**Updated 10 July 2020** - Lucy Drury shares some answers to frequently asked questions and useful links for employers in light of the current Cororanvirus outbreak.
The World Health Organisation has now identified Coronavirus as a pandemic. Current Government advice is to work from home wherever possible. This means that employees should only be working on the employer’s premises if they ‘absolutely’ cannot work from home. The Government have announced that all non-essential shops and community spaces are to close. You may need to find out if your business comes under essential or non-essential and should therefore close.
For further information on this point, please see: Staying at home and away from others (social distancing), Closing certain businesses and venues, and related Scottish guidance - Coronavirus (COVID-19): business and social distancing guidance
The Government advises anyone who is at high risk of getting a severe illness if they catch coronavirus ('vulnerable people') to take particularly strict social distancing measures. This means that employers must be especially careful and take extra steps for anyone in their workforce who is in a vulnerable group. Vulnerable people include, but are not limited to, those who:
As all citizens of the UK (though guidelines will differ in England, Scotland, Wales and Northern Ireland) are being told to stay at home and work from home unless they cannot possibly work from home – employers are therefore encouraged to request their employees to work from home. The practical steps that can be taken to enable employees to work from home are as follows:
If an agreement with the employee is reached for them to work from home, you should:
As of 13 March 2020, the SSP regulations were temporarily amended (for 8 months but will be kept under review) so that “persons deemed incapable of work” for the purposes of entitlement to SSP will now include those who are self-isolating to prevent the infection or spread of the virus in accordance with public health guidance and who are unable to work as a result. In these circumstances they would fall within the new "deemed incapacity" rules and be entitled to SSP (or any contractual sick pay you chose to pay or they are entitled to in these circumstances).
The SSP regulations were further amended on 17 March to include those who live with someone who is experiencing symptoms to self- isolate (and who is unable to work from home).
The Government intends to capture those vulnerable groups who have been strongly advised to socially distance themselves (on the basis that it will generally render those employees who are unable to work from home, unable to work) within the deemed incapacity rules. However, the Government’s position on this is not entirely clear. However, given employers' obligations towards the vulnerable groups in question, we hope that the rules will be interpreted to include vulnerable groups who effectively have to isolate in order to follow the advice on social distancing.
Emergency legislation is now in force that results in SSP being payable from the first day of sickness absence. This new legislation also results in small employers (with fewer than 250 employees) being able to be reimbursed for any SSP paid to employees in respect of the first 14 days.
It should also be noted that companies may have to pay employees ‘Company sick pay’ if their contracts of employment provide for this. Much shall depend on the contractual definition of incapacity.
To summarise, if an employee self isolates on Government advice but isn’t displaying any symptoms and is capable of working from home then you should pay them their normal pay for homeworking. If there aren’t homeworking options available then they may fall into the new “deemed incapacity” rules for SSP and therefore be entitled to receive SSP.
Employees are entitled to take reasonable time off for unplanned circumstances which require them to look after dependants (statutory time off for dependants). This would apply if schools are closed and alternative childcare, particularly on short notice, would be difficult to find. It would also apply to situations where an individual needs to take time off to take a dependant to hospital or look after them if they are very unwell. Whilst there is no statutory right to be paid for emergency time off, some employers may offer to pay depending on their applicable contact/policy in these situations.
Other alternatives include allowing employees to take holidays or to temporarily change their working patterns/hours to accommodate their caring responsibilities.
As many employees are unlikely to be able to obtain a fit note from their GP (due to being asked to self-isolate), the current advice is to be flexible in the evidence you require from employees at this time, this is subject to the launch of online isolation notes (see more details below).
The Government has just announced the launch of online isolation notes. Isolation notes provide employees with evidence for their employers that they have been advised to self-isolate due to Coronavirus, either because they have symptoms or they live with someone who has symptoms, and so cannot work.
For the first seven days off work, employees can self-certify so they don’t need any evidence for their employer. After that, employers may ask for evidence of sickness absence. Where this is related to having symptoms of Coronavirus or living with someone who has symptoms, the isolation note can be used to provide evidence of the advice to self-isolate.
