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Covid-19: Summary guidance for employees

View profile for Julie Temple
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Covid-19: Summary guidance for employees

14 May update

The Prime Minister announced a change in the position on working on 10 May 2020. It represents a shift from “you should work from home if you can, and only go to work if you must” to “work from home if you can, but .. go to work if you can’t” whilst at the same time avoiding “public transport if at all possible – because we must and will maintain social distancing, and capacity will, therefore, be limited”.

The announcement included that “anyone who can’t work from home … should be actively encouraged to go to work”. Clearly this will apply to those businesses who are not required to remain closed (https://www.gov.uk/government/publications/further-businesses-and-premises-to-close/further-businesses-and-premises-to-close-guidance) and must be done safely and with the requirements of social distancing in place.

From the statement, it is clear the Prime Minister considered the  ‘capacity’ to return for those who cannot work from home would be limited – it will not apply to all workplaces (as some must still remain closed) and not all roles or everyone carrying out the same role.

The new guidance to make workplaces COVID-secure was published on 11 May and, so far as employees are concerned, said this:

  • workers should work from home where possible for the foreseeable future
  • workers who cannot work from home should work at their workplace if it is open
  • hospitality and nonessential retail remain closed
  • workplaces should follow Covid-19 Secure guidelines
  • anyone who has Covid-19 symptoms should self-isolate, remain at home and not go to work

The above applies from 13 May and in England only.

Further details can be found at:

https://www.gov.uk/government/publications/our-plan-to-rebuild-the-uk-governments-covid-19-recovery-strategy

https://www.gov.uk/government/news/new-guidance-launched-to-help-get-brits-safely-back-to-work

https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

If you are not able to work from home and your workplace is not required to remain closed we recommend you liaise with your employer to discuss if you can return to work (given any other responsibilities) and if it is safe for you to do so, taking into account the guidance issued on 11 May.

On 12 May 2020, Chancellor Rishi Sunak announced the furlough scheme will continue until the end of October 2020. Between August and October employers will be able to bring furloughed employees back part-time.

Further details will follow by the end of May and we will keep you up to date as this progresses.

Entitlement to pay and sick pay

If you are ready, willing and able to work but for whatever reason are not provided with work or are sent home you are, in principle, entitled to full pay.

If you are unwell you will be entitled to Statutory Sick Pay (SSP) and in some instances contractual sick pay.

Amended regulations provide that a person is incapable of work for the purposes of SSP because they are self-isolating to prevent infection from COVID-19, if they:

  • have symptoms of COVID-19, however mild, and are staying at home for seven days, beginning with the day on which the symptoms started (day 1).
  • live with someone who is self-isolating (as above) and are staying at home for 14 days, beginning with day 1.
  • are already self-isolating in accordance with the second bullet (above), develop the symptoms of COVID-19, however mild, and are staying at home for seven days, beginning with the day the symptoms started.

Under further revised SSP Regulations (which came into force on 16 April 2020) a person is also deemed incapable because:

  • they are defined in public health guidance as extremely vulnerable and at very high risk of severe illness from COVID-19 because of an underlying health condition.
  • they have been advised by a notification (sent to, or in respect of, them) that, in accordance with that guidance, they need to follow rigorously shielding measures for the period specified in the notification.

This means if you are at high risk and 'shielding' you are entitled to SSP. Whilst we understand the amendment came into force on 16 April 2020 we believe the waiver of waiting days will apply from 13 March 2020 but this is yet to be confirmed.

Right to lay-off and short-time working

An employer can ask you to stay at home or take unpaid leave if there’s not enough work and they have the contractual right to do so. There is no limit to how long you can be laid off for or put on short-time working. You may, however, be entitled to a guarantee payment or to apply for redundancy and claim redundancy pay if the period is:

  • 4 weeks in a row
  • 6 weeks in a 13-week period

Furlough under Coronavirus Job Retention Scheme

UK based employers will be reimbursed 80% of furloughed workers wage costs up to £2,500 per month.

