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Coronavirus: Responsibilities & Employment Rights

1st April, 2020


With the number of coronavirus cases rising in Europe, it places greater importance on employers to take a prudent and cautious approach to limit the spread of infection. We are facing an unprecedented situation.  In our experience good leadership and a clear communication strategy are vitally important at this time and as the virus continues to spread. Employers should ensure any measures undertaken are reasonable and proportionate to the size, nature and resources of the business and that they continually follow and implement Government advice.

Please use the list below to jump to the appropriate section of this article. Updated sections are marked in bold.

Q1. What is the current Government advice?
Q2. Who can attend the workplace at present?
Q3. What is the Coronavirus Retention Scheme otherwise known as “Furlough Leave”?
Q4. What is the advice for employers?
Q5. What advice should be given to employees?
Q6. What evidence, if any, does an employee need to provide if they are off-sick or self-isolating?
Q7. What can employers do to help maintain social distancing?
Q8. Are employees entitled to sick pay?
Q9. What if the Government orders businesses to close, will employees be entitled to full pay?
Q10. What if an employee’s child is sick?
Q11. What should employers do about employees impacted by school closures?
Q12. What if an employer “suspends” an employee?
Q13. What if an employee refuses to attend the workplace?
Q14. Can we request staff to take their holidays on particular dates?
Q15. What practical steps should an employer take?
Q16. If the situation worsens, can we make lay offs or short-time working arrangements?
Q17. What if an employer is struggling to pay tax?
Q18. What if an employer is struggling with cash flow issues?
Q19. What support can businesses in the hospitality, retail and leisure sectors expect?
Q20. One of my employees is pregnant; do we need to take extra precaution?
Q21. Do we need to consider adjustments for vulnerable employees?
Q22. Should we place restrictions on our staff in terms of work-related international travel?
Q23. What if an employee does not wish to come to work because a family member is part of a vulnerable group?
Q24. Can an employer cancel an employee’s holiday?
Download – Coronavirus Advice Sheet

 

Q1. What is the current Government advice?

The PM announced 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.
  • 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:

https://www.gov.uk/government/publications/further-businesses-and-premises-to-close/further-businesses-and-premises-to-close-guidance

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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 above 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 today?” 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

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Q3. 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 an FAQ provided by a backbench MP and so cannot be taken as definitive, 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 firms re-employ staff made redundant after 1 March 2020, they are eligible 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.

The latest information suggests that the grant pays for gross salary (as employees will still have tax and national insurance deducted from income), paying the lower of 80% of regular salary or £2,500 per month. Where employees or workers are not on fixed hours or their pay depends on their hours, their 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 they have worked for less time than this, including a part month calculation if they were taken on in February).

The grant additionally covers employers’ national insurance contributions and the statutory minimum employers’ pension contribution, on top of the gross salary. However, the Scheme will not pay any additional employers’ pension contributions, or any other contractual benefits.

Employers can choose whether they wish to top up the grant amount to full pay, 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, so in most cases employers cannot safely make the unilateral decision to put an employee on Furlough Leave and will need to seek agreement from the employee. Where the alternative is redundancy or unpaid lay off, it is anticipated most employees will accept.

If you would like further information and support regarding Furlough Leave then please contact our employment department, who can provide bespoke advice and documents, including a Furlough Agreement. Also, take a look at our detailed article on the Retention Scheme at: https://www.aaronandpartners.com/coronavirus-job-retention-scheme-furlough-agreement/.

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Q4. What is the advice for employers?

Employers should reschedule or postpone client events, encourage home working where appropriate and consider using online conferencing tools to hold meetings.  Where home working is not possible, consideration should be given to whether employees’ presence at work can be staggered to reduce the number of employees present at any one time.

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Q5. What advice should be given to employees?

Advice based on the position as of 3 April 2020 at 5pm.

Individuals are advised to self-quarantine for 7 days if they develop flu-like symptoms being a high temperature or a new continuous cough, however mild.

Individuals are advised to self-quarantine for 14 days if they:

  • have been in contact with someone known to have the virus;
  • live with relatives or flatmates who are displaying the flu-like symptoms stated above.

If employees needs to self quarantine they must advise HR and their team leader as soon as possible.

It appears that the Government has removed the requirement to self-quarantine if an individual returns from a high risk country unless they are presenting coronavirus symptoms. It would still be prudent to ask employees to self quarantine to avoid passing the virus onto colleagues.

