below for more on this). But take care – to avoid discrimination claims, ask why they're travelling abroad. It might be more important than a simple holiday.

If a requirement to quarantine is announced after you've approved the employee's leave request, it's possible to cancel it. Unless their contract says otherwise, you'll need to give at least as much notice as the amount of leave being taken. Keep in mind though that it might be unreasonable to do this unless you have a strong business reason, particularly if they've incurred non-refundable holiday costs.

Options for when they return

Currently, those who need to quarantine in this situation aren't eligible to receive statutory sick pay, unless during the quarantine period they become eligible for another reason (e.g. they start showing coronavirus symptoms).

The options are (either alone or in combination):

  • Work from home: for staff who can't usually do this, consider whether there is suitable work you can give them. Note that this may mean temporarily giving them different work. You may need to provide equipment. Ideally, they should be able to do the work with minimal training. While this might seem inconvenient, you should particularly consider it if you have other staff who can ordinarily work from home, as it will help show that you're being fair and consistent in your procedures.
  • Use annual leave: you can ask staff to do this if they have enough of it left. Or, you can require them to do it by giving them the required amount of notice – though since this is double the length of leave you want them to take (unless their contract says otherwise), it may not be a practical option if the destination is added to the quarantine list at short notice. And obviously, both scenarios require them to have enough annual leave left.
  • Use short-time working or lay off: you can only do this if they are an employee and the terms of their contract allow it. Unsurprisingly, if they've been abroad on business then this isn't really a fair option.
  • Take unpaid leave: you can do this if both parties agree and you cannot use short-time working or lay off. Note that employees might be able to make use of their rights to take either unpaid parental leave or unpaid dependent care (or emergency) leave.

Disciplinary action is possible in some situations, but you should take extreme care over this. The requirement to quarantine is the law, so punishing staff for complying with it is unlikely to be fair – unless they have, without good reason, failed to comply with any reasonable requirements that you've put in place. Follow your disciplinary procedure and ideally get legal advice first.

The UK government has published a guide for workers and employers.

Dealing with annual leave during COVID-19

Carrying over holiday

Staff are entitled to at least 5.6 weeks of annual leave per year. Ordinarily, only 1.6 weeks of that can be carried over (if you allow it). Temporary rules (the Working Time (Coronavirus) (Amendment) Regulations) now allow the remaining 4 weeks to be carried over into the next 2 holiday years.

The carry-over right isn't automatic. It only applies where the pandemic has meant that it's not been reasonably possible to take some, or all, of the 4 weeks.

What 'reasonably possible' means isn't completely clear. However, government guidance lists factors you'll be expected to take into account. These include (among others):

  • When your holiday year ends: e.g. if it ended during the height of lockdown and there wasn't time to take leave due to increased workload
  • If business demand has risen due to the pandemic and they've had to continue working to cope with it
  • Their role, e.g. they're a key worker
  • Whether enough staff have been available to provide cover

The guidance doesn't mention movement restrictions and reduced travel options as examples of why taking leave wasn't reasonably possible. This suggests you could refuse holiday carry-over where that's the only reason.

However, elsewhere in the guidance (on requiring leave to be taken while furloughed), it says you should "consider whether any restrictions the worker is under such as the need to socially distance or self-isolate would prevent the worker from resting, or enjoying leisure time, which is the fundamental purpose of holiday" (as defined in law).

It's safer to take a flexible approach – it'll likely also result in more rested and motivated staff.

You should:

  • Give them the chance to take any holiday that can't be carried forward, before the end of your holiday year
  • Take reasonable steps to ensure they can take as much holiday as possible in the correct holiday year
  • Let them use carried-forward holiday first.

You can require staff to take holiday, as long as you give them proper notice (double the length of leave you want them to take). As mentioned above, this might not satisfy the fundamental purpose of holiday. In light of that, it seems the safest time to require holiday to be taken is after the majority of lockdown restrictions are lifted, and not while staff must self-isolate.

