Last updated 26th March 2020 at 10.00am
During these unprecedented times and as the number of COVID-19 cases rise rapidly in the UK on a daily basis there are a number of questions on every employee’s mind about what might happen to their employment in the coming weeks/months.
Please see our guidance below in response to a number of common concerns being raised by employees.
Please be advised that the information provided below is for guidance only and was correct at the time of publication. As the situation in relation to COVID-19 is developing and changing on a daily basis, it is recommended that you always check for the latest information.
Your employer is under a duty to protect its employees’ health and safety and must take reasonably practicable steps to provide a safe place/environment for employees to work.
Employers should be actively conducting risk assessments in relation to Coronavirus. Your employer should be identifying whether the business or workplace is placing its employees at risk of contracting the virus.
Your employer should be actively taking steps to reduce the risk of its employees from being infected. Any steps employers are seeking to take must be communicated with its employees as soon as reasonably practicable.
Given the recent Government guidance on COVID-19, your Employer should identify any risks posed to its employees and implement protective measures, for example:
For employees working from home, any equipment provided to them should be checked for health and safety compliance and employers are required to carry out a risk assessment of an employee’s home / remote working set up.
As a general rule, if you are actually sick (whether with COVID-19 or otherwise) your employer will be required to pay sick pay in the normal way. You should check your contract to see if you are entitled to contractual sick pay in addition to statutory sick pay (SSP).
In response to this pandemic, the Government has changed the law in relation to an employee’s entitlement to SSP. An employee will be entitled to SSP if they are self-isolating because:
SSP is currently payable at £94.25 per week for up to 28 weeks (that this will increase to £95.85 per week as of 6 April 2020). This is payable from day one of any COVID-19 related absence.
On 17 March 2020 the Chancellor of the Exchequer, Rishi Sunak MP, announced that small and medium sized businesses with fewer than 250 employees (as of 28 February 2020) will be reimbursed for up to 2 weeks SSP per each eligible employee for any COVID-19 related absence. This will have retrospective effect from 13 March 2020.
Given the current circumstances and it not always being possible to obtain a fit note from a doctor as evidence of being unwell, the guidance has suggested that it would be reasonable for your employer to relax such requirements.
If you chose to self-isolate in these circumstances, it is unlikely that you will be entitled to SSP. It is important to discuss your concerns with your employers in order to come to a reasonable solution; your Employer should listen to your concerns and take steps to protect its staff.
It may be possible to agree with your employer to work from home or alternatively your employer may agree to allow you to take time off as annual leave or unpaid leave.
If you are disabled for the purposes of the Equality Act 2010, failure to allow you to work from/stay at home could amount to a failure to make reasonable adjustments and therefore be discriminatory.
The Prime Minister announced strict lockdown measures on 23 March 2020 that individuals should stay at home unless they need to go out for one of the following reasons:
It therefore appears that the Government are saying that, in addition to key workers, individuals can travel to work but only if the work really cannot be done from home. Employers should however be taking all possible steps to facilitate home working.
Employees in certain vulnerable groups (over the age of 70, with underlying health conditions or pregnant) have been strongly advised to follow social distancing and to self-isolate for 12 weeks. Employers should therefore particularly ensure that employees who fall within this vulnerable category stay at home.
You should check your employment contract to see what it entitles your employer to do. If your employer is forcing you to stay at home, this is technically a suspension, which is likely not expressly permitted by your contract (usually suspension is only permitted where there is a need to investigate misconduct, or employees are serving their notice periods). If there is no contractual right, the employer will need to seek to reach an agreement with you to work from home (in which case you should be paid as normal), or, if this is not possible, not attend work for a specific period (which would usually need to be treated as paid leave).
Many businesses will not be able to afford to pay people to stay at home and do nothing, or indeed they are a business which has been forced to close so effectively there is not business, at least for a time. Please see what we say below about laying off and “furlough leave” in these circumstances.
You should not be required to take annual leave if you are self-isolating in accordance with Government guidance or because you are unwell.
However, your Employer is entitled to ask you take annual leave if they or you do not wish to attend work but are fit to do so and you are unable to work from home.
Under the Working Time Regulations 1998 employers must give employees two days’ notice for every day that they require the employee to take off. For example, if your employer requires you to take 5 days annual leave then they will need to give you 10 days’ notice before the date on which they require the leave to start.