Employees should notify the NHS by calling the 111 telephone helpline if their condition gets worse, the symptoms do not get better after seven days or they feel they cannot cope with the symptoms at home. It is important to note that individuals should not visit their GP if they suspect they have the virus as it increases the risk of spreading the infection. For more information please visit the UK.Gov website: https://www.nhs.uk/conditions/coronavirus-covid-19/

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Q6. What evidence, if any, does an employee need to provide if they are off-sick or self-isolating?

For the first seven days off work an employee can self-certify so they do not need to provide any evidence to their employer (unless stated otherwise). However, after seven days an employer may request evidence of their sickness absence, where either they are off sick or they are self isolating because someone in their house is unwell. The Government has launched “isolation notes” which can be used as evidence to show sickness absence and to show an individual cannot work in light of the Government advice to self isolate.

These notes can be accessed through the NHS website.

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Q7.What can employers do to help maintain social distancing?

You may have seen photos emerging over the past few days of crowds of people packed on the tubes, beaches and national parks. The Government has now made it very clear people are not taking the strong advice to maintain “social distancing” seriously enough.  Whilst employers cannot control what individuals do in their personal time, employers can take steps to help implement social distancing in the workplace and in commutes to and from the workplace. Here are some tips employers may wish to consider to ensure social distancing is adhered to in the workplace:

  • Employers could temporarily change staff working patterns to avoid large numbers of employees in the workplace and stagger over the day. For example, staff could be placed on a work rota and attend work at different times or on different days.
  • If employees need to use public transport to travel to work, you could ask staff to start and finish work later in order to miss the rush hour commute, offer parking spaces so they don’t need to use public transport or work from home. With fewer people around, it will be easier to maintain social distancing.
  • Spacing people apart in the office is a simple, effective way to ensure people are not too close together.
  • Government has strongly advised employees to work from home wherever possible. If not already done so, employers should facilitate home working, wherever possible.
  • There is an array of technology which can be used as a substitute for face-to-face meetings. Employers should consider using video conferencing or phone conferencing tools where appropriate.”

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Q8. Are employees entitled to sick pay?

If an employee is unwell having been infected with the virus or if they develop any flu-like  symptoms then they  are entitled to either statutory sick pay or company sick pay subject to terms of their contract of employment. This is the same if the employee is required to self isolate for one of the reasons set out above.

Please note the emergency legislation in place has meant that employers need to pay statutory sick pay from the first day an employee is off sick instead of the fourth day under the current rules. The Chancellor has provided financial relief for small businesses (being businesses with fewer than 250 employees) through the announcement that the cost of providing 14 days of statutory sick pay per employee will be refunded by the Government. Please see the following link for more information: https://www.gov.uk/government/publications/support-for-those-affected-by-covid-19/support-for-those-affected-by-covid-19

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Q9. What if the Government orders businesses to close, will employees be entitled to full pay?

If the Government orders businesses to be closed then providing the employee is not sick they will be entitled to full pay as normal. However, it is likely that employers will want to take advantage of the Coronavirus Job Retention Scheme, which is designed to allow employers to put their employees on temporary furlough and will reimburse employers for part of the employment costs (please see Q3 for more information).

Businesses may be entitled to financial support from the Government if they are experiencing cash flow issues (please see Q16, Q17 and Q18 for more information). In certain circumstances, employers may consider laying off staff to save costs and meet the business’ needs (please see Q15 for more information) or alternative options, such as reduction in hours or unpaid leave, may be considered but we would recommend taking legal advice on the processes to follow before implementing any such changes.

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Q10. What if an employee’s 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.

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Q11. What should employers do about employees impacted by school closures?

Schools across the UK are closed until further notice in order to delay the rate of transmission across the country. Whilst the PM did not state how long school closures will last for he stressed the Government will try to keep closures to an absolute minimum.

Employers are advised to take a flexible and pragmatic approach to support employees balancing work and childcare. Employers can achieve this by encouraging the following (wherever possible in achieving clients needs):

  • Employees to work outside normal hours. For instance, if staff cannot work during the day because their children are too young to be unsupervised and there is not another parent to help, can they work some of their time outside normal working hours, i.e. in the evenings or over the weekends.
  • Employees can agree to work shorter hours to meet childcare needs (Please see Q16 for more information).

Importantly, an employer should communicate to their staff that whilst they are happy for them to take a pragmatic approach, the overriding principle is that deadlines are met and work is completed in appropriate timescales to meet the business or client needs (if applicable).

If an employee is unable to effectively work from home, either because the nature of the role is such that it cannot be performed at home or they do not have alternative carers at any time of the day to enable them to work outside normal hours, then they can request to take unpaid dependent’s leave or parental leave under the “time off for dependents” provision.  Equally, an employee can request paid holiday leave as normal.

