Law guide: Workplace

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Coronavirus (COVID-19)

Coronavirus (COVID-19)

Contents

The workplace and coronavirus

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

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.

Job Support Scheme

This UK government scheme will start on 1 November, replacing the Coronavirus Job Retention Scheme. To claim from it, your employer will need to put you on reduced hours and pay you for those hours. They'll also have to pay you for a third of the hours you don't work, with the government paying for another third.

More on the scheme is below, but at the time of writing full information on the scheme isn't yet available.

Who's eligible?

All employers with a UK bank account and UK PAYE schemes can claim. While larger businesses will have to pass a financial assessment test, there is no such requirement for small and medium enterprises (SMEs).

You must be on your employer's payroll on or before 23 September 2020 (i.e. an RTI submission was made to HMRC on or before then).

You must work (and be paid for) at least 33% of your usual hours. The government could raise this threshold in February 2021.

You can come on and off the scheme but each period of reduced hours must cover at least 7 days.

Your employer can't make you redundant, or give you notice of redundancy, during any period that they're claiming for.

To put you on reduced hours, your employer will likely be making changes to your employment contract. They'll need to get your agreement and notify you in writing. HMRC may request to see this.

What does the scheme pay?

Your employer will have to pay you at your usual contracted wage for every hour you work. For every hour not worked, your employer and the government will each pay a third of your usual wage. The government's contribution is capped at £697.92 per month.

So, if you were working 33% of your usual hours, you would get 77% of your usual pay (assuming the cap on the government's contribution doesn't apply to you). Your employer would be paying 55% of this, the government the other 22%.

The scheme pays out in arrears, meaning your employer will initially have to pay for the government's contribution and then claim it back.

Note that the government's contribution doesn't include National Insurance or pension contributions – your employer has to pay these.

Self-Employment Income Support Scheme (SEISS) Grant Extension

This is a UK-wide scheme to provide support for the self-employed (including members of partnerships). The original SEISS scheme was split into 2 grants. This has now been extended to offer 2 further grants that will last for 6 months from November 2020 until April 2021. The grants will be paid in 2 lump sums each covering a period of 3 months.

Qualifying for the scheme

To qualify you must declare that:

  • you're currently actively trading and that you intend to continue to do so; and
  • in the qualifying period of the extended grant you are claiming, you were impacted by a reduced demand as a result of COVID-19. The qualifying period for the first grant is between 1 November and the date of your claim.

You must also have been eligible for the original SEISS grant (although you don't need to have actually claimed it). This means you must:

  • be a self-employed individual or a member of a partnership;
  • have submitted your self-assessment tax return for the tax year 2018-2019;
  • have traded in the tax year 2019-2020; and
  • have trading profits of £50,000 or less, which are more than half of your total income for either the tax year 2018-2019 or the average of the tax years from 2016-2017 to 2018-2019 (inclusive).

Different criteria apply if you have loans covered by the loan charge or you're a farmer claiming farmers' averaging relief.

How much can you claim?

The 1st grant will be paid in a single taxable instalment to cover 20% of your average monthly trading profits over the period 1 November 2020 to 31 January 2021, but it is capped at £1,875.

The 2nd grant will also be paid in a single taxable instalment to cover the 3-month period from 1 February 2021 to 30 April 2021, but the level of support isn't yet known.

If your job is at risk

Coronavirus is an economic crisis as well as a health crisis – if your employer isn't able to furlough you and you're at risk of losing your job, our Workplace disputes section has information to help you check that your employer is following a fair process. There are sections on unfair dismissal, redundancy, temporary lay offs and employer insolvency.

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 their employer, 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 the employer that they are sick and give them any required medical evidence within the time limit the employer sets.

When SSP must be paid due to coronavirus

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

  • You, or someone you live with, have symptoms of coronavirus.
  • Until recently, if you're shielding and have had a letter from the NHS or a GP telling you to do so – however, the requirement to shield has been paused and so SSP is no longer available for anyone continuing to shield.
  • You've been notified by the NHS or public health authorities that you've come into contact with someone with coronavirus.
  • Someone in your support bubble (or extended household in Scotland or Wales) but not your own household has symptoms (applicable since 6 July 2020).
  • You've received a written 'pre-surgery notification' informing you 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 you receive a written 'pre-surgery notification'), SSP will be payable from the first day that you're unable to work.

