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.

Furloughing and the Coronavirus Job Retention Scheme

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

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

Extension of the scheme

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

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

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

Neither you nor the employer needs to have used the scheme before to be eligible under the scheme extensions.

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

Frequently asked questions

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

What is furlough leave?

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

What are the time limits?

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

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

Which businesses qualify?

Your employer must:

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

Which types of staff can be put on furlough leave?

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

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

To qualify, you must have been on your employer's payroll as of either:

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

There are special rules about re-employing people for claim periods ending on or before 30 April 2021 - see below under What about staff who've already been let go? For more about categories of eligible staff, see the guidance on the scheme.

Can my employer make me redundant?

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

If your employer makes you redundant, they should base statutory redundancy and statutory notice pay on your normal wage rather than the reduced furlough wage.

What about staff who've already been let go?

For claim periods ending on or before 30 April 2021:

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

What about TUPE?

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

For claim periods ending on or before 30 April 2021, your employer can claim under the normal rules if you were included by them on a PAYE Real Time Information (RTI) submission to HMRC on or before 30 October 2020. Otherwise, you'll need to have been:

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

For claim periods starting on or after 1 May 2021, your employer can claim under the normal rules if you were included by them on a PAYE Real Time Information (RTI) submission to HMRC on or before 2 March 2021. Otherwise, you'll need to have been:

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

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

How are people put on furlough leave?

Your employer can only do it if you both agree to it – they'll need your agreement because it'll change the terms of your contract.

Any agreement that put you on furlough on or after 1 November that was made retrospectively will be valid for the purposes of a claim, as long as the paperwork was put in place by 13 November 2020. After that, the written agreement has to be in place by the time you go on furlough.

Your employer should 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 will probably need a collective consultation process.

Your employer must not discriminate against you when selecting. That said, 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.

Can staff do any work while on furlough leave?

Employers can bring furloughed staff back to work for any amount of time and any shift pattern, while still being able to claim under the scheme for their normal hours not worked ('flexible furloughing'). To be eligible for the grant, your employer 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 your employer 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 you would be expected to work in a claim period and actual hours worked. See Steps to take before calculating your claim for guidance on this.

You can be flexibly furloughed more than once.

If your employer flexibly furloughs you, you can't do any work for them during time that you're recorded as being on furlough.

You're not allowed to work for your employer while on furlough leave or during furloughed hours. 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:

  • If you're a union or non-union representative, you may undertake duties and activities for the purpose of individual or collective representation of employees or other workers. However, in doing this, you must not provide services to or generate revenue for your employer, or on their behalf.
  • While you're furloughed, if you're a pension scheme trustee or trustee director of a corporate trustee, you 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.
  • If you're a furloughed director and you need to carry out particular duties to fulfil the statutory obligations you owe to your company, you may do so provided you do no more than would reasonably be judged necessary for that purpose, i.e. you should not do work of a kind you would carry out in normal circumstances to generate commercial revenue or provides services to or on behalf of your company. This also applies to salaried individuals who are directors of their own personal service company.

What will the scheme pay?

For claim periods ending on or before 30 June 2021, the government will pay (via your employer) 80% of your usual wages for the hours that you're furloughed and not working, up to a cap of £2,500. Your employer has to pay the employer's minimum automatic enrolment pension contributions in respect of the 80% (unless you've chosen to opt-out or to stop saving into a workplace pension scheme), plus the employer's NICs in respect of the 80%.

Since 1 July 2021, the government's contribution is 70% (capped at £2,187.50). From 1 August 2021, it'll drop to 60% (capped at £1,875). Your employer will need to pay the remainder to make up the 80% total, as well as the pension contributions and NICs in respect of that 80%.

For flexible furloughing arrangements, the wage caps are proportional to the hours you're furloughed; e.g. if you're flexibly furloughed, you're entitled to 60% of the cap if you're placed on furlough for 60% of your usual hours.

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, apprentices can be furloughed in the same way as other staff and they can 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 they must cover any shortfall between the amount they can claim for your wages through the scheme and your appropriate minimum wage.

How does furlough affect statutory family leave payments?

If you're furloughed and then start claiming payments after 25 April 2020 for maternity leave, paternity leave, shared parental leave, adoption leave or parental bereavement leave, your employer may need to calculate your average weekly earnings differently for the purposes of the statutory payments for these types of leave. The guidance on the scheme contains links to specific guidance on this for each of these types of leave.

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.

Can my employer 'top up' the remaining balance?

Yes, but they don't 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. Note that the payments must include any contractual payments for overtime, fees, commission or bonuses if they normally pay you.

