On 13 November 2020, HM Treasury published its fourth Treasury Direction, which together with the previous Treasury Directions, form the legal framework for the CJRS (furlough scheme). We have updated our COVID-19 Guidance for Employers and provide a useful summary of the key differences.
We have updated our COVID-19 Guidance for Employers and provide a useful summary of the key differences between the pre-and-post extension that Employers should be aware of here: Coronavirus Support & Information.
Failing to ensure any previously issued furlough agreements meet the extended CJRS grant eligibility conditions could result in failed grant claims.
Here’s how to avoid making that simple mistake:
To be eligible for the grant, employers must have confirmed to their employee (or reached collective agreement with a trade union) in writing that they have been furloughed or flexibly furloughed.
Employers must:
make sure that the agreement is consistent with employment, equality and discrimination laws.
keep a written record of the agreement for 5 years.
keep records of how many hours their employees work and the number of hours they are furloughed (for example, not working), for 6 years.
The employee does not have to provide a written response and employers do not need to place all their employees on furlough.
The terms of any agreement must:
reflect the hours the employee has actually worked or not worked over the period of the agreement.
allow the employer to satisfy the terms of CJRS so they can make a claim in relation to hours not worked.
To ensure your staff remain eligible for the extended furlough scheme grant funding, you must ensure any previously issued furlough agreements meet the aforementioned conditions. Provided they do so, any flexible furlough or furlough agreement made retrospectively that has effect from 1 November 2020 will be valid for the purposes of a CJRS claim as long as it is made according to the conditions above. Only retrospective agreements put in place up to and including the 13 November 2020 may be relied on for the purposes of a CJRS claim.
If you’re not sure if your previously issued flexible furlough agreements meet the necessary criteria please contact us and we will review any previously issued agreements for you and provide further guidance to you thereafter.
Full guidance is due to be published next week, on 10 November 2020 and claims can be made from 11 November 2020.
On 5 November 2020, the Chancellor Rishi Sunak announced that the Coronavirus Job Retention Scheme (CJRS) will be extended until 31 March 2021 and it is more generous than the scheme running in September and October.
Until at least January 2021, Employers will be able to claim 80% of employees’ wages, capped at £2,500 for hours not worked. Employers must pay the national insurance and employer pension contributions on employees’ furlough pay. The percentage may be reviewed for February and March.
Full guidance is due to be published next week, on 10 November 2020 and claims can be made from 11 November 2020.
The Chancellor confirmed that the CJRS applies to the whole of the UK equally.
Employers do not need to have used the CJRS previously and can claim whether their business is open or closed.
Employees can be fully or flexibly furloughed.
Employees must have been on the employer’s payroll on 30 October 2020, but do not need to have been furloughed previously.
Employees who were made redundant or stopped working for their employer after 23 September 2020 can be re-employed and claimed for under the scheme.
Employers will be able to claim for the period from 1 November from 8.00 am on 11 November 2020.
Employees who have previously been furloughed continue to have their reference pay and hours based on the existing furlough calculations (as under the old scheme).
Employees who have not previously been furloughed will have a different pay/hours reference period. Full guidance will be provided on 10 November, but broadly the pay is based on 80% of the wages payable in the last pay period ending on or before 30 October 2020 (for those on fixed wages), or 80% of the average payable between the start date of their employment or 6 April 2020 (whichever is later) and the day before their CJRS extension furlough periods begins (for those on variable wages).
Employees can be furloughed if they are shielding in line with public health guidance (or need to stay at home with someone who is shielding). That does not, of course, mean they have to be furloughed.
Eligibility for Extended Furlough Scheme
To be eligible for the grant, employers must have confirmed in writing to their employee (or reached collective agreement with a trade union) that they have been furloughed. The employee does not have to provide a written response. Also:
“Where consistent with employment law, any flexible furlough or furlough agreement made retrospectively that has effect from 1 November 2020 will be valid for the purposes of a CJRS claim as long as it is made according to the conditions above. Only retrospective agreements put in place up to and including the 13 November 2020 may be relied on for the purposes of a CJRS claim.”