The Coronavirus Statutory Sick Pay Rebate Scheme will repay UK businesses the statutory sick pay (SSP) they've paid to eligible workers.

Legal obligations for employers and staff regarding self-isolation

Since 28 September 2020, there is a legal obligation on you to tell your employer if you're required to self-isolate. There are also rules that prevent your employer from asking you to break your self-isolation in order to work for them. This applies to all employers in England, though similar requirements are expected in the other UK nations.

When the obligations apply

The obligations apply when you're 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 you're told to do so by either the health service or local authority. They do not apply if you were told to self-isolate through the NHS COVID-19 App.

Your obligations

If you're told to self-isolate and don't already work from your isolation location during the isolation period, you must tell your employer that you're required to self-isolate, along with when your isolation period will start and end. You must do this as soon as reasonably possible, and before you're due to start work during the isolation period.

If you're an agency worker, you must inform your employer, the principal or the agency.

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

Your employer's obligations

If your employer is aware that you must self-isolate, they must allow you to remain in the place where you're self-isolating. They must not require you to leave it to attend work. You can still work if you're well and can do so from where you are (e.g. home).

Failing to meet these obligations could lead to your employer being fined £1,000, rising to as much as £10,000 for serious or repeat offences.

Health and safety

The UK government has published a set of guiding principles for people to follow when outside their own home to keep themselves and others as safe as possible. There are similar guides for people in Wales, Scotland and Northern Ireland.

Your employer should be aware of these principles and, where relevant, make it possible for you to adhere to them. For example, by:

  • continuing to allow you to work from home (where possible) at least some of the time;
  • allowing you to adjust your working hours so you can travel to work during off peak times;
  • keeping the indoor spaces of the business well ventilated;
  • reducing the number of people inside the workplace at the same time;
  • ensuring that you aren't closer than 2 metres from others, or, if this can't be achieved, at least 1 metre but then with other protective measures;
  • not seating you facing others, where possible;
  • having one-way traffic through walk spaces;
  • where needed, making sure you all have appropriate face coverings;
  • making sure surfaces and equipment in the workplace are kept clean with more frequent cleaning for high contact surfaces, such as, door handles, lift buttons, communal bathrooms, tea areas;
  • providing hand sanitiser, with the required alcohol concentration to kill the coronavirus, at convenient places in the workspace; and
  • providing easily accessible handwashing facilities; etc.

Your employer is legally responsible for your health and safety, whether you're an employee, worker or a self-employed contractor. This means they must reduce workplace risk of contracting COVID-19 to the lowest reasonably possible level by taking preventive measures.

Your employer may be held liable if you contract COVID-19 and it can be traced to your workplace (which is possible if, for example, you experience an outbreak). This could happen if they've:

  • Not properly complied with health and safety infection-control measures; or,
  • Been negligent by doing or failing to do something which was reasonably foreseeably able to cause you to become infected.

You could potentially make a personal injury claim against them. They could even be liable for further infections in your household.

They could also be investigated and prosecuted by the Health and Safety Executive – and that applies even where there's no infection, if they're found not to be following safe guidelines.

We have more general sections on both Employers' responsibilities and Employees' responsibilities.

Government guidance

The UK government has published sector-specific guides on working safely amid coronavirus.

These guides cover a range of different workspaces. The full PDF versions (available in each guide under Download this guidance) contain a tick list of potential actions your employer might need to take. There is also a poster that they'll be expected to display in the workplace to show they've complied.

There is similar sector guidance for businesses in Scotland, Wales (see under 'Your responsibilities as an employer: coronavirus) and Northern Ireland.

See also the HSE and HSENI websites for the latest information and advice.

Coronavirus risk assessments

Complying with the government guidance will not absolve your employer of liability – they'll need to show that they've carried out a risk assessment that adequately considers the impact of you returning, and that they've carried out all of the actions arising from it.

