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 UK government's Coronavirus Job Retention Scheme allows businesses severely affected by coronavirus to avoid staff redundancies by instead putting them on furlough leave and ensuring they are paid 80% of their salary (capped at £2,500 per individual).

In a nutshell:

  • The scheme applies to UK businesses, charities and recruitment agencies.
  • The first step to applying is to put staff on furlough leave, which requires their agreement and a change to the terms and conditions of their contract.
  • Currently, the scheme runs until 31 October 2020, which is the date by which all furlough leave must end. However, the last date that someone could start furlough leave for the first time was 10 June (there is an exception to this for those returning from statutory family leave).
  • Employers can make claims to HMRC using an online portal.
  • Guidance on both the scheme and furloughing is available on GOV.UK

Changes to the scheme

Since 1 July 2020, furloughed workers have been able to return to work part-time ('flexible furloughing') and, since 1 August, employers have had to pay a percentage of the salaries of their furloughed staff. The scheme closed to new entrants on 30 June.

Changes to grant payments

Since 1 August, the level of government grant provided through the scheme has begun to drop, as follows:

  • In August, the government paid 80% of wages up to a cap of £2,500. Employers paid the employer's minimum automatic enrolment pension contributions in respect of that 80% (unless the individual had chosen to opt-out or to stop saving into a workplace pension scheme), plus the employer's National Insurance contributions in respect of that 80%.
  • In September, the government will pay 70% of wages up to a cap of £2,187.50. Employers will pay 10% of wages to make up the 80% total (up to a cap of £2,500). Employers must also pay the employer's minimum automatic enrolment pension contributions in respect of that 80% (unless the individual has chosen to opt-out or to stop saving into a workplace pension scheme), plus the employer's National Insurance contributions in respect of that 80%.
  • In October, the government will pay 60% of wages up to a cap of £1,875. Employers will pay 20% of wages to make up the 80% total (up to a cap of £2,500). Employers must also pay the employer's minimum automatic enrolment pension contributions in respect of that 80% (unless the individual has chosen to opt-out or to stop saving into a workplace pension scheme), and the employer's National Insurance contributions in respect of that 80%.

Flexible furloughing

Since 1 July:

  • Employers can bring back to work staff who have previously been furloughed for any amount of time and any shift pattern, while still being able to claim under the scheme for their normal hours not worked. 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. When claiming the grant for furloughed hours, employers will 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 cannot do any work for you during time that you record them as being on furlough.

Closure to new entrants

The scheme closed to new entrants on 30 June. Since 1 July, the scheme has only been available to employers that have successfully used the scheme for staff they have previously furloughed for a full, consecutive 3-week period prior to 30 June.

This means that the final date by which an employer could have furloughed someone for the first time was 10 June, in order for the minimum 3-week furlough period to be completed by 30 June. Employers had until 31 July to make any claims for the period up to 30 June.

The number you claim for in any single claim period starting from 1 July cannot be more than the maximum number you claimed for under any single claim you made before 30 June.

There is an exception to this for those returning from statutory maternity, paternity, adoption, shared parental or parental bereavement leave. They can be furloughed for the first time even if they return after 10 June if:

  • they started family leave before 10 June;
  • they were on your PAYE payroll on or before 19 March 2020 (i.e. an RTI submission to HMRC must have been made on or before 19 March 2020); and
  • you've furloughed any other person in your organisation at any time between 1 March and 30 June, and claimed for them.

Since 1 July, claim periods can no longer overlap months.

Furlough leave

Here are some FAQs about the key aspects of furlough leave. Keep in mind, though, that the closure of the scheme to new entrants means that, for the most part, you will only be able to furlough staff who you have already successfully furloughed.

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 (and HMRC were notified of this on an RTI submission) as of 19 March 2020:

  • Employees (including directors with service agreements)
  • 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
  • Salaried members of Limited Liability Partnerships; and
  • Company directors (without a service agreement) and other salaried directors of their own personal service companies. For annually paid directors, there must be an RTI submission on or before 19 March 2020 relating to a payment of earnings in the 2019/2020 tax year.

