The new regulations will allow up to 4 weeks of unused leave to be carried into the next 2 leave years, easing the requirements on business to ensure that workers take statutory amount of annual leave in any one year.
Rules on carrying over annual leave to be relaxed to support key industries during COVID-19
Business Secretary Alok Sharma today (Friday 27 March) announced that workers who have not taken all of their statutory annual leave entitlement due to COVID-19 will now be able to carry it over into the next 2 leave years, under measures introduced by the (as yet unpublished) Working Time (Coronavirus) (Amendment) Regulations 2020 which amends regulation 13 of the Working Time Regulations which apply to almost all workers, including agency workers, those who work irregular hours, and workers on zero-hours contracts.
The regulations will allow up to 4 weeks of unused leave to be carried into the next 2 leave years, easing the requirements on business to ensure that workers take statutory amount of annual leave in any one year. The balance of 1.6 weeks’ statutory leave will not be affected (although it can be carried over for up to a year by agreement under existing law).
This will mean staff can continue working in the national effort against the coronavirus without losing out on annual leave entitlement.
Business Secretary Alok Sharma said: “Today’s changes will mean these valued employees do not lose out on the annual leave they are entitled to as a result of their efforts, and employers are not penalised.”
The Working Time (Coronavirus) (Amendment) Regulations 2020 amends the Working Time Regulations 1998 to create a further exemption relating specifically to COVID-19. Where it is not reasonably practicable for a worker to take some, or all, of the holiday to which they are entitled due to the coronavirus, they have a right to carry the 4 weeks under regulation 13 into the next 2 leave years. This will not apply to the 1.6 weeks under regulation 13A leave, but this can be carried forward one year by agreement between workers and employers.
Support for Employers
If you are an employer affected by any of the issues being created by the outbreak of Coronavirus and require further assistance and support, call us now on 0800 612 4772 or Contact us via our website.
Yesterday we outlined for you the “unofficial” position on how the Coronavirus Job Retention Scheme would work and it looks like our sources were spot on!
Key Points of the Coronavirus Job Retention Scheme
The government have now published further details of the Coronavirus Job Retention Scheme (otherwise known as the Furlough Scheme) and we have outlined below the key points published on their website, some of which had not previously been announced:
the scheme is open to all UK employers that had a PAYE scheme in place on 28 February 2020
any organisation with employees can apply, including charities, recruitment agencies and public authorities; however, the government does not expect public sector employers to use it as long as central government continues funding wage costs in the normal way. With agency employees, the scheme is only available for agency employees who are not working.
employers can reclaim up to 80% of wage costs up to a cap of £2,500 per month, plus (not including) the associated employer NICs and minimum autoenrollment pension contributions on that wage. Fees, commissions and bonuses are not included.
an employer can choose to top up to 100%, but does not have to (subject to employment law and renegotiating any contractual entitlements)
for employees whose pay varies, the employer can claim for the higher of (i) the same month’s earning from the previous year (eg earnings from March 2019); or (ii) average monthly earnings in the 2019-20 tax year
individuals are only entitled to the minimum wage for the hours they work. So, if they are furloughed and do not work, and 80% of their normal earnings would take them below the minimum wage based on their normal working hours, they still only receive 80% as they are not working. However, they are entitled to be paid NMW for any time spent training.
to be eligible, the employee must have been on the payroll on 28 February 2020. If they were hired later, they are not eligible. Anybody who was on the payroll on 28 Feb and has since been made redundant can be rehired and put on the scheme
furlough leave must be taken in minimum blocks of three weeks to be eligible for funding
there is nothing in the guidance which prohibits rotating furlough leave amongst employees, provided each employee is off for a period of at least three weeks
the employee must not be working at all. If they work for even an hour (presumably during their entire three-week furlough period), they are not eligible. However, they are able to undertake training and do volunteer work, provided they do not provide services to or make any money for their employer.
when agreeing changes in hours (and acceptance of 80% pay), assuming the contract does not already allow for that, normal employment law applies. The employer must be careful not to discriminate in deciding who to offer furlough too. Prioritising vulnerable workers is unlikely to be discrimination, as prioritising the over 70s (direct age discrimination against those under 70) is almost certainly justifiable, and those who do not suffer from serious health conditions are not a protected class.
employees on sick pay or self-isolating cannot be furloughed but can be furloughed afterwards. Employees who are shielding can be placed on furlough.
employees on maternity (or similar) leave can continue to draw SMP (or similar) payments. The guidance does not prohibit women on maternity leave agreeing to return to work early and then being furloughed or electing to change to shared parental leave and then being furloughed.
employers can only claim once every three weeks, ie they cannot get weekly reimbursement. Claims can be backdated to 1 March 2020.
