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Manchester Business Park
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Manchester M22 5TG

12th May, 2020

Coronavirus: Responsibilities & Employment Rights

Coronavirus Generic

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?

On Sunday 10 May 2020, the Prime Minister, Boris Johnson addressed the nation in a briefing which confirmed the government is moving into ‘Phase 2’ of its plans to tackle the virus. The nation continues to be under a lockdown state, but with some relaxations of the rules.

The government’s intention is to put in place a flexible traffic light system so it can quickly change rules and guidance to react to new information regarding the infection rate (R) of the virus.
It should be noted that currently, any changes made apply only in England, as the devolved parliaments of Scotland, Wales and Northern Ireland have confirmed they will continue in full lockdown for the next 3 weeks.

The clear message for the whole of the UK continues to be 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.

However, in England, further restrictions are going to be modified. More detailed guidance on much of this is yet to be released and so the following remains a guideline only at the present time. From Wednesday 13 May 2020 there will be a limited number of things you can do that you cannot do now:

  • Spend time outdoors – for example, sitting and enjoying the fresh air, picnicking, or sunbathing;
  • Meet one other person from a different household outdoors – following social distancing guidelines;
  • Exercise outdoors as often as you wish – following social distancing guidelines;
  • Use outdoor sports courts or facilities such as a tennis or basketball court or golf course – with members of your household, or one other person while staying 2 metres apart; and
  • Go to a garden centre.

At all times, you should continue to observe social distancing guidelines when you are outside your home, including ensuring you are 2 metres away from anyone outside your household. As with before, you cannot:

  • Visit friends and family in their homes;
  • Exercise in an indoor sports court, gym or leisure centre, or go swimming in a public pool;
  • Use an outdoor gym or playground;
  • Visit a private or ticketed attraction; or
  • Gather in a group of more than two (excluding members of your own household), except for a few specific exceptions (for work, funerals, house moves, supporting the vulnerable, in emergencies and to fulfill legal obligations).

The government is also now advising that if you are in an enclosed space (other than your home) you consider wearing a mask or use a home-made covering for your mouth and nose.
Please see the following link for more information:

Full details of the government’s plan is available here:

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Q2. Who can attend the workplace at present?

The government has updated its message to employees. If employees can continue to work from home, then they should continue to do so. If not, employees and employers are encouraged to consider returning to work. After some clarification, it appears the government’s guidance is not trying to force any obligations onto employers or employees, but to suggest that there is a dialogue about returning to the workplace. Many businesses have been able to continue to trade during lockdown, in any event, and for many this latest guidance will mean no appreciable change, but it is clear the government is envisaging a gradual return for those who have been off on furlough, lay off or other leave.
Travel to work remains an issue and government guidance is to avoid the use of public transport where at all possible. Whatever the means of transport, travelling outside the home to work is still only recommended when absolutely necessary, when:

  • 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).

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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 and worker’s Wage Costs up to a maximum of £2,500 a month.

 Applications to the scheme are through an online HMRC portal which is now active here:

The first payments to employers have now been made and it appears the scheme is running very well.

The scheme can apply to any employee or worker who is paid by PAYE, including those on zero hours contracts, as long as they were on the payroll and a real time information submission (RTI) was made on or before 19 March 2020. The aim of this scheme is to stop workers being laid off or made redundant due to the crisis, but the latest guidance indicates that the scheme does not require employers to show that an employee would otherwise have been made redundant, only that the furloughing of the employee was connected to the COVID-19 outbreak.

If you made employees redundant, or they stopped working for you on or after 28 February 2020, you can re-employ them, put them on furlough and claim for their wages from the date on which you furloughed them through the scheme. This applies to employees that were made redundant or stopped working for you after 28 February, even if you do not re-employ them until after 19 March. This applies as long as the employee was on your payroll as at 28 February and had been notified to HMRC on an RTI submission on or before 28 February 2020.    

Government guidance provides the following useful table setting out these eligibility requirements:

Was the employee employed with you as of this date? Date RTI submission notifying payment was made to HMRC Eligible for CJRS?
28 February 2020 On or before 28 February 2020 Yes
28 February 2020 On or before 19 March 2020 Yes
28 February 2020 On or after 20 March 2020 No
19 March 2020 On or before 19 March 2020 Yes
19 March 2020 On or after 20 March 2020 No
On or after 20 March 2020 On or after 20 March 2020 No


Employees on Furlough Leave are not permitted to work. An employee must be furloughed for a minimum period of 3 weeks for the employer to be eligible to claim under this scheme, though subject to this minimum employees can be rotated on and off furlough. 

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. For salaried employees with the same pay every month, the 80% will be calculated from the last full pay reference period before 19 March 2020. Where employees or workers are not on fixed hours or their pay depends on their hours, their monthly pay may vary. In this case 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.

The scheme is being extended until the end of October 2020. No changes will take effect until after the end of July, but from the beginning of August onwards some changes will be made to the scheme to make it more flexible. Particularly, the Chancellor confirmed that furloughed employees will be allowed to work part-time, and that employers would begin to have to share the costs of furloughed wages between August and October.
Guidance is to be published by the end of May.
We will update our advice as soon as possible once announcements are made. The Chancellor, Rishi Sunak, has indicated that the intention is for the scheme to start winding down, most likely in June. This would appear to connect with the new Phase 2 measures, which are prompting employees and employers to look at getting people back in the workplace. Commentators have suggested possibilities may include that the scheme will reduce from covering 80% to 60% of employees’ wages, or that it will only pay out for part of the week so that employees can return to work part-time. At the time of writing, no further clear information regarding this has been produced.