It doesn't apply to self-employed staff.

There are some exceptions to the 19 March on-payroll requirement – see below.

What about staff who've already been let go?

You can still furlough individuals who were on your payroll as of 28 February 2020 (and HMRC were notified on an RTI submission) and:

  • were put on unpaid leave or unpaid sabbatical after 28 February; or
  • were made redundant, or stopped working for you (e.g. resigned to take another job that later fell through), after 28 February 2020. However, you must rehire them first. You don't have to have rehired them before 19 March. This can include individuals you've given redundancy notices to but haven't yet officially left the business, so long as the reason for the redundancies are connected to the pandemic, otherwise it's currently unclear if you can furlough them.

If they were on unpaid leave or unpaid sabbatical on or before 28 February they can be furloughed after the agreed or contemplated duration of their leave/sabbatical has ended.

A person on a fixed-term contract can be re-employed, furloughed and claimed for, if either:

  • their contract expired after 28 February 2020 and an RTI payment submission for the person was notified to HMRC on or before 28 February 2020; or
  • their contract expired after 19 March 2020 and an RTI payment submission for the person was notified to HMRC on or before 19 March 2020.

If the person's fixed-term contract has not already expired, it can be extended, or renewed. You can claim for them if an RTI payment submission for the employee was notified to HMRC on or before 19 March 2020.

What about TUPE?

A new employer can claim under the scheme for employees of a previous business who were transferred under the Transfer of Undertakings (Protection of Employment) Regulations after 28 February 2020.

In order to claim in these circumstances, either the new or previous employer needs to have previously furloughed the employees at any time between 1 March and 30 June, and claimed for them.

If it was the previous employer, the maximum number of employees that the new employer can claim for will be the total of both:

  • the maximum number of employees the new employer claimed for in any one claim ending on or before 30 June; and
  • the number of employees that are being transferred to them who were previously furloughed (and claimed for) by the previous employer. This is subject to the maximum cap the previous employer was subject to.

How are they 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. This also applies if they complete a period of furlough leave and you then want to re-furlough them. Our new Letter putting a worker or employee on furlough leave is a way of recording their agreement.

You must 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.

Be careful not to discriminate when selecting which staff to furlough. But 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 (provided each instance is for the minimum required period). But, remember that (except for those returning from statutory family leave) the last day people could be put on furlough for the first time was 10 June.

Can they do any work while on furlough leave?

Since 1 July, yes. This is known as 'flexible furloughing'. Note that if you flexibly furlough staff, they cannot undertake any work for you during time that you record them as being on furlough. 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, employees 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.

Can I use the scheme to pay for a notice period?

Yes - updated government guidance confirms that you can continue to claim from the scheme while an employee serves their statutory or contractual notice period, including in a redundancy situation. However, you must top-up the notice pay to 100% and you can't use the scheme to claim for any redundancy payments.

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 one of these types of leave on or 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. GOV.UK 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.

If your employee is getting Maternity Allowance while they're on maternity leave, they should not get furlough pay at the same time. If your employee has agreed to be put on furlough, tell them to contact Jobcentre Plus to stop their Maternity Allowance payments. If your employee agrees to be put on furlough and end their maternity leave early, they will need to give you at least 8 weeks' notice and they will not be eligible for furlough pay until the end of the 8 weeks.

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. The amounts could be substantial if their gross wage is more than the monthly wage cap.

What if they have more than one employer?

Each job is separate, and the cap applies to each employer individually.

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

They shouldn't normally be furloughed if they're on sick leave for a short time. If you have a business reason to furlough them, they can be furloughed as long as you stop paying them sick pay. Or, you could wait until their sick leave ends before furloughing them.