The government will issue further guidance on the mechanics of claiming the payment in due course. It says it expects the scheme will be up and running by the end of April. In the meantime, read the full guidance here.
Full details of how the Coronavirus Retention Scheme have not been officially published yet but via one of our reliable information sources we have had sight of an FAQ email on the subject, sent by a backbench MP. It gives information about the Furlough Scheme which has not previously been released and some further insight to how it might work.
To be clear, this is NOT an official government announcement and therefore may be subject to change, but with this clear health warning given, here is the the full text of the FAQs.
Any large or small employer can apply to put workers on temporary leave or “furloughed” status.
The government will then pay them cash grants of 80 per cent of their wages up to a cap of £2,500, providing they keep the worker employed.
They will receive the grant from HMRC.
All UK organisations can self-certify that it has furloughed employees. The scheme will cover the cost of wages backdated to March 1. All UK-wide employers with a PAYE scheme will be eligible, including the public sector, local authorities and charities.
The scheme will be open initially for at least 3 months.
But we will extend it for longer if necessary. There is no limit on the amount of funding available for the scheme.
We expect the first grants to be paid within weeks.
HMRC are working night and day to get the scheme up and running and we’re aiming to get it done before the end of April. Existing systems are not set up to facilitate payments to employers.
Job Retention Scheme FAQs
Do individuals still have to pay tax on this?
Yes – individuals will pay Income Tax and National Insurance on any payments received through this scheme as they are replacement for income in line with normal practise for benefits or grants that replace income.
Will this cover the cost of employer National Insurance contributions and employer pension contributions?
Yes – employers will be able to apply for a grant to cover the Employer National Insurance contributions and minimum automatic enrolment pension contributions on paying the lower of 80% of regular salary or £2,500 per month.
How will this work for those on zero-hour/flexible contracts/agency workers?
This scheme aims to support all those employed through the PAYE system regardless of their employment contract, including those on zero-hour contracts.
Zero-hour and flexible contracts can cover a whole range of working arrangements.
The 80% grant is applied to the higher of: (1) the earnings in the same pay period in the previous year; or (2) the average earnings in the whole previous 12 months (or fewer if they have worked for less time than this, including a part month calculation if they were taken in February).
Can a business furlough someone after hearing the announcement and then claim back to March 1st even though they had been working that whole time?
No – the scheme is backdated to March 1st with a view to covering those who have already been made redundant as a result of the coronavirus.
What about employees taken on after 1 March?
They are excluded from the scheme.
To qualify, does the business need to be ‘essential’?
No, all businesses which employ and pay workers through the PAYE system are eligible.
Why are you not supporting me if my hours are reduced?
The scheme is designed to help those who otherwise would have been made unemployed. We recognise that some people will work fewer hours.
We have strengthened the welfare system to support those whose hours change including an increase to the UC standard allowance and the working tax credit basic element.
This builds on the initial package announced at Budget including enhancements to contributory employment support allowance, which will now be available from day 1and making advances for all new UC claimants available online with no requirement to attend a job centre.
Why isn’t this supporting part-time working?
The scheme is designed to help those who otherwise would have been made unemployed.
The public health guidance is clear that people should stay at home unless they are a key worker.
Can my employer top this up?
Yes. In order to qualify for the scheme, employers must pay their staff at least 80% of wages, up to the cap of £2,500 per month. It is up to them if they wish to top up the additional 20 per cent.
What about employees that have already been made redundant?
The scheme will be back dated to March 1 with a view to covering those who have already been made redundant due to the Coronavirus outbreak.
If firms re-employ staff made redundant after March 1 , they are eligible to then be furloughed and the employer would qualify for the grant.
