|Coronavirus (COVID-19) FAQS|
Disclaimer: These FAQs are intended to provide information and guidance on the HR and employment law implications of the Covid-19 situation. They do not constitute legal advice and should not be relied upon as such.
Managing employees during the pandemic
Last updated: 28/05/2020
1. Are there particular issues an employer should consider in relation to employees who are temporarily working from home due to Covid-19?
It is important for employers to consider the health and safety implications of home-working; employers have the same health and safety responsibilities for home-workers as for any other employees. The Health and Safety Executive guidance notes that when someone is working from home, whether permanently or temporarily, their employer should consider:
- How to keep in touch with them
- What work they will be doing and for how long
- Whether that work can be done safely
- Whether any control measures need to be put in place to protect them
From an employee wellbeing perspective, it is important to have regular communications with those who are working from home, to make sure they are healthy and safe and that they do not feel disconnected or isolated.
There are also potential data protection risks to consider, as the home working environment may present challenges regarding data security. To help address these issues, employees should be reminded of the importance of: ensuring proper password protection on any home-based devices; ensuring secure access to the internet from home; allowing security software and firewall updates to install regularly (e.g. overnight); not opening suspicious emails; and ensuring documents are stored and disposed of safely. The Information Commissioner’s Office (ICO) has produced guidance on the data security issues that employers and employees should consider in relation to home working, with tips on areas such as cloud storage, remote applications and email.
As employers will remain the data controller of any personal data their employees process in the course of their employment, employees should also be reminded how to deal with any personal data breach they might experience while working from home. The 72-hour timeframe for notifying the ICO of personal data breaches remains in force during the Covid-19 crisis, although the ICO acknowledged in a recent publication on its regulatory approach at this time that the current circumstances “may impact” on organisations’ ability to meet that reporting deadline. It is, however, still important to have a solid incident response plan in place so that everyone knows what a data breach looks like and who they should report it to. (For further information on data protection considerations, see the FAQs on ‘Data protection during the pandemic’.)
2. Does an employee need to self-isolate if they return from overseas? (Last updated 28/05/2020)
From 8 June, the Government intends to introduce a 14 day self-isolation period for passengers arriving in the UK from overseas (the quarantine period). This means that all passengers returning to the UK from overseas on or after 8 June, including British nationals and those who live in the UK (other than those on the exemption list), will need to complete a contact form and self-isolate for 14 days. The contact form will require the individual to provide contact and travel information so that they can be contacted if they, or someone they may have been in contact with, develops the virus, and to enable their compliance with the self-isolation requirement to be monitored. Self-isolation means that individuals should not go to work, school, or public areas, or use public transport or taxis. They should not have visitors, including friends and family, unless they are providing essential support.
Failure to complete the contact form will be punishable with a £100 fixed penalty notice. The police will have the power to enforce the quarantine requirements and in England may issue a fixed penalty notice of £1000, or potential prosecution with an unlimited fine.
Government guidance includes a number of exceptions to the self-isolation requirements, which you should read to consider if any might apply to any of your employees, whether they are travelling for work or not. Some key exceptions include road haulage and freight workers and in some circumstances workers engaged in emergency works relating to certain essential services (such as water supplies, electricity generation, rail maintenance, off-shore installations, data security, etc.), as well as defence contractors, some medical professionals and a person who resides in the UK and who pursues an activity as an employed or self-employed person in another country to which they usually go at least once a week.
Individuals travelling from Ireland, the Channel Islands and the Isle of Man will not need to complete the contact form or self-isolate on returning to the UK.
The rules will be reviewed every three weeks.
2(a). How should we manage employees who have booked or wish to book a personal trip overseas bearing in mind the 14 day quarantine rules? (Last updated 28/05/2020)
If an employee can work from home, then they can continue to work from home during the quarantine period and should be paid their normal pay.
However, if working from home is not possible, the employee will not be able to work. This raises the question of how employers manage employees who return from a personal trip overseas and are required to enter a 14 day quarantine period. The stance you take may depend on whether an employee has booked their holiday before or after you communicate your approach to quarantine leave.