If the individual becomes sick while furloughed, they retain their right to Statutory Sick Pay (SSP). This means that furloughed employees who become ill must be paid at least SSP. It is up to you to decide whether to move these employees onto SSP 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.

Can they use their annual leave while on furlough leave?

Yes. If this happens, 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 grant to 100% by paying the remaining amount yourself.

In some circumstances, you can refuse or cancel their leave, or require them to take leave while furloughed. For more information, see GOV.UK.

If an employee usually works bank holidays, then you can agree that this is included in the grant payment. If the employee usually takes the bank holiday as leave, then you would either have to top up their usual holiday pay, or give them a day of holiday in lieu.

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

Yes.

Can you continue with any pre-existing disciplinary action while they're on furlough leave?

Yes. There is guidance from Acas about conducting disciplinary and grievance procedures during the pandemic, including against furloughed staff.

How to calculate claims

You should firstly calculate the relevant percentage of their salary. Your calculation should include any regular, contractual payments that you must pay. E.g.:

  • Wages
  • Compulsory overtime
  • Fees
  • Commission or bonuses
  • Monetary benefits

If a worker has been paid variable payments due to working overtime, you can include these payments when calculating the relevant percentage of their wages, as long as the overtime payments were non-discretionary. Payments for overtime worked are non-discretionary if you are contractually obliged to pay the worker at a set and defined rate for the overtime that they have worked.

There's uncertainty, though, about which other payments of this type are covered by the scheme. A right to an annual bonus of a fixed amount would, for example, be covered, but this isn't very common. Bonuses are more usually paid if the business or the individual hit certain targets. Earlier government guidance suggested these payments would be covered, but more recent guidance suggests that they are not. The same applies to commission payments, where the payment varies depending on the amount of sales made.

Don't include payments that they are not contractually entitled to. This includes discretionary payments (e.g. tips, bonuses, commission) or other payments they only receive if you decide that they should, or if payments are conditional on something being done. Also don't include any non-monetary benefits, like taxable benefits in kind, such as:

  • Company vehicles
  • Private health insurance
  • Non-business travel
  • Entertainment expenses
  • Other business assets that have significant personal use

Calculations differ depending on whether the individual's pay is fixed or varies.

Fixed pay

Use their actual salary before tax, paid in the last salary period ending on or before 19 March, to calculate the relevant percentage. If you've already based your calculation using 28 February (which a previous version of the government guidance said you should), you can still use that date for your first claim.

Variable pay

If you've employed them for 12 months before the claim, you can 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.

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.

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.

Claiming for those returning from a period of unpaid leave or unpaid sabbatical

Their salary should be paid based on earnings they would have received had they not been on unpaid leave/unpaid sabbatical.

You can use the government's Calculator to help with the calculations.

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 employees 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.

Further reading

You should read the government guide on calculating how much you can claim and its example calculations document.

We also recommend reading the Treasury directions to HMRC, which contain the rules HMRC must use when considering claims. There are also sections on what to do if you have reorganised your PAYE after 19 March or for business transfers where the new employer is yet to set up a PAYE scheme.

Deciding on the length of your claim period

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

Claim periods starting on or after 1 July must start and end within the same calendar month and must last at least 7 days, unless you're claiming for the first few days or the last few days in a month. You can only claim for a period of fewer than 7 days if the period you'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.

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.

You can claim before, during or after you process your payroll; you can usually make your claim up to 14 days before your claim period end date and 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.

What to do after you've claimed

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 employee; 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 the usual hours worked, including any calculations that were required, and of the actual hours worked.

Once HMRC have received your claim and you're eligible for the grant, you'll receive the grant by BACS payment.

You must pay all of the grant that you receive for their gross pay to the individual.

No fees can be charged from the money that is granted.

If you're unwilling or unable to pay an individual's salary, you must immediately return their grant to HMRC, including the employer national insurance contributions and pension contributions you received.