Can my employer sack me while I’m on furlough? Is my employer allowed to sack me as soon as the furlough scheme comes to an end?
Yes, you can still be made redundant while on furlough or immediately after. There is no requirement to bring the employee back to work after the period of furlough. If an employee is made redundant during the period of furlough then grant payments will cease.
However, in both cases normal redundancy rules and protections will apply.
Where a business feels that redundancy is the only option, this must still follow the rules which include giving a notice period and consulting staff before a final decision is reached.
Can I be furloughed for a short period of time, e.g. a week or a couple of days, and then re-employed?
A worker must be furloughed for a minimum of 3 weeks for their employer to be eligible to claim under this scheme.
This is consistent with the public health guidance seeking to minimise the number of people outside of their homes on a regular basis. The scheme supports employers asking the maximum number of employees to remain at home during the coronavirus outbreak.
A clear minimum period also aids a clear definition of who is and who is not furloughed.
Can I volunteer or do training whilst furloughed?
If you are furloughed you cannot work for your employer during this period.
You can volunteer or train, provided that this does not involve the manufacture or creation of an item or part thereof than can yield revenue for the company, the provisions of services to the company, or the provision of any service that can yield revenue for the company. Firms can require workers to undertake training from home, provided it meets the above.
Once we have more information we’ll update our website so bookmark our site and keep checking for updates.
If you are an employer affected by any of the issues being created by the outbreak of Coronavirus and require further assistance and support, call us now on 0800 612 4772 or Contact us via our website.
In his latest announcement this afternoon, the Chancellor Rishi Sunak has outlined details of the government rescue package for self-employed individuals.
The key elements announced today include:
a new self-employed income support scheme will pay self-employed people a taxable grant worth 80% of average monthly income, capped at £2,500pm
income will be calculated by taking the average of income over the last three years
self-employed people can claim these grants and continue to do business (so it’s not the same as furlough leave, where employees have to remain at home)
the scheme is only open to anyone with trading profits of up to £50k (this covers 95% of self-employed people). Self-employed people who earn more will not qualify.
the scheme is only open to those who make the majority of income from self-employment; if you are employed but have a ‘side job’ which is self-employed, you will not be eligible
the scheme is only those who have submitted a tax return for 2019 (this is to minimise fraud). However, those who did not submit their tax return by the due date of 31 January 2020, and have not yet submitted one, can still submit a tax return for 2019 for a further four weeks from today
there are no steps to take. HMRC will contact eligible self-employed people directly and pay the grant straight into their bank account after inviting them to fill out an online form
the self-employed income support scheme will be open to people across UK for at least 3 months. However, the scheme is unlikely to be up and running before the end of June, so it will not help with immediate cash flow issues.
What was announced today was the key elements of the scheme but the full details of how the scheme will work are not yet available. Once more information becomes available we will share it.
Unprecedented restrictions and a national lockdown across the United Kingdom to combat the rapid spread of COVID-19 (Coronavirus)
Prime Minister Boris Johnson addresses the Nation
In his address to the Nation this evening, Prime Minister Boris Johnson urged UK Citizens to “Stay at Home, Protect our NHS and Save Lives”
From tonight, you can only leave your house for:
Shopping for basic necessities (as infrequently as possible)
One form of exercise per day, alone or with members of your household only.
A medical need to provide care or help a vulnerable person.
Travelling to and from work, only if absolutely necessary and only if you are unable to work from home.
These immediate restrictions include:
Closing all shops selling non-essential goods, including clothing and electronic stores, libraries, parks, places of worship.
Banning all social events, except funerals
The Prime Minister confirmed that Police will have powers to enforce the new restrictions including the powers to disperse gatherings and issue fines.
What Do Coronavirus Restrictions Mean for Employers
This evening’s announcement fell short of mandating all non-essential businesses to close and by saying ” Travelling to and from work, only if absolutely necessary and only if you are unable to work from home” caused more confusion and anxiety for Employers and employees alike.
Whilst no clear definition of what constitutes an “essential” business was given by the PM during this evening’s announcement, we can look to the government definition of ‘Key Workers” for some guidance.