The HSE gives advice on the steps an employer should follow when doing a COVID-19 risk assessment. It points out that they'll need to:

  • identify what work activity or situations might cause transmission of the virus;
  • think about who could be at risk;
  • decide how likely it is that someone could be exposed; and,
  • act to remove the activity or situation, or if this isn't possible, control the risk.

Examples of what to include in a risk assessment are also available from the HSE and HSENI

Both the Scottish government and Welsh government have published coronavirus-specific risk assessment tools.

Although your employer only has to record your risk assessment in writing if they have 5 or more employees, creating supporting documentary evidence of how they've conducted the assessment will be useful – it could help to reassure you and defend themselves if they're investigated by the HSE or subject to any claim.

Sharing coronavirus risk assessments

Your employer should share the risk assessment and discuss it directly with you and other staff unless they recognise any trade unions, in which case it should be shared and discussed with them instead.

There are 2 sets of regulations that set out how they must consult with you and any trade union. Which one they need to comply with depends on whether they recognise a trade union and have appointed trade union representatives.

You can find out which law applies to your employer by using the HSE flowchart. Once you know which applies, you can read the HSE guidance on how to consult and involve employees and their representatives on health and safety matters in a way that complies with these regulations.

Failing to follow the regulations is a criminal offence and HSE inspectors may take enforcement action where your employer can't show that they've complied with it.

A possible agenda for the discussion of the COVID-19 risk assessment with you or the trade union could look like this:

  • The specific steps they're taking to remove the risk of catching the virus or, if that's not possible, controlling it
  • Safety measures being applied to the workplace building (particularly if it's shared with other businesses)
  • When these will be completed (if not done already)
  • When they intend to open (if not already open)
  • How they intend to decide (or have decided) who will return and how it will be implemented
  • Changes to working patterns and/or other changes you can expect on returning
  • How outbreaks of the virus in the workplace (including any shared building) will be handled
  • Changes the trade union/staff believe should be made
  • How agreed changes can or will be implemented

Other safety considerations

Your employer shouldn't let COVID-19 distract them from other safety considerations. In particular, they must not implement unsafe coronavirus solutions – e.g. redistributing work in ways that could lead to stress or physical injury from overwork; or having staff work alone at unsafe locations or times of day.

All employers with over 50 members of staff are expected to publish the risk assessment on their website.

Homeworking health and safety

Homeworking remains a key method of controlling the spread of coronavirus.

Your employer has the same health and safety duties to you when you're at home as they do when you're in the workplace, though you must take reasonable care of your own health and safety.

It's particularly important at this time that they consider and monitor your mental health.

If working from home is jeopardising your health or safety in some way (e.g. it's having a serious impact on your mental wellbeing), they could give you the option of returning to the workplace if it will help – provided they've followed the government guidance (see above).

Homeworking risk assessments

Ordinarily, they'd visit you at home to perform a risk assessment, but that's not practical in the current situation. They could ask you to assess yourself by sending you a questionnaire about your home workstation – they can then tell you what action to take (if any).

They should review the assessment if your circumstances change (e.g. if you move home, change the room you work in, or they give you new equipment to use).

More on homeworking is below.

Washing facilities

Your employer is legally required to provide adequate toilet and washing facilities. This includes:

  • Enough toilets and washbasins for those expected to use them
  • Hot and cold running water
  • Enough soap or other washing agents
  • Hand towels (preferably disposable) or a hand-dryer
  • Toilet paper
  • Drinking water

Individuals with disabilities must be able to easily access the facilities.

If possible, your employer should try to provide extra handwashing stations around the workplace.

Mental health

Acas have published guidance for employers and employees on managing mental health during the pandemic. It suggests that employers may consider appointing a mental health champion or setting up a mental health support group.

Your employer should be in regular contact with you and try to create an environment where you feel able to be open and honest about how you're feeling.

Reporting of COVID-19

Your employer must make a report under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations when:

  • An unintended incident at work has led to a member of staff possibly or actually being exposed to coronavirus. This must be reported as a dangerous occurrence.
  • A member of staff has been diagnosed as having coronavirus and there is reasonable evidence that it was caused by exposure at work. This must be reported as a case of disease.
  • A member of staff dies as a result of workplace exposure to coronavirus.

See RIDDOR reporting of COVID-19 for more.