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:

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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 12 May 2020 at 10am.

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.

Clinically extremely vulnerable individuals are advised to self-quarantine until the end of June on current advice (known as shielding). These individuals will have received letters from the NHS.

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

All employees should be told to practice social-distancing by always remaining at least 2m away from other people. Employers should be putting into place reasonable measures to facilitate this as much as practically 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 or advice from the NHS here:

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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 weeks of crowds of people packed on the tubes, beaches and national parks. The Government has now laid out its new plan for moving onto Phase 2 of the lockdown, but the key advice on “social distancing” remains a vital part of health and safety strategy.  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.”

The government has now produced eight detailed guidance notes on working safely during the coronavirus, to help ensure workplaces are as safe as possible:

These 8 guides cover a range of different types of work. Many businesses operate more than one type of workplace, such as an office, factory and fleet of vehicles. You may need to use more than one of these guides as you think through what you need to do to keep people safe.

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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:

The government guidance confirms, however, that employers can choose to furlough someone who is self-isolating, or off sick for other reasons. This may be something you want to consider to support your employees and maintain the business’ cash flow.

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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.

The government guidance confirms, however, that employers can choose to furlough someone who is self-isolating, or off sick for other reasons. This may be something you want to consider to support your employees and maintain the business’ cash flow.

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 in order to delay the rate of transmission across the country, except to provide education for children of key workers where childcare at home is not possible. Boris Johnson has announced, however, that the government hopes to be able to start reopening primary schools in England from 1 June 2020 at the earliest, in staggered openings admitting initially reception classes, Year 1 and Year 6.  This next stage will be kept under review.

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 the client’s and customer’s 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. Alternatively, you may want to consider whether it would be appropriate to furlough individuals who are struggling with caring responsibilities.

Boris Johnson, in his press briefing on 11 May 2020, indicated that, although employees are encouraged to return to the workplace, where parents do not have access to childcare that would be an “obvious barrier” to their ability to go back to work. Employers should consider options and hold discussions with affected employees; make use of the furlough scheme where appropriate and consider other options for supporting employees and avoiding redundancies.

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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. It is also possible to defer VAT payments due to coronavirus. 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:

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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, which have been extended and elaborated on in the past few weeks:

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 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;

  • a Coronavirus Large Business Interruption Loan Scheme, allowing viable businesses with turnover of more than £45 million will be able to apply for UK Government-backed support and firms with turnover of more than £250 million to borrow up to £50 million from lenders;
  • a COVID-19 Corporate Financing Facility (CCFF), in which the Bank of England will buy short-term debt from large companies.
  • business rates relief for retail, hospitality and leisure businesses;
  • a Small Business Grants Fund (SBGF), where eligible businesses in England in receipt of either Small Business Rates Relief (SBRR) or Rural Rates Relief (RRR) in the business rates system will be eligible for a payment of £10,000;
  • a Retail, Hospitality and Leisure Grant Fund (RHLGF) where eligible businesses in England in receipt of the Expanded Retail Discount (which covers retail, hospitality and leisure) with a rateable value of less than £51,000 will be eligible for cash grants of £10,000 or £25,000 per property;
  • a Future Fund scheme which will issue convertible loans between £125,000 to £5 million to innovative companies which are facing financing difficulties due to the coronavirus outbreak, subject to at least equal match funding from private investors (launching in May 2020);
  • a ban on evictions for commercial tenants who miss rent payments;
  • Coronavirus Retention Scheme otherwise known as Furlough Leave (please see Q3 for more information);
  • reimbursement of Statutory Sick Pay paid to employees; 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.

Further, the implementation 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:

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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 1998 provided they give sufficient notice (see Q14 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 has been recently clarified in its advice to employees, but this has not been confirmed in any information specifically at employers. The employee guidance confirms that annual leave will continue to accrue during furlough leave, as per the contract of employment. Almost all workers are entitled to 5.6 weeks of statutory paid annual leave per annum which they cannot go below.

Employers will have the flexibility to restrict when leave can be taken if there is a business need (both during the furlough period and the recovery period).

The latest Government guidance confirms that workers can take annual leave whilst on furlough leave. Based on this information, our understanding is that this would not interrupt the minimum three week furlough leave period.

The Government guidance confirms that if a worker takes annual leave whilst on furlough, they should be paid at their normal rate of pay or, where their rate of pay varies, calculated on the basis of the average pay they received in the previous 52 working weeks (in accordance with the Working Time Regulations (WTR)). Employers will be obliged to pay anything above the capped 80% wage not recoverable under the Scheme. Alternatively, the furlough agreement may agree to vary holiday pay entitlement.

If requesting an employee to take statutory annual leave, the employer must give them double the amount of notice in respect of the leave it wishes the employee to take. For example, if you wanted someone to take two weeks annual leave, the employer would need to give them four weeks notice.

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Disclaimer: The above information is correct as of 13 May 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.

Useful links

  1. Employers JRS  guidance

  1. Employer guidance for calculating furlough pay claim

  1. How to make a claim

  1. Guidance dealing with apprenticeships (contains further links to additional guidance)

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 contact us via the form below.

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