The government defines Key Workers as:
Health and social care
This includes but is not limited to doctors, nurses, midwives, paramedics, social workers, care workers, and other frontline health and social care staff including volunteers; the support and specialist staff required to maintain the UK’s health and social care sector; those working as part of the health and social care supply chain, including producers and distributers of medicines and medical and personal protective equipment.
Education and childcare
This includes childcare, support and teaching staff, social workers and those specialist education professionals who must remain active during the COVID-19 response to deliver this approach.
Key public services
This includes those essential to the running of the justice system, religious staff, charities and workers delivering key frontline services, those responsible for the management of the deceased, and journalists and broadcasters who are providing public service broadcasting.
Local and national government
This only includes those administrative occupations essential to the effective delivery of the COVID-19 response, or delivering essential public services, such as the payment of benefits, including in government agencies and arms length bodies.
Food and other necessary goods
This includes those involved in food production, processing, distribution, sale and delivery, as well as those essential to the provision of other key goods (for example hygienic and veterinary medicines).
Public safety and national security
This includes police and support staff, Ministry of Defence civilians, contractor and armed forces personnel (those critical to the delivery of key defence and national security outputs and essential to the response to the COVID-19 pandemic), fire and rescue service employees (including support staff), National Crime Agency staff, those maintaining border security, prison and probation staff and other national security roles, including those overseas.
Transport
This includes those who will keep the air, water, road and rail passenger and freight transport modes operating during the COVID-19 response, including those working on transport systems through which supply chains pass.
Utilities, communication and financial services
This includes staff needed for essential financial services provision (including but not limited to workers in banks, building societies and financial market infrastructure), the oil, gas, electricity and water sectors (including sewerage), information technology and data infrastructure sector and primary industry supplies to continue during the COVID-19 response, as well as key staff working in the civil nuclear, chemicals, telecommunications (including but not limited to network operations, field engineering, call centre staff, IT and data infrastructure, 999 and 111 critical services), postal services and delivery, payments providers and waste disposal sectors.
If your business doesn’t fall under one of the key worker definitions noted above it’s likely it would be defined as “non-essential” and may need to close. We await further clarity from the UK government on this specific point.
In the meantime, many Employers have already introduced their own measures in response to the Coronavirus outbreak, having introduced home working where possible, but for many other Employers who aren’t providing essential services, these more stringent restrictions may require them to temporarily layoff staff who cannot be redeployed to work from home.
So What Next For Employers?
We have already shared a variety of articles and resources to assist Employers to navigate through the Coronavirus crisis up to this point, but in light of these latest restrictions we can provide specific advice and support to Employers now facing temporary closure to ensure they implement staff layoffs correctly and understand how the Coronavirus Staff Retention Fund can be accessed. Call us on 0800 612 4772 or Contact Us via our website.
Additional Information and Resources for Employers
The COVID-19 pandemic is continually changing and the government advice for employers is being updated as the situation develops. Employers should keep track of the guidance for employers from the following sources:
Health Protection Scotland: COVID-19: Information and Guidance for Non-Healthcare Settings (applicable in Scotland).
Following our confirmation yesterday about the Government’s announcement of the Coronavirus Job Retention Scheme, details were limited. We now know how Employers can access the Scheme.
Furloughed Workers Status
We confirmed yesterday the Chancellor’s announcement of the creation of the Coronavirus Job Retention Scheme, intended to allow UK Employers to apply for grants to cover 80% of an employee’s salary up to a maximum of £2,500 per month, but details of how the scheme would operate were still a work in progress.
To access support from the Coronavirus Job Retention Scheme, Employers will first need to designate employees as “furloughed workers”. It’s important to note that currently, the status of “furloughed workers” has no legal definition and is merely a general description used to describe employees who would otherwise have been laid off or made redundant.
How the Coronavirus Job Retention Scheme Will Work
For those Employers who may have already imposed temporary layoffs either having exercised an express Term in the contract of employment allowing them to do so, or by first seeking the consent of the affected employees, the process for re-designating laid off employees should be relatively straightforward but for Employers who have not yet laid off employees, the process will differ slightly.
Employment Law Services (ELS) can advise Employers on the appropriate steps they need to take and can provide support with drafting the necessary letters Employers will need to ensure they meet their legal obligations and re-designate employees correctly on a fixed fee basis. Request a call back and we will contact you to discuss your specific requirements.
