Covid-19: Summary guidance for employers
- AuthorJulie Temple
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 that ‘capacity’ to return for those who cannot work from home will be limited.
The new guidance for employers to make workplaces COVID-secure expected was published on 11 May:
The guidance within the government’s ‘Our plan to rebuild: The UK Government’s COVID-19 recovery strategy’, so far as returning to work and which applies from 13 May in England, can be summarised as:
- workers should continue to 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 are to 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
What is COVID-19 Secure?
Sector-specific guidance was also released on 11 May and is available at https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19 with eight guides covering specific types of workplace which employers will need to consider and follow.
With these points in mind business will need to consider:
- If they are required to remain closed
- If not, who cannot carry out their work from home and could attend work and continue to observe social distancing taking into account the relevant guidance
On 12 May 2020, Chancellor Rishi Sunak announced the furlough scheme will be extended to the end of October 2020, with no changes until the end of July. Over the three months 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 an employee is ready, willing and able to work, but for whatever reason the employer does not provide them with work or sends them home they are, in principle, entitled to full pay.
If they are unwell they are 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 those who are at high risk and 'shielding' 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 work checks
Temporary changes have been made to the steps employers must follow to check an employee's right to work due to the COVID-19 outbreak to make the recruitment process easier for employers.
From 30 March 2020, employers should:
- ask the individual to submit a scanned copy or a photo of their original documents by email or using a mobile app.
- arrange a video call with the individual and ask them to hold up their original documents to the camera so that they can be checked against the digital copy they have been sent.
- record the date they conduct the check and note "Adjusted check undertaken on [insert date] due to COVID-19" on a copy of the documents.
Where the individual has a Biometric Residence Permit, Biometric Residence Card or status under the EU Settlement Scheme, employer should use the online checking service during a video call with the individuals permission to view their details.
Where the individual cannot provide the required documents, the employer should contact the Home Office's Employer Checking Service. If the individual has the right to work, the employer will receive a "positive verification notice". This provides a statutory excuse for six months from the date of the notice.
When the temporary measures end, employers have eight weeks to carry out retrospective right to work checks, in the usual way. On the copy of any documents reviewed as part of the retrospective check, the employer should note "The individual's contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19". Copies of both checks should then be held on file.
Government support: Coronavirus job retention scheme
UK based employers will be reimbursed 80% of furloughed workers wage costs up to £2,500 per month.
- 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)
- 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 furlough 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 or nothing but when deciding who to offer furlough to equality and discrimination laws apply
- portal expected to be up and running by 20 April 2020
- claim for 80% of the employee’s salary up to £2,500 a month
- it is salary based on their last pay period prior to 19 March 2020 (but, if, based on previous guidance, you have calculated your claim based on the employee’s salary as at 28 February 2020 (and this differs from their salary in their last pay period prior to 19 March 2020) you can choose to still use this calculation for your 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
- 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
- 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:
- an instruction from the employer to cease all work.
- 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.'
Any employer who has not complied with both elements under the Directive may, to be safe, want to approach all employees where this has not been done to give this instruction and ask the employee to confirm in writing their agreement. Any employer who does not (in respect of any employee who has not given agreement in writing) may not be able to claim. If you are unsure whether to do so 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!
Employees on furlough who attend a meeting as a companion for a colleague will not be ‘working’ as long as they 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').
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 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.
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.
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.
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".
There is no provision for employers to refuse leave, for example, because of operational need.
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.
The leave is unpaid but a compensation fund provides compensation for loss of earnings, travel and subsistence only if they have suffered a loss.
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.
- workers on furlough continue to accrue holiday and can take holiday
- employers can give notice to workers (including furloughed workers) to:
- take holiday
- cancel holiday
- statutory notice requirements to take holiday are twice the period of the holiday that is to be taken (e.g. to take one day, two days' notice must be given and so on)
- statutory notice requirements to cancel holiday are the period of the holiday that is to be cancelled (e.g. to cancel one day, one day's notice must be given and so on)
- contracts may provide for different periods of notice and the notice requirements can be waived by agreement between the employer and worker!
- employers can require workers to work bank holidays which would ordinarily be holiday by giving
- workers on furlough whose entitlement includes bank holiday can take the bank holiday as holiday or receive a day in lieu (providing notice was given to cancel)
- any holiday taken must be paid at the worker's 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)
- a worker on furlough, and being paid 80% with no top up, should be paid the 20% difference by the employer (and the employer will still be entitled to claim and receive the 80% grant)
Carry over of annual leave
Workers who have not taken all of their statutory annual leave entitlement (meaning 4 weeks) due to COVID-19 will be able to carry it over into the next 2 leave years with a corresponding right to be paid on termination if they have not had chance to take it.
It can be carried over where it was not reasonably practicable to take it in the leave year 'as a result of the effects of the coronavirus (including on the worker, the employer or the wider economy or society)'. Factors to consider include:
- any significant increase in demand that reasonably required the worker to continue to be at work
- any practical options to provide temporary cover of essential activities
- health of the worker
- length of time remaining in the worker’s leave year
- the extent taking leave would impact on wider society’s response to, and recovery from, the coronavirus situation
- the ability of the remainder of the available workforce to provide cover
- ability to fund the difference in holiday pay - if the employer cannot afford to do so, the guide says this is likely to make it not reasonably practicable for the worker to take leave (although it may be possible to agree the top up payment is paid at a later date)
Sensibly, the guidance makes it clear that employers should do everything reasonably practicable to ensure worker are able to take as much of their leave as possible and, if leave is carried forward, workers have the opportunity to take holiday at the earliest practicable opportunity. It also makes clear that workers on furlough are unlikely to need to carry forward statutory annual leave.
How long can employees can be laid off work?
An employer may be able to ask its employees to stay at home or take unpaid leave if there’s not enough work, but it is important to check the contractual position.
There is no limit to how long employees can be laid off or put on short-time but employees may 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
Postponement of gender pay gap reporting
On 24 March 2020 the decision was taken by the Government Equalities Office and the Equality and Human Rights Commission to suspend enforcement of the gender pay gap deadlines for this reporting year which meant employers were due to file reports by 30 March (public sector) or 4 April (private sector).
For more information click here
The portal to make a claim is open. Short guidance and ‘start’ is accessed here:
But further guidance about whether you can claim, how much (including a calculator) and a step by step guide is available to:
We understand payments will be made by the end of April if claimed by 22 April 2020.
We are also available if you have any queries.
If you have any concerns or questions relating to Right to lay-off and short-time working please call Julie Temple on 01206 217318 or email firstname.lastname@example.org.