14th April, 2020
Coronavirus – Employee FAQ
This is naturally a time of great upheaval and confusion. People are understandably particularly anxious about their jobs and income and have many questions. Measures have been put in place to try and support both employers and employees but at the moment, there is not much detail on how these schemes are going to work.
Employment lawyers like myself are grappling with the issues and advising employers and employees alike to try to bring as much clarity as we reasonably can, in the circumstances.
Q1. What is the current Government advice?
The PM announced there will be a lockdown across the UK in an effort to reduce the rate of infection. In his speech, Boris Johnson stated the coronavirus is the biggest threat the UK has faced in decades therefore people must adhere to Government guidance. The PM added that the police will have the power to enforce these new rules through dispersing gatherings and issuing fines.
The clear message is that everyone must stay at home and only go out for the following reasons:
- If shopping for essential items such as food shopping.
- For your one form of exercise per day.
- If there is a medical need or if you are caring for a vulnerable person.
- If you are travelling to/from work- where this is absolutely necessary and you cannot work from home.
The following restrictions will also be imposed:
- You must not meet up with friends or family members you do not live with.
- Shops which sell non-essential goods will close immediately.
- No gatherings of more than 2 people in public, apart from those you live with.
- The closure of libraries, outdoor gyms and places of worship.
- There will be no social gatherings including weddings but funerals can still take place.
Please see the following link for more information:
Q2. Who can attend the workplace at present?
The PM sent out a clear message that everyone must remain indoors and only go outside the home for a few specific reasons (please see Q1 for the Government’s current advice). One of the reasons stated is if you are travelling to and from work but only if “absolutely necessary”. There has been debate as to what work constitutes as “absolutely necessary” however the latest advice suggests you can go to work if:
- your work cannot be done from home;
- you observe social distancing;
- you are not classed as vulnerable under Government guidance (being over 70, pregnant or with an underlying health condition); and
- your employer has not been forced to shut (such as pubs, bars, clubs and non-essential retail shops).
For more detailed guidance please visit our article titled “So who can actually go to work?” here and information from the Government website: https://www.gov.uk/government/publications/full-guidance-on-staying-at-home-and-away-from-others/full-guidance-on-staying-at-home-and-away-from-others#going-to-work
Q3. What are my rights if I work for a non-essential business that refuses to close?
At the present time, the government have only insisted that certain types of business close its doors to the public. These include non-essential retail, pubs, clubs, libraries and other businesses where people gather. Beyond this, there is no requirement for ‘non-essential’ businesses to close. Even these prohibited businesses may still require back room staff to work.
Furthermore, although on Monday 23 March 2020, the UK was put into ‘lockdown’ individuals are still allowed to travel to their workplace where working from home is not possible.
As an employee of a business that is asking you to continue to work, an employee does not usually have any particular right to refuse under your contract of employment. If you have any specific concerns we would suggest you first raise them with your employer’s HR team or your manager.
Q4. What are my rights if my boss has threatened to fire me if I don’t turn up for work?
Your boss has the right to insist you attend work if the business is continuing to operate, unless it is one of the types of business specifically ordered by the government to close. If you refuse to do so, you would potentially be in breach of your contract of employment. This can lead to disciplinary action being taken, which can include potential dismissal for misconduct.
However, you may have a legitimate concern about attending work. Your employer has a duty to protect your health and safety. If they are not instituting social distancing measures or are not considering adjusting working hours to allow you to avoid peak travel hours, for example, you may have a valid reason for raising an objection. If this is the case, we would advise you explain your reasons to HR or your manager first to see if it can be resolved.
In any event, there are procedures that should be followed before an employer dismisses someone for failing to attend work and employers should be cautious about threatening immediate dismissal without following these procedures. If an employee has two years’ service with the company, they are eligible to make a claim in the Employment Tribunal for unfair dismissal, which may include if a fair process was not conducted by the employer.
Q5. What is the Coronavirus Retention Scheme otherwise known as “Furlough Leave”?
The Coronavirus Job Retention Scheme is eligible to all businesses. UK employers are able to access a grant to cover 80% of retained employee’s Wage Costs up to a maximum of £2,500 a month.
The Government and HMRC are working to put the scheme into place and details remain sparse in the meantime. The latest information comes from government guidance which has not been put into law yet, but does provide some insight into how the scheme is likely to work.
The scheme can apply to any employee or worker who is paid by PAYE, including those on zero hours contracts. It is understood that the wage subsidy will apply to retained employees as well as those laid off or made redundant provided they are brought back into the workforce. If you were dismissed after 1 March 2020, it may be possible to ask your employer to re-employ you to then be furloughed and the employer would qualify for the grant, backdated to the date of termination. The aim of this scheme is to stop workers being laid off or made redundant due to the crisis.
Employees on Furlough Leave are not permitted to work. We understand that an employee must be furloughed for a minimum period of 3 weeks for the employer to be eligible to claim under this scheme.
On Furlough Leave, you should receive at least 80% of your normal salary up to a maximum of £2,500 per month. If you are not on fixed hours or your pay depends on the hours you work, your monthly pay may vary. It is understood that 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 you have worked for less time than this, including a part month calculation if you were taken on in February).
The grant additionally covers employers’ national insurance contributions and the statutory minimum employers’ pension contribution and so your employer should continue to pay these.
Employers can choose whether they wish to top up the grant amount to full pay (but there is no obligation to do this), but in order to qualify for the scheme, they must pay their staff at least 80% of wages, up to the cap of £2,500 per month.