Once employees have been re-designated as “furloughed workers”, Employers will need to submit information to HMRC about the employees that have been furloughed and their earnings through a new online portal.
Note: At the time of writing this article HMRC have not yet set out the details of how this portal or the information required but this will undoubtedly follow in the coming days. Keep checking our website and/or follow us on Facebook and Twitter for further updates.
Employers should note that to qualify for this scheme, employees who would otherwise have been laid off without pay or made redundant would need to be kept on the payroll and the employees should not undertake work for their Employer while they are furloughed.
The government intends to run the Coronavirus Job Retention Scheme for at least 3 months from 1 March 2020 but will extend if necessary.
Full details of how the scheme will be managed and monitored have not yet been released but once we have more information we’ll update you so bookmark our site and keep checking for updates.
Other financial support available to UK Employers includes:
deferring VAT and Income Tax payments
a Statutory Sick Pay relief package for SMEs
a 12-month business rates holiday for all retail, hospitality and leisure businesses in England
small business grant funding of £10,000 for all business in receipt of small business rate relief or rural rate relief
grant funding of £25,000 for retail, hospitality and leisure businesses with property with a rateable value between £15,000 and £51,000
the Coronavirus Business Interruption Loan Scheme offering loans of up to £5 million for SMEs through the British Business Bank
a new lending facility from the Bank of England to help support liquidity among larger firms, helping them bridge coronavirus disruption to their cash flows through loans
the HMRC Time To Pay Scheme
Support for Employers
If you are an employer affected by any of the issues being created by the outbreak of Coronavirus and require further assistance and support, call us now on 0800 612 4772 or Contact us via our website.
It would appear that the fiscal rule book has been thrown out the window given the unprecedented impact the Coronavirus crisis is having, with this latest announcement by the Chancellor being the third significant promise of financial support in as many days.
Significant announcements from the Prime Minister and Chancellor in today’s Coronavirus Press Conference.
One of the key measures announced by the Chancellor was the creation of the Coronavirus Job Retention Scheme, intended to allow UK Employers to apply for grants to cover 80% of an employee’s salary up to a maximum of £2,500 per month.
In making his announcement the Chancellor made an appeal directly to employers to stand by their workers during the coronavirus crisis, saying; “Let me speak directly to businesses: I know it’s incredibly difficult out there – we in government are doing everything we can to support you. The government is doing its best to stand behind you and I’m asking you to do your best to stand behind our workers.”
Full details of these latest measures and how they will actually work have not yet been revealed but will no doubt follow in the coming days, however we understand that Employers will be able to apply for these grants via HMRC.
Other measures announced included:
Cafes, pubs and restaurants must close from Friday night, except for take-away food, to tackle coronavirus.
All the UK’s nightclubs, theatres, cinemas, gyms and leisure centres have also been told to close “as soon as they reasonably can”.
The Prime Minister said the situation would be reviewed each month.
Bookmark our blog and/or subscribe to our newsletter for regular updates.
Additional Advice and Support
If you are an employer who requires assistance with any of the issues raised here, call us now on 0800 612 4772 or Contact us via our website.
The UK government have today launched a new online isolation note service to enable people with symptoms of coronavirus or those living with someone who has symptoms, and so cannot work, to provide their employers with evidence they have been advised to self-isolate.
The government says the notes can be accessed through the NHS website and NHS 111 online and we can confirm that the service is now live and working.
According to Matt Hancock, the Health & Social Care Secretary, if an employee does not have an email address, they can have the note sent to a trusted family member or friend, or directly to their employer. The service can also be used to generate an isolation note on behalf of someone else.
The rapid spread of COVID-19, aka Coronavirus, continues to have an immediate and adverse impact on businesses throughout the UK and after yesterday’s announcement that all UK Schools will close from this coming Friday and more restrictions to free movement of people likely to follow in the coming days and weeks, it is unlikely that the pressure on Employers will let up any time soon.
The Impact on UK Employers
Many Employers have seen demand for their products and/or services disappear almost entirely over a very short period of time and as the Coronavirus outbreak continues to spread rapidly and government-imposed restrictions continue to escalate, many Employers are quickly finding that they may no longer be able to provide work for all of their employees.