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Q12. What if an employer “suspends” an employee?

If an employer requires an employee to remain away from work following travel from an affected country then they are entitled to full pay for the entire duration of leave, this is subject to a contractual clause in the contract which states otherwise. Employers should be encouraged to act reasonably and be supportive in this current climate. Back to top

Q13. What if an employee refuses to attend the workplace?

If an employee does not wish to attend work due to fears of the coronavirus then their employer should listen to their concerns. ACAS guidance states an employer must try and resolve genuine concerns, with a view to protecting the health and safety of staff. Whilst an employee may wish to arrange unpaid leave or holiday leave, an employer has discretion to agree any holiday dates subject to any contractual or policy terms. If an employee refuses to attend work and their employer does not agree to time off then it may lead to disciplinary action.

However,  due regard should be given if an employee has a compromised immune system, if they are pregnant or over 70 as they will be particularly vulnerable to infection. In these circumstances extra precautions should be taken.

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Q14. Can we request staff to take their holidays on particular dates?

Some contracts do allow employers to require their employees to take holiday at a specified time, although usually the employer is required to provide notice.  If there is no contractual right to do so, then this would best be achieved by agreement with the employee. However under The Working Time Regulations an employer has a legal right to order an employee to take statutory holiday (being the 28 days holiday leave employers are required by law to give full time employees) on specified dates providing they give sufficient notice. As a minimum, the length of notice should be twice the period of leave that they are requesting. In other words, if you wish for a current employee to take two weeks off for Easter you should give four weeks notice in advance from the start date.

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Q15. What practical steps should an employer take?

  • Listen to employees’ concerns about the virus.
  • Keep the workforce updated on any measures undertaken.
  • Have an emergency planning procedure in place and ensure you have all employees’ up to date contact details.
  • Ensure managers are aware of the symptoms associated with the virus.
  • Ensure hand-sanitisers and hand washing facilities are available throughout the business and promote good hygiene rules, although this should already be in place.
  • Monitor guidance from the NHS and Foreign office.
  • If possible, accommodate for home working.

Remember, employers have a general duty of care for the health and safety of their employees so should take practical steps to minimise any risk of infection.

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Q16. If the situation worsens, can we make lay offs or short-time working arrangements?

An employee will be entitled to full pay if their workplace closes. An employer could consider laying off staff, where an employer does not provide work for a temporary period and an employee is not paid for the duration, in limited circumstances:

  • where an employee agrees;
  • if there is a contractual right or workers agreement in place; or
  • if it is an established custom and practice in a particular industry.

It is strongly recommended that legal advice is sought before any lay offs are undertaken to avoid any potential claims. Alternatives to lay off may be preferable, such as consulting with staff to agree shorter hours of work or use of the Government’s Coronavirus Job Retention Scheme (please see Q3 for more information).

Short time working arrangements is where an employer provides employees less work, and subsequently less pay, for a period while retaining them as employees. This could be useful if there has been a downturn in customers, clients or a supplier meaning the business does not need all staff to work their contracted hours. Similar to lay offs, an employer must have a contractual right otherwise an employer could be in fundamental breach of contract if they do not properly consult with staff.

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Q17. What if an employer is struggling to pay tax?

HMRC is offering assistance for businesses and self employed people who are experiencing financial stress through their “Time To Pay” service which allows businesses to defer payments of tax on a case by case basis. Your accounts team might wish to get in touch to seek agreement in respect of deferral of tax by calling HMRC’s  tax helpline on 0800 0159 559.

More information can be found at: https://www.gov.uk/government/news/tax-helpline-to-support-businesses-affected-by-coronavirus-covid-19

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Q18. What if an employer is struggling with cash flow issues?

The Chancellor of the Exchequer, Rishi Sunak, has promised an “unprecedented” financial package to support both large and small businesses through the creation of Government backed loans. Rishi Sunak stated that these loans will enable cash strapped businesses to pay rent, salaries, suppliers or purchase stock on attractive lending terms. This support will be delivered through the following schemes:

  • a new lending facility with the Governor of the Bank of England to provide low cost, easily accessible commercial paper aimed at supporting larger companies;
  • a new temporary Coronavirus Business Interruption Loan scheme for small to medium businesses to access bank lending and overdrafts. Loans will be provided up to 5 million pounds with no interest due for the first six months. The Government has stated that the purpose of this scheme is to provide lenders with a guarantee of 80% on each loan to give lenders further confidence in continuing to provide finance to SMEs;
  • Coronavirus Retention Scheme otherwise known as Furlough Leave (please see Q3 for more information); and
  • the Government’s cash grant will increase from £3,000 to £10,000 to provide additional support for smaller businesses.