What About the Job Support & Job Retention Schemes?
It was also confirmed that the Job Support Scheme has been “postponed”. It is not known whether it will be introduced after the CJRS ends.
The Job Retention Bonus has been deferred and a new retention incentive scheme will be deployed at a later date. A third grant for the self-employed will be available covering November to January of 80% of average trading profits up to a maximum of £7,500.
The UK Government will review the policy in January to decide whether economic circumstances are improving enough to ask employers to contribute more.
Support for Employers
The COVID-19 lockdown restrictions and extension to the furlough scheme continue to present numerous and complex challenges for Employers.
If you are an Employer and require advice and support on any employment matters, COVID related or otherwise, call us now on 0800 612 4772 or Contact us via our website and we will set assist you to navigate through the employment law minefield created by the COVID-19 crisis and comply with your legal obligations.
In light of the PM’s announcement on 30 October 2020, in which he confirmed the Coronavirus Job Retention Scheme (Furlough Scheme / CJRS) will be extended to 2 December 2020, the new Job Support Scheme (JSS) will now not start until the extended Furlough Scheme ends.
The extension of the Furlough Scheme may create some confusion and concern for Employers who have already formally ended furlough and have implemented a formal short time working arrangement with employees. For guidance on this point, Employers can look to the third Treasury direction, in which the Treasury confirmed the requirement to reach agreement on flexible furlough arrangements needs to be confirmed in writing by employers (which may be in electronic form such as an email).
A literal interpretation of the Treasury direction would suggest that any formal agreement reached on short time working would mean employees returning to work under these arrangements would be eligible for the extended CJRS as being flexibly furloughed, but at the date of writing this we are still awaiting further guidance from the Treasury to determine what steps, if any, Employers will need to take with those employees they have entered into short time working arrangements with.
What the Treasury has confirmed so far is that the CJRS has been extended until December and will operate as the previous scheme did and the level of the grant will mirror levels available under the CJRS in August; so the government will pay 80% of wages up to a cap of £2,500 and employers will pay employer National Insurance Contributions (NICs) and pension contributions only for the hours the employee does not work and that flexible furloughing will be allowed in addition to full time furloughing.
In addition, the Treasury has set out revised eligibility criteria and details of the support being provided:
Employers
All employers with a UK bank account and UK PAYE schemes can claim the grant. Neither the employer nor the employee needs to have previously used the CJRS.
The government expects that publicly funded organisations will not use the scheme, as has already been the case for CJRS, but partially publicly funded organisations may be eligible where their private revenues have been disrupted. All other eligibility requirements apply to these employers.
Employees
To be eligible to be claimed for under this extension, employees must be on an employer’s PAYE payroll by 23:59 30th October 2020. This means a Real Time Information (RTI) submission notifying payment for that employee to HMRC must have been made on or before 30th October 2020.
*As under the current CJRS rules:
Employees can be on any type of contract. Employers will be able to agree any working arrangements with employees.
Employers can claim the grant for the hours their employees are not working, calculated by reference to their usual hours worked in a claim period. Such calculations will broadly follow the same methodology as currently under the CJRS.
When claiming the CJRS grant for furloughed hours, employers will need to report and claim for a minimum period of 7 consecutive calendar days.
Employers will need to report hours worked and the usual hours an employee would be expected to work in a claim period.
For worked hours, employees will be paid by their employer subject to their employment contract and employers will be responsible for paying the tax and NICs due on those amounts.
What support is being provided and employer costs:
For hours not worked by the employee, the government will pay 80% of wages up to a cap of £2,500. The grant must be paid to the employee in full.
Employers will pay employer NICs and pension contributions and should continue to pay the employee for hours worked in the normal way.
As with the current CJRS, employers are still able to choose to top up employee wages above the scheme grant at their own expense if they wish.
The Government will confirm shortly when claims can first be made in respect of employee wage costs during November, but there will be no gap in eligibility for support between the previously announced end-date of CJRS and this extension.