Going back to the workplace during COVID-19

Workplaces are reopening, but coronavirus hasn't gone away. You may remain reluctant or unwilling to return.

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 your employer disagrees – your belief (from your 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, you were entitled to stay at home on full pay rather than unpaid leave.

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

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. However, employers requiring such staff to return to the workplace may be exposing themselves to a health and safety liability risk, as such staff may need more than the usual safety measures to protect them.

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 staff in these categories, except to say that employers might need more emphasis on workplace social distancing and hygiene rules.

To avoid potential liability under race discrimination laws, your employer needs to ensure that any decisions they make about returning to the workplace are fair and consistent, unless they have a good business reason for different treatment. Note that while taking extra precautions for BAME staff compared to (non-vulnerable) white staff could be viewed as indirect discrimination, 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 your employer is allowing or requiring such staff to return to the workplace, they must assess the level of risk, which ought to be acceptable to both parties.

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

Your employer should consider offering you the safest available on-site roles and/or agreeing to adjust your 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 both agree to temporarily do alternative work from home. Continued furloughing is also an option.

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

Otherwise, your employer can suggest you take unpaid leave or use your holiday allowance. Note that they can lay you off for a limited time if your contract gives them a right to do so.

If you want to return but they want you to stay at home, you'll be entitled to full pay.

Disabilities

If you're classed as extremely vulnerable, vulnerable or have other potentially dangerous health conditions, you could have a disability that's recognised under Equality Law. If you do, your employer is legally obliged to make reasonable adjustments. This probably includes letting you 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 you 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 your condition isn't recognised as a disability under equality law, your employer doesn't have to make adjustments like letting you stay at home. But to be certain (and in line with their health and safety obligations), they should consider getting a medical report from your GP.

If medical evidence suggests you're at greater risk, ask your employer to check this against their workplace risk assessment. If you both agree on a return, your employer should 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.

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

Again, remember that the person with whom you live may have a disability that's recognised under Equality law – and your employer can't treat you less favourably than others based on the disability of someone you'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, your employer is legally obliged to make reasonable adjustments. This probably includes letting you 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 you're experiencing stress/anxiety at levels that mean you can't work, so long as you give your employer a fit note from your doctor.

It's also possible that requiring you 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, your employer doesn't have to make adjustments like letting you stay at home. But to be certain (and in line with their health and safety obligations), they should consider getting a medical report from your GP.

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

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 find you can't or don't want to let them return to school on occasions.

If this happens, your employer can (if applicable) let you remain furloughed for as long as possible, or – if they can offer it – work flexibly.

There are other options available only to employees:

  • Unpaid parental leave: after a year of working for your employer, you can take leave of up to 4 weeks for each child per year in blocks of at least one week. Your employer is entitled to at least 21 days' notice, although they can choose to be flexible about both this and the amount of leave.
  • Unpaid dependent care (or emergency) leave: you can take a reasonable amount (usually 1 or 2 days) of time off to take necessary action to look after your child. It's available no matter how long you've worked for your employer.

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

Note that your employer could be liable for sex discrimination, as a recent survey found that women have taken on the majority of childcare duties during the pandemic. Your employer must ensure that decisions are fair and consistent, unless they 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

If you have to use public transport to get to work, it's currently unclear if your employer will be responsible for your health and safety while you're doing so.

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

Remember your employer has 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 them 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.

Your employer could consider any possible options that might help you avoid public transport, such as:

  • giving you 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, you could ask to alter your hours to avoid busy times.

Exploring options

If you want reassurance or want to explore other safer ways of working, considering the following options:

  • If your employer hasn't already shared it, ask them for a copy of their COVID-19 risk assessment and what action they've taken to make the workplace COVID-safe.
  • Ask for 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 to speak to a colleague who's already returned.
  • If it's relevant, request temporary flexible working arrangements (such as earlier/later start-finish times).
  • Ask for another safe site you can work at.
  • Ask if there is a safer role than your present one to do in the meantime.

Agreeing changes

If you agree changes to working conditions that affect the usual terms of your contracts, even for a temporary period, you should ask for it to be confirmed in writing.