The above measures will provide relief to businesses who need to respond to cash flow pressures by seeking additional finance. This is helped by yesterdays announced that VAT payments will be deferred until the end of June.

Further, the implementation today of the “Coronavirus Act 2020” will empower the Chancellor to provide further financial support should he deem it to be necessary. We can expect to see more economic measures in the future.

For more information please visit: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/covid-19-support-for-businesses#support-for-businesses-through-the-coronavirus-job-retention-scheme

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Q19. What support can businesses in the hospitality, retail and leisure sectors expect?

Following the Government’s advice to avoid public gatherings, and the closure of most non-essential businesses in the hospitality, retail and leisure sectors, these industries are likely to be hit the hardest by this situation. The Government has introduced the following support for businesses in these industries:

  • businesses with a rateable value of less than £51,000 will not have to pay any business rates in 2020;
  • an additional cash grant of up to £25,000 per business could be awarded; and
  • there will be an extension of the business rates holiday to all business in these sectors, irrespective of their rateable value.

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Q20. One of my employees is pregnant; do we need to take extra precaution?

Pregnant women have extra protections afforded to them by the Equality Act 2010. Consequently, it is important for employers to take extra precautions and be flexible with pregnant employees to be in line with legislation.

Government has advised pregnant women to stay at home as an extra precaution. The UK Government’s chief medical adviser, Prof Chris Whitty, said that whist there is little evidence to suggest that the coronavirus can lead to complications in pregnancy, as with many infectious diseases there is a “small but appreciable additional risk.”

In light of the Government’s advice, employers should take reasonable steps to mitigate any risk such as encouraging pregnant employees to work from home or offer suitable alternative work. If an employer cannot do so, the UK.Gov Website recommends employers to suspend the employee on full pay.

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Q21. Do we need to consider adjustments for vulnerable employees?

Employers may need to consider adjustments for employees who are most at risk if they contract the virus, particularly if they qualify as disabled under the Equality Act 2010.

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Q22. Should we place restrictions on our staff in terms of work-related international travel?

Dominc Raab, the Secretary of State for Foreign and Commonwealth Affairs, has advised British nationals to avoid all but essential travel for 30 days. He continued to state that if a British national still wishes to travel they should be aware of the increased risk of them not being able to get back home and the Foreign & Commonwealth Office has advised British people travelling abroad to return home now if flights are available.  In light of Dominc Raab’s comments, businesses would be well advised to stop all non-essential work travel to comply with the Government advice and help limit the spread of infection. Any measures in place should be communicated to all staff.

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Q23. What if an employee does not wish to come to work because a family member is part of a vulnerable group?

As previously mentioned, this situation is unprecedented and each employer will have a slightly different approach based on the Government guidance. Employers are encouraged to listen to their employees and encourage them to work from home. If an employee cannot work from home then, upon the discretion of the employer, they can request holiday leave or unpaid time off.

Employers should tread carefully if an employee is looking after dependents classified as disabled under the Equality Act as they could be liable for a discrimination claim. In addition, there could be a breach of mutual trust and confidence if an employer ‘forces’ an employee to come to work and they end up passing the virus onto vulnerable dependents.

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Q24. Can an employer cancel an employee’s holiday?

Employers are entitled to require employees not to take statutory annual leave on particular dates under the Working Time Regulations 1988 provided they give sufficient notice (see Q13 for more information). However, this can be very risky to do so if an employer has already consented; an employee may be out of pocket and expect their employer to reimburse them. 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. It is recommended to check any contractual provisions on annual leave in place and consider the business’ holiday policy.

The Government has now amended the Working Time Regulations 1998 to allow employees and workers who have been unable to take holiday due to COVID-19 to carry over 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 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).

The Government’s position on the interaction between annual leave and furlough remains unclear.

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Disclaimer: The above information is correct as of 3 April 2020 but please note the advice is continually being updated. For more information please see the UK GOV website.

An increasing number of clients are contacting Aaron & Partners’ employment law team with issues relating to COVID-19. If you are experiencing difficulties, we have the expertise to assist you in dealing with these concerns.

Coronavirus Advice Sheet

We have produced a handy quick reference guide on pay for HR professionals as a pdf (Download it here).

For further advice please contact Helen Watson or Debbie Coyne or contact us via the form below.

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