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

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

HMRC has published 2 new guides on what to do if you've claimed too much or too little under the scheme. See the guides on errors and penalties for more.

When the scheme ends

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

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

Job Retention Bonus

The UK government is offering employers £1,000 for every furloughed staff member that they continuously employ through to January 2021. To qualify, those staff must earn at least £520 each month (from November to the end of January) and be given work to do. Payment will be made in February 2021.

Furlough and redundancy payments

New legislation has clarified that if you 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 (Note: you can only claim their notice pay from the Coronavirus Job Retention Scheme if you intend to make them work their notice, i.e. you don't pay them in lieu.)
  • 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.

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 work and handling refusals

Workplaces are reopening, but coronavirus hasn't gone away. 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.
  • 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?
  • Avoid involving individuals who are currently furloughed, unless you're making use of flexible furloughing.
  • 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 from suffering any detriment (e.g. not getting full pay) due to risks to their health and safety: in particular, if they believe there's a serious and imminent danger if they return to work. This can include danger caused by customers or other staff not following the rules, or by the risks of commuting on public transport.

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.

If you've followed all of the government's safety advice and can prove you have robust health and safety measures in place, the employee's belief is less likely to be reasonable. However, each case will depend on its own specific facts – e.g. if the employee has a particularly anxious character or you haven't properly communicated the safety precautions.

Keep this in mind when dealing with objections from your employees. They could use it to make unfair dismissal claims, 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.

At-risk staff

Extremely vulnerable staff

All UK countries have paused the shielding requirements for extremely vulnerable people (i.e. those who have previously been told to stay at home). They can now go to work as long as the workplace is COVID-secure, but should carry on working 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.

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

All 4 UK nations now expect these people to return to work, as long as the workplace is COVID-secure.

Members of the BAME community

Current medical evidence suggests that Black, Asian, and Minority Ethnic people have a far higher risk of death from COVID-19. The government has not so far produced any specific information on what extra measures are needed to protect them, except to say that you might need more emphasis on workplace social distancing and hygiene rules.

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.

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 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. Continued furloughing is also an option.

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 or on furlough, though whether or not that means doing so on full pay is unclear. 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 or on furlough, though whether or not that means doing so on full pay is unclear. 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 applicable) let them remain furloughed for as long as possible, or – if you can offer it – 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, as a recent survey found that women have taken on the majority of childcare duties during the pandemic. 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.

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.

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.

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
  • 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, consider letting them remain furloughed or take unpaid leave.

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 refuse furlough or unpaid leave

If nothing you do convinces staff to return, a risk-free solution is to re-furlough them. If they don't qualify or agree, you could:

Unless the terms of their contract or a previous furlough agreement says otherwise, neither of you have to agree to any of the above.

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 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 new 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 (re. 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.

Holiday for furloughed staff

You can require furloughed 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 – although the guidance also says that, generally, furloughed staff shouldn't need to make use of the new carry-over rules because they can take leave while furloughed.

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.

If furloughed staff do take annual leave, you must pay them the correct holiday pay in the usual way. (e.g. For a full-time employee receiving 80% of their pay while furloughed, you'll need to pay the extra 20%.) If your financial situation means you can't afford to pay the difference, this is an example of where it's not reasonably possible for them to use their leave, and they should be allowed to carry it over.

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.

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.

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 priority workers, until 25 December. Any urgent applications can be made online.

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.
  • Until recently, if they're shielding and have had a letter from the NHS or a GP telling them to do so – however, the requirement to shield has been paused and so SSP is no longer available for anyone continuing to shield.
  • 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 for up to 14 days 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 – however, note that the requirement to shield has been paused and so SSP is no longer available for anyone continuing to shield after the pause date.

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.

Staff expenses

There's new 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 a planned tax and NIC exemption for coronavirus-related reimbursed home office expenses, which will apply from 11 June to amounts reimbursed on or after that date but before the end of the 2020-21 tax year.

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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