What if I have more than one employer?

If you have more than one employer, you can be furloughed for each job. Each job is separate. You can be furloughed in one job and receive a furloughed payment but continue working for another employer and receive your normal wages.

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

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

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

You can be furloughed if you're unable to work because of any of the following:

  • You're clinically extremely vulnerable
  • You're at the highest risk of severe illness from COVID-19 and following public health guidance
  • You have caring responsibilities resulting from COVID-19, including if you need to look after children.

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

Also, if you are in either of the first 2 groups, you are still eligible for the scheme even if you have been told that you no longer need to shield.

Can staff use their annual leave while on furlough leave?

Yes. If you're flexibly furloughed, then any hours taken as holiday during the claim period should be counted as furloughed hours rather than working hours. Note that while on annual leave, 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 80% grant by paying the additional 20%.

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

Note, though, that you shouldn't be furloughed simply because you are on holiday. Your employer should only furlough staff because their operations have been affected by COVID-19 and not just because you're on paid leave.

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

Yes.

Can my employer continue with any pre-existing disciplinary or grievance procedure while I'm on furlough leave?

Yes.

How should claims be calculated?

Step 1: Work out the reference date

Your employer first needs to identify your reference date to know which calculation rules they should use. Some calculations use your reference date in the calculation steps.

Your reference date is 19 March 2020 if:

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

Otherwise, your reference date is 30 October 2020, if:

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

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

Step 2: Work out your usual wage

Your employer's calculation should include any contractual (i.e. those your employer is obliged to make to you because it's in your contract) payments that they must pay staff. E.g.:

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

The above payments shouldn't be included if they are discretionary (i.e. if you aren't entitled to receive them under your contract).

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

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

All of any grant received to cover your subsidised furlough pay must be paid to you in the form of money. Your employer can't net off any part of it to pay for providing benefits or a salary sacrifice scheme.

If your employer provides benefits to you while furloughed, including through a salary sacrifice scheme, these benefits should be in addition to the wages that must be paid under the terms of the Job Retention Scheme, unless your contract is amended.

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

The calculation of the usual wages uses a reference date, which is different depending on when you were reported on your employer's payroll and on how you're paid:

1. Calculating the relevant percentage if your pay is fixed:

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

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

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

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

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

2. Calculating the relevant percentage if your pay varies:

19 March 2020 reference date: If you've been with your employer for 12 months before the claim, they should claim the higher of either:

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

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

If you've been with your employer 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.

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

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

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

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

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. If you're on variable pay and returning to work after time off sick, claims should be calculated using the normal rules for employees whose pay varies.

Claiming for those returning from a period of unpaid leave or unpaid sabbatical: If you're on fixed pay, your salary should be paid based on earnings you would have received had you been on paid leave.

Step 3: Flexible furlough calculations

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

See Steps to take before calculating your claim for more.

What happens if my employer's claim is successful?

Your employer must pay:

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

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

No fees can be charged from this money. If your employer is unwilling or unable to pay your salary, they must immediately return the grant to HMRC.

You'll be able to see details of claims made for you in your Personal Tax Account on GOV.UK.

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 and then extended by a further 2 grants lasting for 6 months from November 2020 until April 2021. The 5th and final grant covering the period May to September 2021 will be open to claims from late July 2021. Information is available on GOV.UK.

If your job is at risk

Coronavirus is an economic crisis as well as a health crisis – if 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.
  • You, or someone you live with, have tested positive for coronavirus.
  • If you're shielding and have had a letter from the NHS or a GP telling you to do so (but only during periods where shielding hasn't been paused).
  • 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 been told by a medical professional to self-isolate for 14 days before visiting hospital for an operation or medical treatment (applicable since 26 August 2020).

Before the pandemic, SSP was only payable from the 4th day of sick leave. However, for all of the above, SSP will be payable from the first day that 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 soon in Wales, and possibly 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);
  • 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 (see below);
  • 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.

Face coverings

In many places and environments, including in different workplace business premises throughout the UK, face coverings are mandatory and enforced by law.

A face covering is a protective fabric that covers your nose and mouth. The type of covering isn't set by law and therefore it can be a scarf, religious face covering or any other type of fabric, as long as it is positioned securely to cover the nose and mouth. A three-layer face covering is recommended by the World Health Organization.

The exact rules differ depending on which part of the UK you're in. If you work for a business that is one of those requiring the mandatory wearing of face coverings, they'll need to ensure that you comply and that they inform the general public when entering your workplace.

If you're exempt from wearing a face covering (e.g. for health reasons), you don't have to wear one, but your employer should consider alternative safety measures in these cases.