Otherwise, staff may claim that this isn't true holiday and shouldn't count as part of their annual leave allowance (which could have a financial effect later if, say, they're made redundant). This is untested in law, and there's scope for a lot of legal argument. Another possible way to reduce the risk is to ask them for their written views or acceptance when giving them notice to take holiday. If they agree or say nothing, this may help you later.

Homeworking

The number of people working from home has soared during the pandemic. See our section on homeworking for the issues you need to think about while staff are working at home.

Staff expenses

There's guidance on How to treat certain expenses and benefits provided to employees during coronavirus.

There's also clarification on Which expenses are taxable for staff working from home due to coronavirus.

Linked to this, the government have announced allowed tax and NIC exemptions for coronavirus-related reimbursed home office expenses, which applied from 11 June to amounts reimbursed on or after that date but before the end of the 2021-22 tax year (5 April 2022).

If you give employees a relevant coronavirus antigen test between 8 December and 5 April 2021, they won't be liable to an Income Tax benefit in kind charge or Class 1A National Insurance contributions.

Furlough and redundancy payments

If you choose to dismiss a furloughed – or flexibly furloughed – employee (e.g. through redundancy), certain statutory payments must be calculated using their normal (pre-furlough) pay and not their (reduced) furlough pay.

This applies to redundancy payments, along with other statutory payments linked to ending an employee's employment (usually a multiple of a week's pay). The payments covered are:

  • Statutory notice pay
  • Statutory redundancy pay
  • Pay for time off taken by the employee to look for new employment or arrange training, following notice of dismissal
  • The statutory amount payable if you fail to provide an employee with written reasons for their dismissal
  • Statutory compensation for unfair dismissal
  • The statutory amount payable if you're unsuccessful in an unfair dismissal claim and fail to comply with a tribunal or court order to reinstate or re-engage the employee.

The new legislation explains how to calculate the above payments, including if the employee's pay or hours vary. In essence, though, for the calculation of a week's pay, an employee's furloughed hours are treated as if they were normal working hours. The pay related to those furloughed hours is treated as if they'd been worked, ignoring any reduction made because the employee was furloughed.

Note that since 1 December, you can't claim from the Coronavirus Job Retention Scheme for someone who is serving either a statutory or contractual notice period.

Amendments to right-to-work checks

Temporarily, right to work checks can be made:

  • Via video call; or
  • By job applicants and existing workers sending scans or photos of documents via email or a mobile app, rather than sending originals.

You must still make the check and can use the Employer Checking Service where possible. The government has also updated its right to work guides.

These temporary measures will end on 31 August 2021 (extended from 20 June). After that, you will need to see the originals of documents (i.e. in person), unless you can use the Employer Checking Service.

Note, however, that there's no need to redo any checks that you made using the temporary measures (provided you did so properly).

Data protection and coronavirus

The Information Commissioner's Office has created an information hub with guidance on how to tackle data protection issues regarding COVID-19.

You shouldn't ignore data protection issues during the pandemic – but if you're concerned that your data protection practices might not meet your usual standards or about delayed responses to information rights requests, the ICO have said they won't penalise organisations that they know need to prioritise other areas or adapt their usual approach.

Temporary changes to criminal record checks

England & Wales

The Disclosure and Barring Service has temporarily changed its guidelines for ID checking and subject access requests.

Also, people in eligible roles will be given free-of-charge DBS checks and/or a fast-track emergency checks.

They have also published factsheets and updated guidelines.

Scotland

Disclosure Scotland has suspended the payment of fees for urgent applications of certain coronavirus response workers, until 25 March 2022. Any urgent applications can be made online.

Telephone and video Employment Tribunal hearings

In England, Wales and Scotland tribunal hearings are either being postponed or conducted by telephone and video conferencing due the pandemic.

There is a guide on HMCTS telephone and video hearings during coronavirus outbreak.

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