During these difficult and challenging times it is important to note that this unprecedented crisis doesn’t magically overwrite current employment legislation and provide employers with any special powers to circumvent existing employment laws, nor does it provide a viable defence in any subsequent employment tribunal claims that may follow in the event of knee-jerk reactions by Employers.
Emergency Legislation
The only emergency legislation that has been passed was the amendment to regulation 2, The Statutory Sick Pay (General) Regulations 1982 (SSP Regulations) which was amended by the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 to introduce a new regulation 2(1)(c), with effect from 13 March 2020. Regulation 2(1)(c) provides that a person is deemed incapable of work where he is:
“isolating himself from other people in such a manner as to prevent infection or contamination with coronavirus disease, in accordance with guidance published by Public Health England, NHS National Services Scotland(d) or Public Health Wales(e) and effective on 12th March 2020.”
To date, no other emergency legislation has been passed that would allow employers to be “flexible” with the terms and conditions of their employees or current employment legislation and therefore the normal rules still apply, unless or until further emergency legislation is introduced.
What can Employers do to mitigate the risk?
Redundancies are usually the last resort for Employers struggling to provide work for all of their employees but before pushing the redundancy button, Employers should explore ways of avoiding compulsory redundancies to minimise the impact on employees. Measures which may assist in avoiding compulsory redundancies include:
Asking employees to take paid holidays. Employers can require employees to take holidays at specific times provided they serve them the necessary notice (twice as long as the holiday being taken) unless the contract of employment provides for shorter notice or the employee agrees to a shorter period of notice.
Asking employees to voluntarily reduce their working hours. Any agreement to a variation to working hours and pay would need to be set out in writing. However, if employees don’t volunteer or consent to a proposal to reduce their working hours, and you are seeking to vary the working hours of 20 or more employees, you will need to undertake collective consultation either with a recognised trade union or elected employee representatives.
Introduce short time working or temporary layoffs. Where there is an express term in the contract of employment or an implied term by virtue of custom and practice, Employers can introduce short time working and/or temporary layoffs by serving the necessary notice. Some short time working, and temporary layoff clauses set out specific notice obligations and some simply require as much notice as is reasonably practicable so check your contracts to ensure you meet your contractual obligations.
What if there is no express or implied term in the contract of employment?
In the absence of an express or implied term in the contract of employment providing for short time working and/or temporary layoffs, Employers must tread carefully. Unilaterally imposing either measure could constitute a breach of contract and lead to claims of unlawful deduction of wages or breach of contract and constructive dismissal.
If you have already considered but ruled out asking employees to take holidays, you could propose a variation to their existing contracts of employment in order to introduce a short time working and temporary layoff provision, but this would need to be set out in writing and consent would need to be obtained from the employees. However, if employees don’t volunteer or consent to a proposal to reduce their working hours, and you are seeking to vary the working hours of 20 or more employees, you will need to undertake collective consultation either with a recognised trade union or elected employee representatives.
Redundancies. If after exploring all other options redundancies is the only way forward, Employers should first check the contracts of any bank workers, agency workers or contractors to determine whether these can be terminated. If this doesn’t alleviate the problem, then employee redundancies may be the only option and you will need to commence formal redundancy procedures which will require consultation. If the number of redundancies is 20 or more within 90 days, you will need to undertake collective consultation either with a recognised trade union or elected employee representatives.
Support for Employers
If you are an employer affected by any of the issues being created by the outbreak of Coronavirus and require further assistance and support, call us now on 0800 612 4772 or Contact us via our website.
As the restrictions imposed by Government as a result of the rapid spread of the COVID-19 (Coronavirus) outbreak increase, many Employers are reviewing their business continuity plans to ensure they can continue to operate. This article focuses on Homeworking and Travel and how Employers can manage the implications the Coronavirus may create.
If you are an employer affected by any of the issues being created by the outbreak of Coronavirus and require further assistance and support, call us now on 0800 612 4772 or Contact us via our website.
Homeworking
Are we entitled to require an employee to work from home?