More information can be found on the Governments website - https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme

Summary of the Coronaviris Job Retention Scheme

  • running for a minimum of 3 months from 1 March 2020 to 31 May 2020
  • open to all UK employers who had created and started a PAYE payroll scheme registered on HMRCs Real Time Information system ('RTI') on or before 19 March 2020
  • for employees on PAYE payroll on or before 19 March 2020 and notified to HMRC on RTI submission on or before 19 March 2020
  • employees on payroll at 28 February 2020 (i.e. notified in RTI on or before 28 February 2020) but made redundant (or stopped working) after 28 February 2020 but before 19 March 2020 can be re-employed and placed on furlough (even if not re-employed until after 19 March 2020) but there is no obligation for the 'old' employer to do this
  • an employee on furlough must be:
    • 'instructed … to cease all work in relation to their employment'
    • on furlough (or will have been on furlough) for 21 calendar days or more and
    • on furlough 'by reason of circumstances arising as a result of' COVID-19
  • can be furloughed more than once
  • cease work on behalf of the employer, connected employer and including indirect work
  • remain an employee
  • working on reduced hours or reduced pay not eligible
  • not all employees have to be placed on furlough but equality and discrimination laws apply
  • claim for 80% of the employee’s salary up to £2,500 a month
  • based on last pay period prior to 19 March 2020 (but, although salary as at 28 February 2020 if different may be used for the employer's first claim)
  • if variable claim higher of either amount earned in the same month 2018-2019 or an average of monthly earnings from 2019-2020
  • plus the associated Employer National Insurance contributions and pension contributions (up to the level of the minimum automatic enrolment employer pension contribution) on that subsidised furlough pay
  • subject to usual income tax and other deductions
  • employer can choose to pay more than the grant but do not have to
  • can be furloughed after original period of SSP entitlement (but subsequent SSP entitlement is disregarded)
  • 'shielding' can be furloughed
  • grant starts day of furlough and can be backdated to 1 March
  • employer can still make redundancies during furlough or afterwards

Under a directive issued by the Treasury on 15 April 2020, 'an employee [is] instructed by the employer to cease all work in relation to their employment only if the employer and employee have agreed in writing (which may be in an electronic form such as an email) that the employee will cease all work in relation to their employment'. This is potentially important. It appears to introduce two new requirements:

  1. an instruction from the employer to cease all work.
  2. an agreement in writing between employer and employee that the employee will cease all work.

Guidance issued late on 17 April 2020 (after the Directive) says: 'to be eligible for the grant employers must confirm in writing to their employee confirming that they have been furloughed. If this is done in a way that is consistent with employment law, that consent is valid for the purposes of claiming the CJRS. There needs to be a written record, but the employee does not have to provide a written response. A record of this communication must be kept for five years.' To be safe, if your employer has not complied with both of the elements under the Directive they may approach you to give this instruction and ask you to confirm in writing your agreement. If you do not they may not be able to claim. If you are unsure whether to agree get in touch with us.

Holiday has, finally, been clarified and:

  • employees continue to accrue leave
  • employees can agree to vary holiday pay entitlement
  • almost all workers are entitled to 5.6 weeks of statutory paid annual leave each year which cannot be reduced
  • employees can take holiday whilst on furlough
  • holiday pay must be paid at normal rate of pay or, where pay varies, based on an average received in the previous 52 working weeks (increased from 12 weeks on 6 April 2020)
  • if holiday is taken on furlough pay should be based on usual holiday pay and this means employers will be obliged to pay the additional amounts over the grant
  • employers have the flexibility to restrict when leave can be taken if there is a business need - which applies during the furlough period and the recovery period
  • employees who usually work bank holidays and this can be included within the furlough period but pay must be topped up to your pay or a day can be given in lieu

But note, the policy on holiday pay during furlough is being kept under review

You can report any fraud or request to work during furlough to HMRC via the online form at https://www.gov.uk/government/organisations/hm-revenue-customs/contact/customs-excise-and-vat-fraud-reporting

If you have been on furlough and reduced pay and go on to start a period of family leave, your statutory entitlement to pay should be based on your normal pay and not your furlough pay.

