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 they're severely 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 due to end on 31 October 2020. However, it has now been extended until 31 March 2021.

The extended scheme will operate broadly as the previous scheme did (see the archived government guidance), with businesses being paid upfront to cover wages costs.

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

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 31 March 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 that's severely 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 and were on your payroll as of 30 October 2020 (and an RTI payment submission for the person was notified to HMRC between 20 March 2020 and 30 October 2020):

  • 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.

It doesn't apply to self-employed staff.

More information about these categories of eligible staff is available in 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?

Staff that were on the payroll on 23 September 2020 who 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. 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 either their old employer or new employer on 30 October 2020; and
  • on a PAYE Real Time Information (RTI) submission to HMRC, by their old or new employer between 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee.

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?

The government will pay 80% of wages up to a cap of £2,500. You have to pay the employer's 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's NICs in respect of the 80%. The government intends to review whether employers should be required to make a greater contribution from 1 February 2021.

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 £2,500 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 employees who are clinically extremely vulnerable or at the highest risk of severe illness from COVID-19.

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?

You should first 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.

Calculating the relevant percentage for those whose pay is fixed:

For staff who were eligible under the original scheme (i.e. up until 31 October), even if you didn't claim for them: 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.

For staff who were not eligible under original scheme: 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 both cases, don't include any conditional or discretionary commission, bonuses, tips or fees.

Calculating the relevant percentage for those whose pay varies:

For staff who were eligible under the original scheme (i.e. up until 31 October), even if you didn't claim for them: 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.

For staff who were not eligible under the original scheme: 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 their scheme extension furlough periods begins.

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.

Claiming for flexibly furloughed staff: 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 can be made in arrears for the period from 1 November 2020 to 11 November 2020.

Claims relating to November 2020 must be made by 14 December 2020. Claims relating to each subsequent 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?

From February 2021, HMRC will publish the names of employers who make claims under the extended CJRS scheme, along with the amounts claimed, for periods starting from 1 December 2020. 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. From February 2021, furloughed staff will be able to see details of claims made for them after 1 December 2020 in their Personal Tax Account on GOV.UK. See GOV.UK guidance for more.

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.

Job Support Scheme

This UK government scheme was scheduled to begin on 1 November, but was then postponed following the extension of the Coronavirus Job Retention Scheme. It's currently unclear whether or not it will run after the CJRS ends.

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.
  • 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 received a written 'pre-surgery notification' informing them to stay at home before being admitted to hospital to undergo a surgical or other hospital procedure (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 (except if they receive a written 'pre-surgery notification'), 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 received SSP because:

  • they had coronavirus symptoms;
  • someone they live with had symptoms;
  • they'd been notified by the NHS or public health authorities that they'd been in contact with someone with coronavirus; or
  • they were shielding and had a letter from the NHS or a GP telling them to do so (but only during periods where shielding wasn't paused).

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.

Bringing staff back to the workplace and handling refusals

When government restrictions allow, you may want or need to bring staff into the workplace to work. Understandably, staff may remain reluctant or unwilling to return.

Remember, homeworking should be the default wherever possible – only consider trying to bring staff into the workplace if homeworking isn't possible and government advice allows it.

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.
  • You must observe social distancing rules: this probably means using video technology. 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 for employees

Employees (rather than other staff types, e.g. workers) are legally protected in UK law from suffering any detriment (e.g. not getting full pay) due to risks to their health and safety: in particular, if they reasonably believe there's a serious and imminent danger if they return to work. Note, however, that although this UK legislation applies to employees, the EU Directive it comes from applies to all workers. So, arguably, the UK legislation could apply to workers as well – and this was backed up by a recent High Court judicial review, which ruled that the government had failed to properly implement the EU Directive by excluding workers. The situation is unclear, but could be clarified sometime after the end of the Brexit transition period. Until it is, the safest action is to assume the protection applies to workers as well as employees.

The protection applies even where the employee's reasonable belief is mistaken, the serious and imminent danger is lawful, or the danger is caused by customers or other staff not following the rules.

It doesn't matter if you disagree – their belief (from their perspective) just needs to be reasonable. This would ultimately be judged by an Employment Tribunal, if things got that far – if successful, the tribunal could rule that, for example, they were entitled to stay at home on full pay rather than unpaid leave.

The facts that an Employment Tribunal may consider in the current circumstances to determine how reasonable a belief is, include:

  • The 'R' factor in the geographical location of the employee;
  • Whether you've complied with the government guidance;
  • The control measures you've taken to assess and minimise the risk of infection;
  • Whether/what information about it you've communicated to the workforce;
  • Whether the work can be done from home (depending on the business sector);
  • Whether the employee falls within a vulnerable group;
  • Whether they live with or have caring responsibilities for anyone in a vulnerable group; and
  • Any expert opinion or guidance at the time.

Keep this in mind when dealing with objections from your employees. They could use it to make an unfair dismissal claim, no matter how long they've worked for you. If an employee points out this legal protection to you, or if you want to check your position generally, seek legal advice. Note that the law wasn't made with the pandemic in mind, so it's unclear how a tribunal will apply it.

You must also consult workers and/or their representatives and allow them to take part in discussions on all questions relating to health and safety at work. This means you should at least show and discuss your risk assessment with them.

At-risk staff

Extremely vulnerable staff

Such staff are currently advised to work from home wherever possible. 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 asking them to remain at home.

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

These people are allowed to return to work, as long as the workplace is COVID-secure.

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 asking them to remain at home.

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 asking them to remain at home.

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 they remain a safe distance from colleagues and customers. This will vary depending on the industry sector and country they work in, but they generally should be staying 2 metres away from others at most, if not all, times.

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.

If their doctor has advised them that they should not return to work, they will be entitled to receive statutory sick pay, subject to giving you a fit note. 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.

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.

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 and 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.

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.

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 and 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

With schools re-opening, this will be less of a problem. However, it's currently unknown how safe this may be. You may therefore find that some staff will not let their child to return to school and opt to home school them instead.

If this happens, you can (if possible) let them work flexibly.

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.

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;
  • 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 are taking holidays abroad, government rules mean they may have to quarantine (self-isolate) for 10 days when they return to the UK. The list of applicable destinations is changing regularly and quickly, making unexpected quarantines a real risk.

Plan ahead

Ask staff to tell you in advance if they plan to travel abroad, even if the country isn't (at that point) on the England, Wales, Scotland or Northern Ireland quarantine list. 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 on the quarantine list, 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.

The Test to Release scheme allows people 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 country is added to the quarantine list 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 2020-21 tax year.

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.

Job Retention Bonus

This has been scrapped by the government following the extension of the Coronavirus Job Retention Scheme.

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 from 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

Right to work checks can now 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 use the Employer Checking Service if acceptable documents can't be provided. The government has also updated its right to work guides.

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 December. 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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