If there is already an established requirement to work from home where appropriate or where instructed to do so (or in the case of a business continuity issue such as a pandemic), then there is unlikely to be an issue in applying that obligation in an effort to contain the spread of COVID-19.
If not, imposing home working would arguably constitute a variation of the contract requiring employee consent. However, where an employee is faced with either being on SSP or nil pay as an alternative, they may well be willing to consent to working from home as a way of preserving pay. There are alternative methods of changing terms and conditions of employment, but in the circumstances and given the time sensitive nature of the COVID-19 outbreak, employee consent is likely to be the most realistic means of validly imposing a home working requirement where none previously existed.
Where home working is being newly introduced, or expanded, the employer should ensure that the health and safety implications have been considered and that the necessary infrastructure is in place.
Can we refuse to allow an employee to work from home if they will also be looking after children who have been sent home from school or nursery?
In normal circumstances, it would not be appropriate for an employee to work from home while also providing childcare. However, as the COVID-19 outbreak escalates, employers may need to take a pragmatic approach. If all schools and nurseries close, the majority of parents in the workplace will face this issue and putting a blanket ban on working from home while also looking after children may preclude a large proportion of the workforce from performing any duties. In these unprecedented circumstances, employers may be prepared to take a more relaxed and flexible approach to homeworking and allow employees to work around their childcare responsibilities.
Employees with younger children who require constant attention may not be able to work at all while responsible for looking after those children. However, they may be able to split the childcare with the other parent, so that both parents are able to, at least, continue working part-time.
Employees in these circumstances may assert their right to time off to care for a dependant. Time off in these circumstances is unpaid, unless there is a contractual right to pay. Given that school closures could last a relatively long time, it is likely that many employees who consider that they can undertake some work while providing childcare would prefer to do so (rather than assert their statutory right to time off) if the employer is willing to allow them to work flexibly.
Are there any home-working health and safety issues we should consider?
Yes. An employer is responsible for an employee’s welfare, health and safety, “so far as is reasonably practicable” (section 2(1), Health and Safety at Work etc Act 1974). Employers must conduct a suitable and sufficient risk assessment of all the work activities carried out by their employees, including homeworkers, to identify hazards and assess the degree of risk (regulation 3, Management of Health and Safety at Work Regulations 1999 (SI 1999/3242)).
Travel
Can an employer require an employee to undertake work-related travel overseas?
This depends upon the nature of the FCO advice on travel to the areas of the country in question. It would not, ordinarily, be appropriate to continue to require work travel to areas which the FCO has advised against travelling to. In most cases it would not be a reasonable request to require travel to such areas, and it may breach the employer’s health and safety obligations, and the obligation of trust and confidence, to impose such a requirement on employees. It could even result in a personal injury claim should the employee contract the illness while undertaking work-related travel in these circumstances.
However, there will be some roles (for example, certain journalists) where the nature of the job is such that the employee can be reasonably expected to travel to areas which are dangerous in some way. In those, relatively unusual, cases where travelling to the area where COVID-19 is particularly prevalent is part of the role, the employer would still need to consider its health and safety obligations and what measures should be put in place to minimise the risk. The employer should also consider whether the employee in question has a pre-existing health condition, or other characteristic, which puts them at higher risk of contracting COVID-19 and developing a serious illness.
What is the position where an employee is stranded overseas on a work trip?
If an employee is unable to travel home because they have contracted COVID-19 and are either not permitted to travel or too unwell to do so, the employer could treat them as being on sick leave in terms of pay, although most employers would likely continue to pay full pay in these circumstances. The employer would also need to consider the additional expenses incurred by the employee in terms of accommodation and subsistence and ensure that assistance is provided to make arrangements, and that the employee is reimbursed for such expenses. If medical assistance is required, the employer should ensure that the employee is able to access its business travel insurance policy, and that such other assistance as may be appropriate is provided.
If the employee is unable to travel home because they are subject to lockdown or precautionary isolation and unable to access transport home, similar considerations will apply. However, the employee should continue to receive full pay on the basis that they are only in that situation because their employer sent them overseas.
If there is a breakdown in the pre-arranged transport home (for example, due to flight cancellations), the employer should explore other options to repatriate the employee. The employer remains bound by its implied duties towards the employee, and it is likely that its ongoing responsibilities towards the employee would require the employer to make reasonable efforts to find a way for the employee to return home, at the employer’s expense. The contractual position and any policy on overseas travel should also be considered.