Existing employment law still applies. Unless you already have a layoff clause in your contract of employment, your employer will need to seek your agreement to put you on Furlough Leave. Where the alternative is redundancy or unpaid lay off, though, it seems likely that most employees will accept.
Q6. I have holidays booked during the Furlough period, do I still take these holidays?
The position from the government on this point is unclear at the moment. As it stands we believe any employee who is Furloughed is unable to take holidays during the first 3 weeks. Any holidays pre-booked during that time will likely be cancelled by your employer and reaccredited.
Employers are entitled to require employees not to take statutory annual leave on particular dates under the Working Time Regulations 1998 provided they give notice that is twice as long as the requested leave (so if you’re asking for one week’s leave, they must give you two weeks’ notice to refuse). However, if you have already booked a holiday you may be out of pocket and expect your employer to reimburse you. Further, an employer who unreasonably cancels or disrupts holiday plans may well find that they are in breach of the implied term of mutual trust and confidence.
After 3 weeks, we anticipate most employers will allow employees to book holidays. However, it is unclear whether holiday pay only be 80% of salary in line with the Furlough scheme.
Q7. Will I continue to accrue holidays during Furlough leave?
Our current interpretation of Furlough leave is that holidays will be accrued as normal. However, if the government clarifies the position to the contrary then we will up date this note accordingly.
Q8. What if I can’t use all my annual leave this year?
The government are amending the law relating to annual leave entitlement, so that employees and workers who are prevented from taking their annual leave during this annual leave year (which will be defined in your contract of employment) due to coronavirus, they will be entitled to carry over the first 4 weeks of the annual leave year (which derives from EU law) and use it in the next 2 years.
The change is primarily aimed at ensuring employers affected by COVID-19 have the flexibility to allow workers to carry over leave at a time when granting annual leave could leave them short-staffed in key industries, such as food and healthcare. However, it appears it may also apply to staff who have been put on Furlough Leave and therefore have been unable to take their leave. The test to apply is whether it was not ‘reasonably practicable’ for an employee to take some or all of the leave to which the worker was entitled as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society).
Q9. Am I still entitled to furlough payments if I quit?
If you have quit and left employment then you are entitled to no further payments.
If you have only recently resigned and your resignation has not yet been accepted by your employer, then you can withdraw your resignation. Depending on the circumstances, your employer may then decide to put you on furlough, but on the other hand they may expect you to continue working either in the workplace or working from home.
Q10. Can I still be furloughed if I am self-isolating?
The existing law relating to sick pay has been changed so that employees will be paid at least Statutory Sick Pay if they are either displaying symptoms of coronavirus or, crucially, if they are self-isolating in line with current government/Public Health England guidance. It is reasonable to conclude that someone who is self-isolating is essentially ‘off sick’.
If someone is off sick, they continue to be employed but are not working. It appears someone cannot be off sick and on furlough at the same time, in accordance with the scheme. It is therefore unlikely that employers will furlough someone who is already off sick in case they are not reimbursed from HMRC. Given this now seems to include those self-isolating, it seems likely that you can’t be furloughed if you are self-isolating. However, once the relevant isolation period has finished your employer may then wish to put you on a furlough, if the relevant circumstances arise.
Q11. What will I get paid if I am self isolating but can’t work from home?
Those self-isolating will be paid Statutory Sick Pay (‘SSP’) from day 1 of the self-isolation, as long as the reason for isolation is in line with government and Public Health England guidance.
Some employment contracts allow for contractual sick pay, over and above SSP, often providing full pay. Usually, an employee can self-certify sickness absence and so no medical ‘Fit Note’ is required for the first 7 days. This still applies, but if you are self-isolating for longer than a week (current guidance is to self-isolate for 14 days if a member of your household displays coronavirus symptoms) then your employer would usually expect medical evidence for your absence. You can now obtain a ‘self-isolation’ note from the NHS111 website as evidence (https://111.nhs.uk/isolation-note/). Advice is not to go to a doctor or hospital unless your symptoms are severe and you are having trouble breathing, so these online notes are simplifying the process.
Q12. What if my child is sick?
If an employee’s child is sick with symptoms unrelated to coronavirus, they can request to take unpaid dependent’s or parental leave as the situation would fall under the “time off for dependents”, a provision already in existence, and should be dealt with in line with the business’ normal procedures. They may also request to take holiday leave.
If an employee needs to self isolate because a family member they live with is presenting symptoms of coronavirus then provided they can work from home and do not feel unwell, an employer can request them to work from home and they would be entitled to their normal pay. If they are unable to work from home and they are displaying some symptoms or are themselves required to self isolate, then they would be entitled to sick pay.
It is possible that further emergency legislation will be announced that could make changes in this area, so we would recommend checking the government updates daily.
Q13. I am an employee who earns most of my salary by way of commission. I understand that if I am furloughed the government will cover 80% of my salary (up to £2500 per month) during my furlough leave. However, will this include the commission which I normally earn, or just my basic salary?
It all depends whether the commission payments are compulsory and regular. Your employer can claim for any regular payments that they are obliged to pay you. Moreover, HMRC has confirmed that compulsory commission can be included for furloughed employees’ wages. So if commission has been paid to you on a regular basis, and you have a contractual right to the payment, then it should be included. The amount of commission you are entitled to should be worked out in a similar way to your holiday leave pay.
Disclaimer: The above information is correct as of 3 April 2020 but please note guidance is continually being updated. For more information please see the UK GOV website.
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