Isolation notes can be accessed through the NHS website and NHS 111 online through the following link: https://111.nhs.uk/isolation-note/.
Some people may be worried about catching Coronavirus and therefore unwilling to come into work. If employees can work from home, the current Government advice is to allow them to do so, however this may not be possible for all job roles. If this is the case you should listen carefully to the concerns of your employees and if possible, offer flexible working arrangements such as not traveling to work during rush hour periods. Employees can also request time off as holiday or unpaid leave but there is no obligation on employers to agree to this. If an employee refuses to attend work, the company could in normal circumstances commence disciplinary action. However, our view is that dismissal is likely to be outside the range of reasonable responses, at least for now.
If an employer instructs employees not to attend work for whatever reason, then they should normally continue to pay wages if employees are otherwise willing and able to attend work. If some employees are refusing to follow Government guidance (such as not self-isolating when they have travelled to an at risk area) then the employer may be left with no choice other than to instruct employees to remain at home. If employees remain at home to self-isolate due to Government guidance(and are unable to work) they may be entitled to SSP in accordance with the deemed incapacity SSP provisions.
Employees can be advised to take care of their health and safety and protect others by doing the following:
On Friday 20 March 2020 the government announced the introduction of a temporary scheme, the Coronavirus Job Retention Scheme, to support employers whose businesses have been severely affected by coronavirus. The scheme was opened to all UK employers for an initial three months starting from 1 March 2020, and has now been extended until the end of October 2020 (though the scheme closed to new entrants on 30 June 2020 – see further information below). Employers are able to use a HMRC portal (which opened on 20 April) to claim 80% of furloughed employees’ (employees on a leave of absence) usual monthly wage costs, up to £2500 a month, plus (not including) the associated employer national insurance contributions and minimum automatic enrolment employer pension contributions on that wage. On 29 May 2020, it was announced that, from August, employers must pay National Insurance and pension contributions for furloughed employees, plus 10% of furlough pay from September, rising to 20% from October.
The scheme closed to new entrants on 30 June 2020. This means that the final date by which an employer could furlough an employee for the first time was 10 June, in order for the minimum 3 week furlough period to be completed by 30 June. Employers will have until 31 July to make any claims in respect of the period to 30 June.
The scheme is designed to help employers that cannot maintain their current workforce because their operations have been severely affected by Covid-19. The Government has stated that all types of employers can claim under the scheme as it recognises that different businesses will face different impacts from Covid-19. This is slightly different from the original purpose of the scheme, which was for employers to claim pay for employees who would otherwise have to lay off or make employees redundant. This updated guidance suggests that all employers are eligible to claim under the scheme provided their business operations have been severely impacted by Covid-19.
A third version of the Government’s Treasury Direction was published on 26 June 2020, which appears to further amend the stated purpose of the scheme. This is the Treasury’s Direction to HMRC in respect of the scheme. The updated Direction implies that furlough payments must only be used to continue employment. The new Direction also says that claims must not be made if they are abusive or otherwise contrary to the exceptional purpose of the scheme. Some commentators have suggested that, in light of the updated Treasury Direction, the scheme cannot be used to claim for employees who have been served notice of termination of employment. However, UK employment law experts have argued that for as long as the notice period is being served out, employment is continuing. Our current view is that notice pay can be claimed for through the CJRS, but there is a risk that HMRC may later conclude that employees serving out notice were not eligible and reclaim these payments from employers.
The updated Direction also says that to be eligible for the scheme, an employer’s employment activities must have been affected by the virus – but it is not clear whether this is a change from previous versions of the Direction.
Prior to July 1 2020, employees on furlough leave had to remain at home on 80% of their pay (subject to a maximum of £2,500 per month) and were not permitted to carry-out any work. To be eligible for the grant, when on furlough, an employee could not undertake work for, or on behalf, of the organisation or any linked or associated organisation (e.g. any company in the employer’s group). This includes providing services or generating revenue. However, since 1 July 2020, furloughed employees are allowed to return to work for any amount of time and any shift pattern, but with employers paying 100% of wages for the days they are working.