Staff who refuse furlough or unpaid leave

If nothing your employer does convinces you to return, they could try to re-furlough you. If you don't qualify or agree, they could:

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

If you can't agree, your employer may issue a management instruction for you to return to the workplace. If you continue to refuse, they could start disciplinary action against you (unless you're self-employed), and should warn you that continuous refusals may result in your dismissal.

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

Homeworking

The number of people working from home has soared during the pandemic. Below are some of the issues both you and your employer will need to think about while you're working at home.

Equipment

There is, generally, no legal obligation on your employer to provide you with the equipment necessary for homeworking. Whether or not they do can depend on whether you already have it, such as a PC/laptop and an internet connection.

If you don't, they can provide the equipment to you - and this might be preferable if there are security or legal compliance risks, or if you need specific items to perform your duties.

Note that the law requires your employer to make reasonable adjustments for a disabled homeworker. This means they may need to provide such workers with suitable equipment (or reimburse their cost of obtaining it). On a related point, a fact sheet on the Access to Work scheme gives information on the extra support you can get if you're disabled and need to work from home due to coronavirus.

If you do use your own equipment, ensure that it is properly maintained with the latest software updates so that it doesn't cause security vulnerabilities and compromise your employer's data protection obligations.

Costs

You may incur increased costs because you work from home, such as electricity and heating. But there isn't a legal obligation on your employer to pay or contribute towards this.

If you haven't chosen to work from home voluntarily, you can claim tax relief on your extra costs. This could be paid by your employer as tax-free allowance or you can claim it yourself.

Health and safety

Your employer remains responsible for your health and safety while you're working from home. More information on this is set out above.

Work expenses

There's new guidance for employers 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.

If you're forced to quarantine after returning from abroad

If you take a holiday abroad, government rules mean you may have to quarantine (self-isolate) for 14 days when you return to the UK. The list of applicable destinations is changing regularly and quickly, making unexpected quarantines a real risk.

Plan ahead

It's a good idea to tell your employer in advance if you 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 them to plan and to let you know about what'll happen if and when you quarantine – e.g. when you'll need to contact them, what work you might be able to do, whether or not you'll be paid, and if any other arrangements are needed (such as staff cover).

Your employer shouldn't put a blanket ban on staff using annual leave to visit a country on the quarantine list, particularly if they have staff who travel abroad to visit close members of their family. Doing so is likely to be unreasonable and will risk discrimination claims.

Dealing with requests

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

Your employer does have a right to refuse a request to take annual leave, if they know that you will have to quarantine on your return and they 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).

If a country is added to the quarantine list after your employer has approved your leave request, it's possible for them to cancel it. Unless your contract says otherwise, they'll need to give you at least as much notice as the amount of leave being taken. It might well be unreasonable for them to do this unless they have a strong business reason, particularly if you've incurred non-refundable holiday costs.

Options for when you return

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

The options are (either alone or in combination):

  • Work from home: if you can't usually do this, your employer should consider whether there is suitable work they can give you. Note that this may mean temporarily giving you different work. They may need to provide equipment. Ideally, you should be able to do the work with minimal training. While this might seem inconvenient, they should particularly consider it if they have other staff who can ordinarily work from home, as it will help them to show that they're being fair and consistent in their procedures.
  • Use annual leave: your employer can ask you to do this. Or, they can require you to do it by giving you the required amount of notice – though since this is double the length of leave that they want you to take (unless your 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 you to have enough annual leave left.
  • Take unpaid leave: you and your employer can mutually agree this, but they can't require it unless your employment contract gives them that right. Note that, depending on the circumstances, if you're an employee, you might be able to make use of your rights to take either unpaid parental leave or unpaid dependent care (or emergency) leave. Unsurprisingly, if you've been abroad on business then unpaid leave isn't really a fair option.

Disciplinary action is possible in some situations, but your employer should take extreme care over this. The requirement to quarantine is the law, so punishing you for complying with it is unlikely to be fair – unless you have, without good reason, failed to comply with any reasonable requirements that they've put in place. In any case, your employer will need to follow their disciplinary procedure.