England

Face coverings must be worn in certain indoor settings and by those who are working in areas that are open to the public and who are likely to come into contact with a member of the public. This includes the retail, leisure and hospitality sectors. However, this doesn't apply if you're separated from the public by appropriate physical barriers (e.g. screens).

In other workplace settings your employer must assess the need for face coverings on the basis of what protection measures are already in place to prevent the spread of the virus.

Wales

You must wear face coverings if you work in an indoor area that's open to the public. In other indoor areas, your employer must assess whether wearing a face covering is a reasonable measure to help reduce the risk of infection (it's likely be if, for example, physical distancing can't be maintained).

If you're separated from the public by appropriate physical barriers (e.g. screens), you don't need to wear face coverings, unless you're in close proximity to other staff members.

Scotland

You must wear face coverings in all public spaces where social distancing can't always be adhered to. Indoor places where face coverings have to be worn include any premises where goods or services are sold to or hired by the public. It's expected that anyone in control of business premises should bring the obligation of wearing a face mask to the attention of any people entering.

You must also wear face coverings in all indoor communal areas of all workplaces – e.g. stairs, lifts, corridors, staff/break rooms, kitchens. There is an exception to this if your employer has put measures in place that either keep you at least 2 metres away from other staff, or physically separate you via some sort of partition.

Northern Ireland

Face coverings are mandatory by law on public transport and in 'relevant' places. The category of 'relevant' places are ever expanding and includes shops, shopping centres, airports, government buildings, banks, public transport, restaurants, cafés, pubs, etc.

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.

Vaccinations and the workplace

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

Can employers require all staff to be vaccinated?

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

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

This makes it difficult for your employer to automatically insist on it. So, too, does the statement from Acas that 'Employers should support staff in getting the coronavirus (COVID-19) vaccine, but they cannot force staff to be vaccinated'.

However, although the government previously emphasised repeatedly that people won't be forced to have a vaccine if they don't want one, on 14 April 2021 a consultation was opened on whether to make vaccination a requirement for those working in older adult care homes (it proposes an amendment to regulations to require care home providers to only use staff who have received the COVID-19 vaccination, or who have a legitimate medical exemption); this followed earlier reports that the government was considering legislating to enforce such a requirement.

Can employers require certain staff to be vaccinated?

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

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

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

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

Unfortunately there are no easy answers here – you'll need to get legal advice if your employer is requiring that you get vaccinated and you're unhappy with it. Whether or not this is reasonable will depend hugely on your circumstances.

Can employers put vaccination requirements into your contract?

Your employer might want to change your contract to add a compulsory vaccination requirement. However, this is potentially problematic. They'll need your agreement – if they make the change without it, they'll be in breach of contract and the original terms of the contract will remain in place. You then have options:

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

If you are just starting a job, it may be easier for your employer to put the vaccination requirement into your contract. However, unless they're recruiting significant numbers of people, this is unlikely to result in any greater protection for their overall workforce. It potentially also opens them up to discrimination claims (more on this below).

In short, it's currently risky – get legal advice if your employer tries to do this and you're not happy with it.

If your employer wants to impose a mandatory vaccination requirement, they must first:

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

They must also recognise that vaccination may not be suitable for all and make allowances for that. For example, you may have been advised not to have it on medical grounds.

Indirect discrimination

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

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

  • Age

The government is currently prioritising older individuals for vaccination. As private vaccination is currently not available, employees outside of a priority age group are disadvantaged compared with those that are.

  • Disability

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

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

  • Pregnancy or maternity

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

  • Race

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

  • Religion or belief

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

Note that:

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

Avoiding indirect discrimination

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

The burden is on your employer to show justification. They must show that:

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

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

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

Direct discrimination

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

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

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

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

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

The action they might consider is starting disciplinary proceedings.

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

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

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

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

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

Can an employer prevent unvaccinated employees from entering the workplace?

Currently, it is not practicable for most employers to prevent unvaccinated staff from entering the workplace as a large part of the working population has not been offered even a first dose of the vaccine. However, the position is expected to be different by the end of the year.

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

Where an unvaccinated employee is retained under a zero-hours contract, your employer could simply not offer future work to them. However, there are potential discrimination risks; e.g., zero-hours staff are likely to be from a younger age group and therefore not on the priority list for vaccination.

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

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

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

The position may differ in relation to frontline healthcare workers and other sectors in close contact with vulnerable individuals, given that the government has offered vaccination to all workers in those sectors and is currently consulting on whether to make vaccination mandatory for workers in older adult care homes.