If you are on furlough and attend a meeting as a companion for a colleague you will not be ‘working’ so long as you do not provide services or generate revenue by doing so.

Read our blog on disciplinary, grievance and consultation meetings during furlough.

Self-employed Income Support Scheme

The Chancellor announced on 26 March 2020 direct cash grants to self-employed of 80% of average monthly trading profit over the last three years up to £2,500 per month for at least 3 months. The guidance was updated on 1 and 4 May 2020. The Treasury has also issued a Directive in relation to the Self-Employed Income Support Scheme ('SEIIS').

Find out more at https://www.gov.uk/guidance/claim-a-grant-through-the-coronavirus-covid-19-self-employment-income-support-scheme

There is also an online tool to check if you are eligible at https://www.tax.service.gov.uk/self-employment-support/enter-unique-taxpayer-reference

Emergency Volunteer Leave

The right

The Coronavirus Act 2020 has created Emergency Volunteer Leave; a new statutory right for workers to take emergency volunteer leave in blocks of two, three or four weeks.

Certification

This right is available to workers certified by an appropriate authority (a local authority, the NHS Commissioning Board or the Department of Health) to act as an emergency volunteer in health or social care.

Notice

To take the leave, workers need to give three working days' notice and produce the certificate confirming that they have been approved as an emergency volunteer.

Volunteer periods

Initially there will be one 16-week volunteering period beginning on 25 March 2020. Subsequent volunteering periods can be set by the Secretary of State for Health and Social Care.

Workers can take one period of leave in each "volunteering period".

No refusal

There is no provision for employers to refuse leave, for example, because of operational need.

Exemptions

Some workers will be exempt from the entitlement to take emergency volunteering leave such as workers employed or engaged by businesses with fewer than ten staff, Crown employees, Parliamentary staff and employees of the devolved assemblies in Wales, Scotland and Northern Ireland, employees in police service and other employees that may be defined in subsequent regulations.

Compensation

The leave is unpaid but a compensation fund provides compensation for loss of earnings, travel and subsistence only if they have suffered a loss.

Remain employees

During emergency volunteering leave, workers remain employees and all terms and conditions of employment except for remuneration.

The period of absence will not affect pension or benefit entitlements.

Right to return

There will be a statutory right to return to the job in which they were employed before the absence, on terms and conditions no less favourable.

Dismissal and detriment

Workers will be protected from detriment on the grounds that they sought to take, or made use of the benefits of, emergency volunteering leave, or that the employer believed that the worker was likely to take emergency volunteering leave.

Automatic unfair dismissal protection will be extended to cover employees dismissed for taking or seeking to take emergency volunteering leave or, where the employer believed that the employee was likely to take emergency volunteering leave.

Holiday entitlement and pay 

On 13 May 2020 the government issued specific guidance on holiday entitlement and pay during coronavirus (COVID-19) which followed revised furlough guidance on 17 April 2020.

In summary, it says that workers continue to accrue and can take and be required to take holiday, including whilst on furlough (except in limited circumstances – for example illness). There is a clear expectation that workers will take holiday during furlough.  

The guidance also provides clarification of when workers might be able to carry over 4 weeks holiday and take it in up to 2 subsequent leave year. In short, this is where the worker is required to work and there are no viable alternatives or the employer cannot afford to pay any top up payment between furlough (80%) and holiday pay (100%). 

Redundancy

There is a redundancy if there is a:

  • closure of the entire business
  • closure of the part of the business
  • reduced requirement for employees to carry out particular work.

If there are 20 or more employees at risk at one establishment a collective consultation process may need to be followed but special circumstances may also exist which means the employer does not need to comply in full with these requirements.

Employees with less than two years’ service are unlikely to be able to challenge any dismissal due to lack of process.

On redundancy, notice pay, holiday pay and statutory redundancy pay (if applicable) should be paid. For information can be found here

You may be able to claim any payments not made to you through the National Insurance Fund.

If you need advice, please call our specialist BLHR and Employment team. I am based in our Colchester office and can be contacted on 01206 217318 or julie.temple@birkettlong.co.uk.

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