The Government has not yet addressed the status of quarantine leave in the employment relationship. It is possible that SSP will be payable during the period of quarantine leave, but the government has not yet confirmed whether or not this is the case. If SSP is triggered by the quarantine period where an employee cannot work from home, you will need to consider what position you wish to take in relation to company sick pay. You may be able to take the view that company sick pay is not payable in cases of quarantine self-isolation where an employee is not actually ill, on the basis that any company sick pay policy was not designed to – and does not – cover such circumstances. However, we suggest that you seek advice if you wish to make changes to your company sick pay provision.
If SSP is not payable, to facilitate the taking of quarantine leave, you could provide that employees must book holiday to cover this extra time off. If they do not have enough holiday to take, you could allow employees to take unpaid quarantine leave to cover the quarantine period. For personal overseas travel that is arranged after you have communicated your approach to the quarantine period, you could also provide that if an employee has not agreed with you before they travel overseas that they can be absent for the quarantine period, you can treat the absence as unauthorised and take disciplinary action.
Note, though, that we do not recommend that you instruct employees not to make personal trips overseas. Instead, it is important that you communicate clearly to employees what your policy on quarantine periods is, and that it may change depending on any future Government guidance on how employers should treat them. In addition, we would suggest that you explain to employees the Government rules on contact forms and quarantine periods for returning travellers. You may want to reiterate processes for booking holiday, restating your right to refuse holiday requests and the requirement for employees to get their holiday request approved before booking any travel. Knowing that they are required to take holiday to cover quarantine may influence employees’ behaviour when they consider where they wish to travel for their holidays, e.g. it could dissuade someone from booking a long weekend trip abroad. We also suggest that you make clear to employees that any breach of the quarantine rules will be treated as gross misconduct.
If an employee has complied with quarantine requirements, then unless they have developed Covid-19 symptoms or are otherwise required to self-isolate under another aspect of the Government guidance, from a health and safety perspective it should be safe for you to allow them to re-enter the workplace at the end of the quarantine period despite their travel overseas.
2(b). Can we prevent employees from taking holiday, e.g. because we need all hands on deck during the recovery period, or because we don’t want them travelling for safety reasons? (Last updated 28/05/2020)
If an employer wishes to prevent employees from taking holiday on particular dates, for example because it needs all employees at work during the recovery period, it can do so by giving notice in accordance with the Working Time Regulations (WTR), which require the employer to give as many days’ notice as the period of holiday to which the notice relates.
Generally, an employer should exercise caution if it wishes to cancel a period of annual leave which it had previously agreed an employee could take. Cancelling holiday at short notice will be unpopular and may damage employee relations. In addition, if an employee had made plans, e.g. to travel, they may seek compensation from the employer in respect of any cancellation charges that they incur. It is also worth noting that if you act unreasonably in cancelling an employee’s holiday plans, there is a risk that this could amount to a breach of the implied duty of mutual trust and confidence.
If you don’t want employees to travel for safety reasons, you should bear in mind that, as noted above, if an employee has complied with quarantine requirements, then unless they have developed Covid-19 symptoms or are otherwise required to self-isolate under another aspect of the Government guidance, from a health and safety perspective it should be safe for you to allow them to re-enter the workplace at the end of the quarantine period despite their overseas travel. Accordingly, it may not be reasonable for you to seek to restrict employees’ travel plans for this reason.
Employers that prevent employees from taking holiday on particular dates should also be aware of their obligation to enable all employees to take their annual leave – usually, this must be during the relevant holiday year.
The Government press release explaining the changes stated that they will give all employers the flexibility to allow workers to carry over leave at a time when granting annual leave could leave them short-staffed and enable workers to continue working in the national effort against Covid-19 without losing out on their holiday entitlement.
- whether the business has faced a significant increase in demand due to coronavirus that would reasonably require the worker to continue to be at work and cannot be met through alternative practical measures;
- the extent to which the business’ workforce is disrupted by the coronavirus and the practical options available to the business to provide temporary cover of essential activities;
- the health of the worker and how soon they need to take a period of rest and relaxation;
- the length of time remaining in the worker’s leave year, to enable the worker to take holiday at a later date within the leave year;
- the extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the coronavirus situation; and
- the ability of the remainder of the available workforce to provide cover for the worker going on leave.
Where holiday is carried forward, the guidance emphasises that it is best practice to give employees the opportunity to take it at the earliest practicable opportunity. Members can access further guidance on how to handle holiday that has been carried forward in the HR & Legal Resources section of our website.