Last week the Government warned against non essential travel to Spain and imposed a 14 day quarantine period on holiday makers returning to the UK. Yesterday Belgium, the Bahamas and Andorra were also added to the list. For many people this has meant cutting their existing holiday short or cancelling their holiday altogether.
Some of those returning home are now faced with the dilemma of telling their employer that they cannot return to work for the next two weeks. So, what happens to employees who find themselves in this situation?
Those who are fortunate enough to have jobs which allow them to work from home should be able to do so. It is still the case that staff should be allowed to work from if they are able to do so.
What is important is that employees returning from any of these countries do not attend their workplace. They face a criminal fine if they break the quarantine rule. It is important that employers do not force, or unduly pressure staff to break quarantine and return to work. Any employer who does that will be asking their employee to commit a criminal offence and also putting other staff, and customers of the business, at risk
What Are The Options?
Where employees are not in a job that allows home working, the employer has a number of options open to them.
The employer can choose to allow the employee simply to extend their period of annual leave by an addition 14 days. In reality this can only work if the employee has enough annual leave remaining to allow them to do that.
However, the employer has to consider the impact that this might have on their business. Allowing an employee to be away from the workforce is likely to put a strain on other members of staff and could impact on other members of staff. It might be the case that other members of staff are due to go on holiday and their leave period could be impacted by the absence of the employee who has to quarantine. In a small business granting additional leave for a quarantine period is likely to impact on the business.
An employment contract is one of performance, so if an employee cannot perform their job then strictly speaking they should not get paid. However, an employee who is forced to quarantine under Government imposed regulation should be given special consideration by the employer.
If an employee cannot be offered additional paid leave to cover the quarantine period then the employer should seriously consider allowing a period of special leave. Most contracts of employment are unlikely to set out provision on special leave. However, it is within the discretion of every employer to allow special leave.
In the unprecedented time that we find ourselves in it, all reasonable employers should consider special leave for employees who are forced to quarantine.
It is up to the employer’s discretion as to whether a period of special leave should be paid. Special leave can be paid in full, based on the employee’s normal pay, paid on part or completely unpaid. Employers can chose to treat a quarantine period as a mixture of annual leave and special leave.
While an employee who is on special unpaid leave might not be paid for the time that they have to quarantine, the important thing is that the leave is authorised by the employer.
If an employer unreasonably refuses to grant a special period of authorised leave, then they are likely to face challenge from the employee or the employee’s trade union. Given that the reason for the quarantine is Government guidance the employee cannot be expected to break the quarantine because their employer has unreasonably refused their request.
If an employer does refuse to allow authorised leave, then the employee is exposed to the risk of being disciplined for not attending work. The outcome of any disciplinary action could be dismissal. In particular, an employee who already has been disciplined due to unreasonable absence levels could be at risk of dismissal if their employer refuses to authorise their leave period. An employee in the circumstances with more than 2 years’ service would be entitled to pursue an unfair dismissal claim in the Employment Tribunal.
An employee who is refused authorised leave, whether it be in the form of extended annual leave or special leave might be entitled to resign in response to the employer’s refusal and bring a claim for constructive dismissal. An employee with two years’ service might be entitled to pursue a claim for constructive dismissal in the Employment Tribunal.
For employees who are due to travel to any of these countries, it is important that they discuss any impending travel plans with the employer before they decide to go on their holiday. It is important that the employer is given a fair opportunity to decide whether they can accommodate the quarantine period.
It might be reasonable for an employee and employer to reach agreement on whether the employee should travel. The employer cannot force the employee to cancel their holiday, however they can give withdraw the employee’s annual leave authorisation.
Any authorised holidays can be withdrawn as long as the employer gives notice of the same length of time as the holiday would have been. An employer could cancel a seven day holiday by given notice seven days before the employee’s holiday is due to start.
If an employee still insists on going on holiday after their holiday authorisation has been withdrawn then they will be treated as having an unauthorised absence. This is likely to lead to disciplinary action being taken and could lead to dismissal.
