Covid-19: Summary guidance for employers
- AuthorJulie Temple
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.
This removes the grey area that has existed about whether 'vulnerable' employees advised to 'social distance' are entitled to SSP. They are not.
Regulations have been made to provide for SSP from day 1 (currently day 4) (to be backdated to 13 March 2020) and will allow employers to reclaim SSP costs from government.
Evidence is not required for SSP during the first 7 days. After 7 days, 'Isolation Notes' will be available (obtainable online via NHS and 111).
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.
- open to all UK employers who had created and started a PAYE payroll scheme on 28 February 2020
- for at least three months from 1 March 2020
- reimburse 80% of furloughed employees’ usual monthly wage costs, up to £2,500 a month
- plus minimum automatic enrolment employer pension contributions on the subsidised wage
- on PAYE payroll on 28 February 2020 (employees hired after 28 February 2020 cannot be reimbursed under the scheme)
- covers employees made redundant since 28 February 2020 provided they are rehired
- employees cannot work during a period of furlough (but can work for another employer - although unclear if that work must have started before 28 February)
- volunteer work or training, as long as it does not provide services to or generate revenue for, is ok
- 3 weeks minimum period of furlough and be placed on furlough multiple times
- not apply to employees on unpaid leave unless they were put on unpaid leave after 28 February
- employees on sick leave or self-isolating should get Statutory Sick Pay, but can be furloughed after
- employees who are shielding in line with public health guidance can be placed on furlough
- pay can be less than national minimum/living wage
- must be paid the lower of 80% of their regular wage or £2,500 per month
- claim for the higher of:
- the same month's earning from the previous year
- average monthly earnings from the 2019-20 tax year
- regular payments, including wages, past overtime, fees and compulsory commission payments are included
- discretionary bonus (including tips), commission payments and non-cash payments are excluded
- not include non-monetary benefits, including taxable benefits in kind or salary sacrifice schemes
- employer can also choose to top up an employee’s salary beyond this but is not obliged to
- employees can return to duties or their employment ended
- employees return on same terms
In principle holiday can be taken (or required to be taken) during furlough but further guidance is hoped for to clarify if this is the case.
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.
- Claims will be by direct application to HMRC 'using a simple online form' and the money paid directly into people’s bank account.
- The scheme will be open to those with a trading profit of less than £50,000 in 2018-19 or an average trading profit of less than £50,000 from 2016-17, 2017-18 and 2018-19 and more than half their income in these periods must come from self-employment.
- HMRC will identify eligible taxpayers and contact them directly with guidance on how to apply.
- The scheme will cover the three months to May.
- Payments will be in a single lump sum instalment covering all 3 months.
- Payments will start to be made from the beginning of June.
- Individuals who pay themselves a salary and dividends through their own company are not covered. They will fall within the Coronavirus Job Retention Scheme.
- The scheme also applies to members of partnerships.
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.
Carry-over of holiday
Announced on 27 March 2020 workers who have not taken all of their statutory annual leave entitlement 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 are 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)'.
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).
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 email@example.com.