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

Annual leave during COVID-19

Carrying over holiday

You're entitled to at least 5.6 weeks of annual leave per year. Ordinarily, only 1.6 weeks of that can be carried over (if your employer allows it). Temporary rules 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 your employer will be expected to take into account. These include (among others):

  • When your employer's 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 you've had to continue working to cope with it
  • Your role, e.g. if you'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 your employer 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 your employer 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).

Employers will be expected to:

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

Holiday for furloughed staff

If furloughed, your employer can require you to take holiday, as long as they give you proper notice (double the length of leave they want you 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 for an employer to require holiday to be taken is after the majority of lockdown restrictions are lifted, and not while you must self-isolate.

Otherwise, you could claim that this isn't true holiday and shouldn't count as part of your annual leave allowance (which could have a financial effect later if, say, you're made redundant). This is untested in law, and there's scope for a lot of legal argument.

If you're furloughed and do take annual leave, your employer must pay you the correct holiday pay in the usual way. (e.g. For a full-time employee receiving 80% of their pay while furloughed, your employer will need to ensure you are paid 100%.) If your employer's financial situation means they can't afford to pay you the difference, this is an example of where it's not reasonably possible for you to use your leave, and you should be allowed to carry it over.

Furloughing and the Coronavirus Job Retention Scheme

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

In a nutshell:

  • The scheme applies to UK businesses, charities and recruitment agencies.
  • The first step for your employer to apply is to put you on furlough leave, which requires your agreement and a change to the terms and conditions of your contract. They'll therefore need to put something in writing for you to sign.
  • Currently, the scheme runs until 31 October 2020, which is the date by which all furlough leave must end. However, the last date that you could start furlough leave for the first time was 10 June (unless you returned after then from some form of statutory family leave, e.g. maternity 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 you'd 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 you've 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 you've 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 you back to work from furlough for any amount of time and any shift pattern, while still being able to claim under the scheme for your normal hours not worked. To be eligible for the grant, employers must agree with you any new flexible furloughing arrangement and confirm that agreement in writing. For worked hours, you'll be paid by your employer subject to your 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 you're not working, calculated by reference to your usual hours worked in a claim period. Employers will be required to submit data on the usual hours you'd be expected to work in a claim period and actual hours worked. 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.

You can be flexibly furloughed more than once.

If you're flexibly furloughed, you cannot do any work for your employer during time that they record you 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 you 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.

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

  • you started family leave before 10 June;
  • you were on your employer's 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
  • they've furloughed any other person in your organisation at any time between 1 March and 30 June, and claimed for them.

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 can only be furloughed if you've been furloughed already.

Which types of staff can be put on furlough leave?

Any of the following, on any type of contract, provided you're paid via PAYE and were on your employer's 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 your employer (provided your employer isn't your 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 2019/20 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?

Your employer can still furlough you if you were on 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 your employer (e.g. resigned to take another job that later fell through), after 28 February 2020. However, your employer must rehire you first. You don't have to have been rehired before 19 March. This includes situations where you've been given a redundancy notice but haven't yet officially left the business, so long as the reason for your redundancy is connected to the pandemic, otherwise it's currently unclear if you can be furloughed.

If you were on unpaid leave or unpaid sabbatical on or before 28 February, you can be furloughed after the agreed or contemplated duration of your 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. Your employer 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 staff put on furlough leave?

Your employer can only do it if you both agree to it – your employer needs your agreement because it'll change the terms of your contract. This also applies if you complete a period of furlough leave and your employer then wants to re-furlough you.

They must discuss using the scheme with you beforehand. If they intend to use the scheme for 20 or more employees from one place of work, they'll probably need a collective consultation process.

Your employer must not discriminate when selecting which staff to furlough. It's likely that they'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, your employer can rotate it among individuals, or put you on it more than once (provided each instance is for the minimum period). But, remember, that (except for those returning from statutory family leave) the last day you can be put on furlough for the first time was 10 June.

Can staff do any work while on furlough leave?

Since 1 July 2020, yes. This is known as 'flexible furloughing'. Note that if you're flexibly furloughed, you can't do any work for your employer during time that they record you as being on furlough. You can do volunteer work or training, as long as this doesn't provide a service to your employer or generate any revenue for them.

Note the following:

  • 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 their employer or on their behalf.
  • While 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 my employer use the scheme to pay for my notice period?