Support for Employers
If you are an employer and need advice regarding how to deal with staff who have to quarantine, call us now on 0800 612 4772 or Contact us via our website
Support for Employees
Employees have three months, minus a day, from the date of any action by the employer to lodge a claim in the Employment Tribunal. If you would like a free consultation call us now on 0800 612 4772 or Book Now via our website .
Yesterday (29 May) the Chancellor announced more details about the extension to the Coronavirus Job Retention Scheme (CJRS), the key details being as follows:
Flexible furloughing
From 1 July 2020, Employers have the flexibility to bring previously furloughed employees back to work part-time – with the government continuing to pay 80% of wages for any of their normal hours they do not work up until the end of August. This flexibility comes a month earlier than previously announced to help people get back to work.
Employers can decide the hours and shift patterns that your employees will work on their return and will be responsible for paying their wages in full while working. This means that employees can work as much or as little as your business needs, with no minimum time that Employers can furlough staff for.
Any working hours arrangement that Employees agree with their employee must cover at least one week and be confirmed to the employee in writing. When claiming the CJRS grant for furloughed hours, Employers will need to report and claim for a minimum period of a week. They can choose to make claims for longer periods such as on monthly or two weekly cycles if they prefer. Employers will be required to submit data on the usual hours an employee would be expected to work in a claim period and actual hours worked.
If your employees are unable to return to work, or you do not have work for them to do, they can remain on furlough and you can continue to claim the grant for their full hours under the existing rules.
Employer contributions
From August, the government grant provided through the job retention scheme will be slowly tapered.
in June and July, the government will pay 80% of wages up to a cap of £2,500 as well as employer National Insurance (ER NICs) and pension contributions for the hours the employee doesn’t work – employers will have to pay employees for the hours they work.
in August, the government will continue to pay 80% of wages up to a cap of £2,500 but employers will pay ER NICs and pension contributions – for the average claim, this represents 5% of the gross employment costs that they would have incurred if the employee had not been furloughed.
in September, the government will pay 70% of wages up to a cap of £2,187.50 for the hours the employee does not work – employers will pay ER NICs, pension contributions and 10% of wages to make up 80% of the total up to a cap of £2,500.
in October, the government will pay 60% of wages up to a cap of £1,875 for the hours the employee does not work – employers will pay ER NICs, pension contributions and 20% of wages to make up 80% of the total up to a cap of £2,500.
the cap on the furlough grant will be proportional to the hours not worked.
If you are a smaller employer, some or all of your employer NIC bills will be covered by the Employment Allowance, so you should not be significantly impacted by that part of the tapering of the government contribution.
Self-Employed Grant Scheme Extended
In addition, the Chancellor also announced the self-employed grant is being extended, with applications opening in August for a second and final grant. There will be parity with the reducing furlough scheme, paying 70% (not 80%) of average earnings up to £6,750/
Important dates for Employers
It’s important to note that the scheme will close to new entrants from 30 June. From this point onwards, Employers will only be able to furlough employees that they have furloughed for a full three-week period prior to 30 June.
This means that the final date that Employers can furlough an employee for the first time will be 10 June for the current three-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.
At the date of this announcement we are still awaiting updates to the Treasury Direction and the Employer’s Guidance and therefore this information provided by the Chancellor in his press conference should be taken with a degree of caution until the full details are published, but these headline points announced should enable Employers to start planning for the coming weeks and months.
Ending Furlough
With this additional clarity form the UK government and lockdown restrictions easing across the UK, many employers will want to start planning what a return to work from furlough might look like. To assist Employers, we have added a new section to our COVID-19 Furlough FAQs – RETURNING TO WORK FROM FURLOUGH and further guidance on our blog.
If you are an Employer and require advice and support on the various steps you need to take to end furlough correctly, call us now on 0800 612 4772 or Contact us via our website and we will set out a clear, step by step plan you can follow to to help ensure you comply with your legal obligations.