3. What if employees want to cancel their booked annual leave? (Last updated 28/05/2020)
This may result in employees asking to cancel pre-booked periods of annual leave. Employers should be flexible in this regard, but should monitor the situation carefully.
In those circumstances, employers may find that they need to refuse some holiday requests in order to meet staffing needs. If they do so, employers will then need to be mindful of their obligation to enable all employees to take their annual leave – usually, this must be during the relevant holiday year, but (as discussed at question 2(b), above), regulations introduced on 27 March allow workers to carry forward up to four weeks’ annual leave into the next two leave years, if they have been unable to take it due to Covid-19.
Some employers are encouraging employees to take a pro-rata amount of annual leave rather than storing it up. Even though the current lockdown means that holiday travel is not possible, there may still be some benefit to employees in having a period of relaxation away from work. In this regard, it is worth noting that the Government guidance on holiday entitlement and pay during coronavirus makes clear that employers can still require employees to take holiday on specified dates, notwithstanding the Covid-19 pandemic, by giving notice in accordance with the WTR. The required notice is double the number of days’ holiday you want the employee to take. (Note, this guidance also applies where employees are on furlough, although certain additional issues need to be considered – see questions 21 and 21(a) of the FAQs on ‘Furlough under the Coronavirus Job Retention Scheme’ for details.)
4. Can we continue with disciplinary and grievance processes during the Covid-19 crisis?
Employers may be unsure whether they can progress a disciplinary or grievance process, e.g. by conducting investigations while home-working, and holding hearings remotely via Skype or Zoom, where key employees are working from home or are furloughed. Here, we consider the potential issues such action could raise.
HR and line managers who are working from home should, we think, be able to conduct investigations into grievances or alleged misconduct remotely, provided they have access to relevant technology and materials. For example, if an investigating manager needed to review social media posts or emails they could presumably do this from home, whereas inspecting the site of an alleged act of misconduct could not be done remotely. Employers will need to consider whether a reasonably thorough investigation has been completed in each individual case and decide on that basis whether it would be appropriate to hold the disciplinary/grievance hearing, or suspend the process until further investigation is possible.
Where the necessary investigation has been completed and the employer decides that a hearing can be held, there will be particular concerns where an employee is accused of gross misconduct and the likely outcome of the disciplinary hearing would be dismissal.
In our view, holding a hearing remotely should not of itself make a dismissal unfair, provided that all other procedural steps are taken correctly, e.g. there was a thorough investigation, the employee has been given full details of the allegations against them and had time to consider those allegations, etc. When seeking to schedule a remote hearing, however, the employer will need to be careful to check the availability of employee's companion and ensure that all parties have access to the necessary technology.
With regard to grievance proceedings, we doubt that holding a hearing remotely would, of itself, amount to a fundamental breach of the implied term of trust and confidence giving an aggrieved employee grounds to resign and claim constructive unfair dismissal. That said, assuming it has been possible to complete a proper grievance investigation and all that is left to do is hold the hearing, the most practical approach may be to discuss the situation with the aggrieved employee and ask whether they would prefer to have their grievance dealt with via a remote hearing, or suspend the process until the rules on staying at home are relaxed and an in-person hearing can be arranged.
The situation will be more complex if some/all of the employees that need to be involved in the process are on furlough leave (see the FAQs on ‘Furlough under the Coronavirus Job Retention Scheme’ ). One of the conditions for furlough leave is that an employee cannot do any work for their employer during the furlough leave period and work is defined to include generating revenue for or providing services to the employer or an associated organisation. Accordingly, we do not think it would be possible for an HR manager or line manager to run a grievance or disciplinary process while on furlough leave. We note that ACAS guidance on disciplinary and grievance processes during coronavirus suggests that employees on furlough can take part in disciplinary and grievance proceedings, including (among other things) chairing and taking notes on behalf of the employer at a hearing, provided they do so voluntarily and in accordance with public health guidelines. However, in our view, carrying out these tasks would clearly amount to providing services for the employer even if the employee concerned could be said to be acting voluntarily. We would therefore caution employers against relying on this ACAS guidance to claim furlough pay under the Scheme in respect of HR and line managers who perform these tasks in any continuing disciplinary or grievance proceedings.