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

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

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

Can my employer recover from the scheme any statutory family leave payments?

No, they need to reclaim these in the usual way from HMRC. This applies if you're currently on maternity leave, paternity leave, shared parental leave, adoption leave or parental bereavement leave.

However, if you were furloughed and then started one of these types of leave on or after 25 April 2020, your employer may need to calculate your 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. The key point is that your eligibility for statutory pay shouldn't be affected by being furloughed.

Your employer can claim through the scheme for any enhanced maternity, paternity, adoption, shared parental or parental bereavement leave pay that they offer as part of your contract.

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

Can my employer 'top up' the remaining balance to 100%?

Yes, but they do not have to.

If they do, they'll have to pay the amount of your 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 your gross wage is more than the monthly wage cap.

What if staff have more than one employer?

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

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

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

If you become sick while furloughed, you retain your right to Statutory Sick Pay (SSP). This means that furloughed employees who become ill must be paid at least SSP. It is up to your employer to decide whether to move you onto SSP or to keep you on furlough, at your furloughed rate.

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

Can staff use their annual leave while on furlough leave?

Yes. If this happens, you must be paid your full normal rate of pay (or if your pay varies, your 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 your employer having to 'top up' the grant to 100% by paying the remaining amount themselves.

In some circumstances, your employer can refuse or cancel your leave, or require you to take leave while on furlough. For more information, see GOV.UK.

If you usually work bank holidays, then they can agree that this is included in the grant payment. If you usually take the bank holiday as leave, then they would either have to top up your usual holiday pay, or give you a day of holiday in lieu.

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

Yes.

Can employers continue with any pre-existing disciplinary action while staff are 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

Your employer should firstly calculate the relevant percentage of your salary. Their calculation should include any regular, contractual payments that you must be paid. E.g.:

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

If you've been paid variable payments due to working overtime, your employer can include these payments when calculating the relevant percentage of your wages, as long as the overtime payments were non-discretionary. Payments for overtime worked are non-discretionary if your employer is contractually obliged to pay you at a set and defined rate for the overtime you've 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 you or the business 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.

Your employer can't include payments that you aren't contractually entitled to. This includes discretionary payments (e.g. tips, bonuses, commission) or other payments that you only receive if they decide that you should, or if payments are conditional on something being done. Also, your employer can'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 your pay is fixed or varies.

Fixed pay

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

Variable pay

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

Claiming for a member of a Limited Liability Partnership

Payments can only be included if they 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. Your salary should be paid based on earnings received before going on family leave, and not earnings you received while on family leave.

Claiming for employees or workers returning from a period of sick leave

Your 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

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

See the government's Calculator to get an idea of the calculation.

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

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

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

After your employer has claimed

Your employer must pay to you all of the grant that they receive for your gross pay. They can't charge you any fees.

If they're unwilling or unable to pay your salary, they must immediately return your grant to HMRC, including the employer national insurance contributions and pension contributions they received.

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

When the scheme ends

When the government ends the scheme, your employer must make a decision, depending on the circumstances, about whether they can continue to employ you.

If not, they can consider putting you on short-time working or lay off, unpaid leave, or if necessary, start a redundancy process. They may be able to keep you on while making use of the government's Job Support Scheme (see above).

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're an employee who's dismissed after furlough (e.g. through redundancy), your employer must calculate certain statutory payments using your normal (pre-furlough) pay and not your (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: your employer can only claim your notice pay from the Coronavirus Job Retention Scheme if they intend to make you work their notice, i.e. they don't pay you in lieu.)
  • Statutory redundancy pay
  • Pay for time off you take to look for new employment or arrange training, following notice of dismissal
  • The statutory amount payable if your employer fails to provide you with written reasons for your dismissal
  • Statutory compensation for unfair dismissal
  • The statutory amount payable if you're successful in an unfair dismissal claim and your employer fails to comply with a tribunal or court order to reinstate or re-engage you.

The new legislation explains how to calculate the above payments, including if your pay or hours vary. In essence, though, for the calculation of a week's pay, your 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 you were furloughed.

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.

Your employer must still make the check and use the Employer Checking Service if you can't provide acceptable documents. The government has also updated its right to work guides.

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.

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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