With lockdown measures already relaxed in England, Wales and Northern Ireland, and Scotland due to announce its plan to come out of lockdown on Thursday 21 May 2020, many Employers are starting to plan for ending furlough, but what steps do Employers need to take?
What Employers Need to Know
Before ending furlough Employers will first need to undertake a risk assessment to ascertain what changes in work practices might be necessary to comply with new health and safety requirements. Where changes to work practices are necessary to comply with health and safety requirements, Employers will need to consult with the affected employees.
Employees not in groups represented by a trade union must be provided with information and consulted under the Health and Safety (Consultation with Employees) Regulations 1996 (SI 1996/1513) (Consultation with Employees Regulations), either through elected representatives or directly.
With the furlough scheme being extended to the end of October 2020, Employers now have more time to assess their staffing requirements and determine when they may wish to end furlough and how this might look operationally. Ending furlough will look different for each employer; some will expect employees to return to their place of work when furlough ends whereas others may introduce home working initially and adopt a phased approach for employees returning to the workplace.
Whether the employer can dictate the end of furlough will depend on what has been explicitly or implicitly agreed between the parties. However, the absence of an explicit right to bring furlough to an end and require employees to return to work is unlikely to be an issue in most cases because employees are likely to be in receipt of less pay while they are furloughed and may be eager to return to work given the difficulties in securing alternative employment while the COVID-19 crisis continues.
An employer should give any required period of notice specified in the furlough agreement. If no period of notice was specified, the employer should aim to give reasonable notice, depending on the particular circumstances of both the employer and the employee.
The Acas guidance states that there is no minimum period for furlough, but employers should talk to staff about any plans to end furlough as early as possible and encourage staff to raise any concerns or problems about returning to work. Employees and workers should be ready to return to work at short notice, but employers should be flexible where possible.
Support for Employers
If you are an Employer and require advice and support on the various steps you need to take to end furlough correctly, call us now on 0800 612 4772 or Contact us via our website and we will set out a clear, step by step plan you can follow to to help ensure you comply with your legal obligations.
The Chancellor Rishi Sunak has today announced the Coronavirus Job Retention Scheme (CJRS) will be extended for four months, until the end of October 2020 but in doing so, he said he will ask companies to start sharing the cost of the scheme from August 2020.
Until the end of July, there are no changes, which will be warmly welcomed by the devolved administrations of Scotland, Wales and Northern Ireland who, unlike England, have not yet decided not to relax lockdown restrictions.
Although the scheme will continue for all sectors and regions until October, the Chancellor announced that from August to October 2020, the scheme will continue on the basis furloughed employees can be brought back part-time.
Full details will be published by the end of May.
With this additional clarity form the UK government, now is the ideal time for employers to start planning what a return from furlough might look like. To assist Employers, we have added a new section to our COVID-19 Furlough FAQs – RETURNING TO WORK FROM FURLOUGH.
Support for Employers
If you are an employer and require advice and support on any employment related matter, COVID-19 or otherwise, 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).
Data Protection is often a minefield for Employers at the best of times but what Data Protection issues could the Coronavirus outbreak create? We have collated information from a variety of reliable sources and provide it here to ensure UK Employers are aware of their legal obligations and to assist them to deal with the various implications imposed by the rapid spread of the COVID-19 (Coronavirus) outbreak.
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.
This article focuses on Data Protection Issues.
Data protection issues
Do employees have the right to be notified if colleague/customer develops the virus?
The Data Protection Act 2018 defines information about an employee’s health as a “special category of personal data”. This means that it can only be processed by the employer in defined and restricted circumstances.
Employees must be notified of the infection risk as soon as possible. However, the identity of the individual should not be disclosed. An employer should simply advise that an employee who has been in the workplace has been infected and that appropriate precautions should be taken.
The ICO has confirmed that it will take a pragmatic approach to enforcement in light of the pandemic. It has issued ICO: Data protection and coronavirus: what you need to know which confirms that employers can disclose to colleagues that an employee has contracted COVID-19 provided that they do not provide more information than is necessary and, in most cases, it will not be necessary to name the individual.
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