What is the position where an employee is stranded overseas following a holiday?
Where the employee is unable to travel home because they have contracted COVID-19 and are either not permitted to travel or too unwell to do so, the employer should treat them as being on sick leave in terms of pay. The employee is entitled to take annual leave if they prefer to do so, but they cannot be compelled to do so.
Where the employee is unable to travel home because they are subject to lockdown or precautionary isolation and unable to access transport, their entitlement to pay will depend upon the precise circumstances.
Can an employee still be required to travel to a work event within the UK?
This will depend upon the current government and public health advice on travelling and attending events within the UK, and the nature of any objections from the particular employee. If there is no public health advice against taking this action then, in principle, employers are entitled to continue to impose such a requirement (assuming the employer is otherwise entitled to require the employee to do so).
However, the employer would need to consider whether the employee falls into one of the high-risk categories. If so, the employer should consider whether it would be putting the employee’s health and safety at risk by asking them to travel to and attend the event. It should also consider whether the employee has any rights under the EqA 2010 if the reason that they are at high-risk is linked to a protected characteristic. For example, an employee who suffers from a disability which suppresses their immune system or affects their respiratory system may claim that it is indirect discrimination or discrimination arising from disability to ask them to travel in these circumstances.
The employer should consider whether attendance at the event is really necessary, even if the employee does not fall into a high-risk category, given that many employees will have understandable anxiety about long journeys on public transport and attending large events.
Can an employer restrict employees’ travel during non-working time?
Employers could consider instructing employees not to travel to areas where the government advice is to avoid travel in light of the coronavirus outbreak (see GOV.UK: Travel advice: coronavirus (COVID-19). However it is questionable whether this could be regarded as a reasonable management instruction given that it dictates what an employee can do with their leisure time, rather than how to do their job.
The employer could also consider advising the workforce that anyone who does travel to such an area will be required to remain at home on their return, and that contractual pay (including contractual sick pay) will not be payable in respect of such self-isolation. The employer would need to consider whether taking that approach amounts to a breach of contract or unilateral change in terms and conditions.
If the employer does issue any directions in terms of non-work-related travel, it should consider whether any requirements or conditions on sick pay are indirectly discriminatory. For example, if the employer attempts to restrict travel to certain countries, employees who are nationals of those countries could, potentially, claim indirect discrimination on the basis that the employer’s new policy disproportionately affects them. It is likely that any such claim would come down to the proportionality of the employer’s response. Also, if the employer attempted to revoke the employee’s annual leave to prevent them from travelling, similar questions would arise. Revoking annual leave may not be a realistic response in any event given the notice requirements in the Working Time Regulations 1998 (SI 1998/1833).
Even where the employer attempts to impose a new travel restriction of this sort, it is questionable whether the employee commits a disciplinary offence in contravening it, given that it is unlikely to be regarded as reasonable to restrict employees’ leisure activities.
Where an employee returns from a holiday in a high-risk area, can they be required to stay away from work?
It is likely that an employer could require employees who return from a high-risk area to remain at home.
Whether they are entitled to SSP or full pay will depend upon whether they fall within the guidance from the relevant public health authority on self-isolation. SSP is only payable under the deemed incapacity provisions for self-isolation where the employee is following public health advice from Public Health England, NHS National Service Scotland or Public Health Wales.
It is currently unclear whether those returning from high-risk areas are being advised to self-isolate.
If the current advice is to self-isolate upon return from the country in question, then the employee could be treated as sick and paid SSP (subject to contractual sick pay). If the current advice on self-isolation does not cover return from the country in question then it is likely that the employer could require the employee to remain at home, but they would remain entitled to full pay.
Government Guidance
The COVID-19 pandemic is continually changing and the government advice for employers is being updated as the situation develops. Employers should keep track of the guidance for employers from the following sources:
Health Protection Scotland: COVID-19: Information and Guidance for Non-Healthcare Settings (applicable in Scotland).
Advice on Settlement Agreements
Employment Tribunal Representation
Covid-19 Employment Claims