As for the aggrieved employee, or the employee who is the subject of disciplinary proceedings, we think that participating in a grievance or disciplinary hearing is unlikely to amount to ‘work’, and that such participation should therefore be possible while the employee is on furlough leave. The ACAS guidance indicates that this is possible provided the employee is acting voluntarily. This is potentially problematic, as there may be cases in which an aggrieved employee, or one who is the subject of disciplinary proceedings, is far from a willing volunteer. However, in practice, if an employee is not willing, they are likely to simply refuse to engage in the process at all. In these circumstances, the employee’s furlough will not be broken, but the employer will need to consider whether it is possible to conduct a fair process in the employee’s absence or whether the process needs to be suspended to give the employee a chance to change their mind about participating.
With regard to the employee’s companion, the 30 April update to the Government guidance on furlough confirms that employees who are union or non-union representatives may undertake duties and activities for the purpose of individual or collective representation of employees, so long as they do not thereby provide services to or generate revenue for or on behalf of the employer or a linked organisation. We think this should permit an employee’s companion (whether they are a colleague or a union representative) to perform their role in any disciplinary or grievance proceedings. Again, the ACAS guidance notes that an employee acting as a companion may do so while on furlough provided they are acting voluntarily. This is not likely to present a problem in practice as employees choose their own companions, companions typically only act as such if they are willing to do so and, in so acting, they provide a service to the employee not to the employer.
Finally, the ACAS guidance also indicates that an employee on furlough can be interviewed as part of an investigation and can be a witness at a hearing, provided they do so voluntarily. Although some employees may well be willing to be interviewed in an investigation, or to be a witness at a hearing, we think it is arguable that doing so could amount to providing services to the employer and therefore not be permitted during furlough. Whether or not this is the case will depend on the individual circumstances.
In some cases, it may be necessary to suspend the relevant process until after the Covid-19 crisis has passed, e.g. if managers, and/or HR who need to run the process are on furlough leave and unable to do so. We recommend seeking advice on your particular circumstances.
5. We’re due to on-board some new employees next week. What should we do about carrying out right-to-work checks given that we won’t be able to meet the employees in person?
The usual right-to-work check process requires an employer to physically inspect an employee’s original right-to-work documents before the employee starts work. So under the normal rules it would be necessary for you to take a copy of the employee’s original right-to-work documents (e.g. passport), and sign and date the copy for your records.
However, during the Covid-19 outbreak the enhanced stay at home guidance has made it exceedingly difficult for employers to carry out a normal valid right-to-work check. Helpfully, the Home Office has recently released updated right-to-work check guidance, which will just be in place temporarily. This temporary guidance allows right-to-work checks to be completed over video call without the employer having the original documents.
If you are carrying out a right-to-work check for a new starter, it is important to read the Home Office's new temporary guidance carefully to make sure that you follow the process precisely. The guidance also includes a requirement for employers to carry out a retrospective check of the original documents within eight weeks of the end of the temporary measures. The Home Office has stated that it will inform employers when the temporary measures come to an end.
6. Will Covid-19 impact on a migrant employee’s application for indefinite leave to remain (ILR)?
In addition, a migrant applying for ILR must provide evidence that they have not been absent from the UK for more than 180 days in a 12 month period. If a migrant has gone to their country of origin due to the Covid-19 crisis, they and their employer should provide evidence of any disruption and absence within the ILR application. The Home Office will take into account 'compelling reasons' as to why there has been an extended absence. With sufficient evidence (e.g. travel tickets showing the dates of travel) the migrant should be able to prove that their extended absence was due to Covid-19 related disruption.
7. What legal obligations should employers keep in mind when making decisions relating to Covid-19?
- To protect the health, safety and welfare at work of the workforce and others who might be affected such as customers, suppliers and visitors (under the Health and Safety at Work Act 1974 as amended and related legislation). There is also a common law obligation to take reasonable care of the health and safety of their workforce.
- Not to discriminate against staff with protected characteristics, and to make reasonable adjustments for those with disabilities (under the Equality Act 2010) Health and Safety.
Employers should also be aware of their obligations under data protection law. Some of the issues that might arise when processing personal data relating to Covid-19 are discussed in the FAQs on ‘Data protection during the pandemic’.