What am I entitled to be paid if I refuse to be vaccinated?

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

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

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

It may be possible for the employer to furlough you under the Coronavirus Job Retention Scheme.

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

Where you're unable to be vaccinated for medical reasons, or refuse vaccination on, for example, religion or belief grounds, it is possible that your inability to work is due to an 'unavoidable impediment' or external constraint and that your employer must continue to pay you.

Can employers relax safety measures after vaccination?

The short answer is no. The government guidance for employers makes it clear that they must continue to follow the applicable COVID-secure guidelines until further notice, regardless of their employees' vaccination status.

It's still too early to say whether widespread vaccination will eventually reduce the measures required to make a workplace COVID-secure. It may be a long time before enough people are vaccinated; it's very unlikely that any vaccine will be 100% effective, and there will always be those who cannot receive a vaccine.

Your employer should therefore be cautious about treating the vaccine as a mechanism to remove other measures. Instead, they should continue to follow government guidance and monitor it for changes. Note also that the government is carrying out a review into whether 'COVID status certification' could play a role in reopening the economy, reducing restrictions on social contact and improving safety. The review will assess (amongst other things):

  • The potential uses to enable access to settings (which could include workplaces).
  • A relaxation of COVID-secure restrictions.

It is understood that the government will set out its conclusions in advance of step 4 of its Roadmap, which is due to start no earlier than 21 June 2021.

However, vaccination might alter your employer's approach for some clinically highly vulnerable staff. Having the vaccine means these workers can better protect themselves and, subject to an individual risk assessment and both vaccine doses, they may be able to return to the workplace (if it's essential that they do so), especially as they have not been advised to shield since 31 March 2021.

Finally, keep in mind that your employer may need to take extra steps to protect you if you have a genuine medical reason that prevents vaccination.

Are there data protection implications?

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

Going back to the workplace during COVID-19

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

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

Legal protection

Both employees (and, since 31 May 2021, workers) are protected in UK legislation from suffering any detriment (e.g. being treated differently or unfairly compared to their colleagues) due to risks to their health and safety: in particular, if they reasonably believe there's a serious and imminent danger if they return to work.

The protection applies even where your reasonable belief is mistaken, the serious and imminent danger is lawful, or the danger is caused by customers or other staff not following the rules. It doesn't matter if 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.

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

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

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

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. If the risks cannot be averted or minimised, it may be reasonable for you to claim that there's an ongoing serious and imminent danger if you return to the workplace.

Vulnerable staff or those with other potentially dangerous health conditions

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

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

If the risks cannot be averted or minimised, it may be reasonable for you to claim that there's an ongoing serious and imminent danger if you return to the workplace.

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.

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.

If the risks cannot be averted or minimised, it may be reasonable for you to claim that there's an ongoing serious and imminent danger if you return to the workplace.

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 limiting your work activities or duties.

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

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. Whether or not that means doing so on full pay is unclear, unless there's a serious and imminent danger to you returning to the workplace, in which case you must remain on full pay.

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.

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

Staff suffering from anxiety

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

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

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 possible) let you work flexibly. Note that your employer can also use the furlough scheme to furlough you regardless of whether or not the business has been forced to close or faces reduced demand as a result of coronavirus.

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 if the majority of childcare duties are performed by the child's mother. 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. General legal opinion is that it's unlikely.

However, 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.

Your employer should 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; and
  • 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. If possible, you could ask your employer to supply protective equipment, e.g. high-spec face coverings and gloves. 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.

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

If nothing your employer does convinces you to return, they could:

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

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

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

If you're forced to quarantine after returning from abroad

If you spend any time abroad, government rules mean you may have to quarantine (self-isolate) for 10 days when you return to the UK.

It's a good idea to tell your employer in advance if you plan to travel abroad, even if at that point there is no requirement to quarantine after returning. 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 that will result in a quarantine period when they return, 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.

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

Dealing with requests

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 requirement to quarantine is announced 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.
  • Use short-time working or lay off: your employer can only do this if you're an employee and the terms of your contract allow it. Unsurprisingly, if you've been abroad on business then this isn't really a fair option.
  • Take unpaid leave: your employer can do this if you both agree and they can't use short-time working or layoff. Note that 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 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.

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.

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.

Furlough and redundancy payments

If your employer chooses to dismiss you following furlough (e.g. through redundancy), they 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
  • 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

Temporarily, right to work checks can be made:

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

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.

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

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

Temporary changes to criminal record checks

England & Wales

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

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

They have also published factsheets and updated guidelines.

Scotland

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

Telephone and video Employment Tribunal hearings

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

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

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