Further guidance on ‘flexible furloughing’ was published on 12 June 2020. The new guidance explains that from 1 July 2020, employers will claim a pro rata amount of 80% of salary for flexibly furloughed employees, based on the proportion of hours not worked out of normal working hours.
The new working arrangement must be agreed between employer and employee before the claim period starts and should be confirmed in writing by the employer.
To calculate the normal working hours for those with fixed hours/pay, take the number of hours worked in the pay period before 19 March 2020. To calculate the normal working hours for those with variable pay, you take the higher of (a) the average number of hours worked in the tax year 2019 to 2020 or (b) the corresponding calendar period in the tax year 2019 to 2020.
You should not make a claim until you are sure of how many hours your employee will be working during the flexible furlough period. If you claim in advance and your employee ends up working less than expected, you will have to pay some of the grant back.
1 July 2020 will be the first date employers can make claims for days in July. 31 July is the last day that you can submit claims for periods ending on or before 30 June.
A furlough period that began in June can extend into July, but it must be for at least 21 days. Separate claims must be made for June and July even if the furlough period is continuous, as claim periods can no longer overlap months.
On 26 March, the government published guidance on the Coronavirus Job Retention Scheme which answers a number of questions which had arisen since the scheme was introduced. This guidance has been subsequently updated numerous times (at the time of writing, the last update was on 26 June 2020). Other guidance for businesses and employees has also been updated: support for businesses through the Coronavirus Job Retention Scheme and - Furloughed workers.
Some key points of the scheme are:
Further guidance on the mechanics of claiming payment under the scheme can be found in the following link as well as more detailed information:
If you have any questions with regards to furlough please contact MBM’s employment team on email@example.com
Some employees will have the right to take unpaid emergency volunteering leave. This is aimed at allowing employees to leave their main job and volunteer temporarily in the NHS or social care sector. An "appropriate authority", such as a local authority, an NHS Commissioning Board or the Secretary of State for Health and Social Care, can certify an individual to act as an emergency volunteer in health or social care. Employees will need to give theiremployers 3 working days' notice and produce the certificate.
The period of leave is unpaid and must be either two, three or four weeks long, and must be specified in the certificate. There is no provision for employers to refuse leave. Employees can take one period of leave in each "volunteering period". Initially, there will be one 16-week volunteering period beginning on the day the provisions come into force.
Despite the leave being unpaid:
The Secretary of State is also required to establish arrangements for paying compensation to volunteers in respect of loss of earnings and travel and subsistence expenses. However, it is not currently clear whether this scheme will replace all lost earnings, will be subject to a cap or will consist of a flat rate.
The UK Government has passed emergency legislation relaxing the rules restricting employees carrying over 20 days of statutory entitled holiday under the Working Time Directive (WTD) with immediate effect. The legislation permits employees carrying over any untaken WTD annual leave where it was not reasonably practical to take it in the leave year, as a result of the effects of the coronavirus. Carried-over leave may be taken in the two years immediately following the leave year in respect of which it was due. Employers will only be able to require a worker not to take carried-over leave on particular days where they have a ‘good reason’ to do so. ‘Good reason’ currently remains undefined.
As the full 28 days of statutory leave (and any enhanced contractual leave) cannot be carried over, employers will need to determine how to designate any leave that has already been taken, and any leave not carried over and taken during the current leave year, to calculate how much leave an employee can carry over.
The contractual position will depend upon the contract of employment and any holiday’s policy.
If you are an employer and have any further questions, please contact the Holistic HR Team at MBM Commercial LLP by following this link: https://mbmcommercial.co.uk/employment-law-hr-support.html. Visit MBM's Coronavirus hub for regular updates.
ACAS advice for employers: www.acas.org.uk/coronavirus