If you are working in a business which has become busier because of the pandemic, your employer can also cancel your leave. Again the employer must give at least as many days’ notice as the amount of days they are refusing. For example, if you have 5 days’ leave planned, your employer must give you 5 days’ notice prior to the date on which the leave was due to start.
There is no requirement for your employer to accept your cancellation of your holiday due to the virus. Unless your employment contact allows you to cancel your holiday, your employer could insist that you take your annual leave. However, it is likely that your employer may be more flexible given the current uncertain times.
The government announced that all schools would close on 20 March 2020 other than some provision remaining for the children of key workers and vulnerable children. Guidance has been published here on who may count as a key worker. However this leaves many employees juggling childcare responsibilities and working.
Employees should review their employments contracts as some employers offer paid leave.
Employees do have a statutory right to a limited amount of unpaid time off to care for dependents in an emergency situation (usually only a couple of days at most). There is also a statutory right to parental leave (unpaid) which could also be used.
You should also discuss with your employer about whether working from home or flexible working is possible instead as it may be that you are still able to perform your work from home with some flexibility around caring for your children.
Alternatively you could request to take paid annual leave.
There is no legal requirement to pay the employee for parental or dependant’s leave, or other discretionary periods of leave (unless the employee’s contract provides otherwise or the employer has specifically agreed otherwise).
Employers should also take care to ensure they are consistent among employees otherwise there is a risk of indirect discrimination if some employees are treated less favourably than others without a good reason.
Your employer can only do this if there is an express right to do so in your employment contract allowing for the right to be laid off without pay. If you are laid off in accordance with a contractual right to do so, you may be entitled to claim a statutory redundancy payment (if you have been employed for more than two years and have been laid off for 4 weeks continuously or 6 weeks in total) or a statutory guarantee payment (which is a form of compensation under law available to employees for up to 5 “workless days” in a three month period).
If there is no contractual right to lay you off without pay in your contract, and this has not been otherwise agreed between you and your employer, then you should be paid for this time. If employers do forcibly lay off employees on no or reduced pay without a contractual right or express agreement to do so, it would likely be a fundamental breach of contract, meaning that the employee could sue for unpaid wages or resign and claim constructive dismissal.
Businesses can still make redundancies in the normal way, and current employment rights, protections and obligation will continue to apply. However, employers will be reluctant to do this because they will want to retain staff for when things get back to normal.
The alternative for many employers is therefore to rely on so-called “furlough leave”. On 20 March 2020 the government announced the creation of the Coronavirus Job Retention Scheme. This allows employers to “furlough” their employees as an alternative to making them redundant. They can then apply to HMRC for a grant of up 80% of the wages of each “furloughed” employee up to a maximum of £2,500 per month. If your employment contract does not include a provision for this then your employer will require your consent to be “furloughed” (which is likely to be given if the alternative is redundancy or the business closing down). It is hoped that the scheme will be up and running by the end of April 2020 and will be backdated to 1 March 2020. We don’t yet have all the details on this scheme, including how it applies to those who have already been made redundant.
You must not work for your employer during this time but are expected to return to your employment once the current circumstances are resolved.
Employers which have already announced or made redundancies or commenced redundancy consultation will need to consider whether and how the government’s furlough scheme may change their intentions. This is not currently clear. If you are in this situation, you should speak to your employer about the scheme, and ask for reinstatement and furlough instead.
Since the outbreak of the virus there has been an increase in racism and harassment against certain individuals. Notwithstanding the current unprecedented times, unlawful discriminatory conduct is not justifiable and should not be tolerated. Your employer continues to be liable under the Equality Act 2010 and should take swift, decisive action to stamp out such behaviour.
Employees should be aware that medical information and data about your health is ‘special category data’ under GDPR/domestic data protection legislation. Employers must continue to comply with their obligations under this legislation. Generally speaking, this means that employers should take care not to collect more information about staff members’ health than necessary, and whilst they need to keep staff informed about any cases of the virus within the organisation they probably don’t need to name individuals and they shouldn’t provide more information than necessary.
Please contact our team for legal advice relating to your particular circumstances on 0800 437 0322 on request a call back.
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