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People

Last updated 4.45pm on 30/03/2020

These ‘People’ FAQs are divided into the following sections:

  • Impact of enhanced ‘stay at home’ guidance
  • Furlough under the Coronavirus Job Retention Scheme
  • Entitlement to pay (sickness, self-isolation, refusal to come to work)
  • Issues at the workplace
  • Covid-19 and childcare issues for employees
  • Lay-off and short-time working

The ‘Financial Support’ FAQ can be found at the bottom of the page

Impact of enhanced ‘stay at home’ guidance

1. Has the Government now ordered all non-essential businesses to close?

In a statement on 23 March, the Prime Minister asked the country to take additional and very significant measures to slow the spread of Covid-19. Certain non-essential businesses have been required to close, but these are primarily retail and leisure establishments (a list is available here). 

Businesses not on that list, including manufacturers, have not been required to close. However, it is vital to follow Government advice and take every step possible to support the Government and reduce the burden on the NHS. This includes making sure that anyone who can work from home is now doing so and ensuring that employees who cannot work from home are able to work safely, observing social distancing requirements. 

On 24 March, Make UK published detailed advice for manufacturers that are assessing the impact on their business and deciding whether they are able to safely remain operational. This advice is available here.

2. What can we do about employees who refuse to come to work?

Following the Prime Minister’s statement on 23 March, employees may have assumed that their workplace would close and we have heard from member companies that some employees have since decided not to come into work.

Businesses that are able to continue to operate safely can remain open – and can require their employees who are unable to work from home to come to work if they can travel to work safely. However, employees will understandably be concerned about the implications of the enhanced ‘stay at home’ guidance for them and their families. They may also have lost access to childcare or transportation to work. In this environment, should you choose to remain open, we advise that you avoid taking disciplinary action against members of staff who are unable to attend.

We deal with the issue of pay for these employees below, at question 3 in the section ‘Entitlement to pay (sickness, self-isolation, refusal to come to work)’.

3. What if employees are stopped by the police when travelling to work?

The Government has confirmed that the police and other relevant authorities will have the power to enforce the enhanced ‘stay at home’ guidance. There are reports of police stopping employees when travelling to and from work and asking them why they are not at home. 

We would therefore suggest that employers provide employees who cannot work from home and who they still require to come to the workplace, with a letter to show to the police in the event that they are stopped and questioned when travelling to or from work. This letter would confirm that:

  • their employer is not one of the businesses that the Government has required to close;
  • their workplace remains open; 
  • they cannot work from home due to the nature of the business/their role; and
  • they are required to travel to attend work.  
There is no legal requirement for an employer to provide such a letter, but we recommend it as a way of reducing stress for employees who are still required to travel to work and making things easier for the police who have been tasked with enforcing the enhanced stay at home guidance. We have produced a template letter that employers can use for this purpose.

Furlough under the Coronavirus Job Retention Scheme

1. What is Furlough Leave?

Furlough leave is a new form of leave which the Government has made available to UK businesses via its Coronavirus Job Retention Scheme (the ‘Scheme’). ‘Furlough’ is not a technical term typically recognised in UK HR/employment law (the concept of ‘furlough leave’ is an import from US labour law), but we take it to mean that a business is in a position where it cannot provide any work for an employee due to the impact of Covid-19. A furloughed employee will remain on the employer’s payroll, so furlough leave will be a form of authorised absence. The guidance provides that furlough leave must be for a minimum of three weeks. It is not clear whether this can be interrupted. 

The Scheme was announced by the Chancellor on Friday 20 March as part of a package of “temporary, timely and targeted measures to support public services, people and businesses through this period of disruption caused by Covid-19”. The Scheme is intended to run for at least 3 months from 1 March, but the Government has said it will be extended if necessary and is designed to support employers whose operations have been severely affected by coronavirus (Covid-19). Where a company is being taken under the management of an administrator, the administrator will be able to access the Scheme. 

Latest Government guidance on the Scheme was updated on 26 March, but we still think that there are various points that need further clarification.   

2. In summary, how does the Scheme work?

The Government guidance states that all UK businesses are eligible under the Scheme if they have created and started a PAYE payroll scheme on or before 28 February 2020 and have a UK bank account. Employers can claim for 80% of furloughed employees’ usual monthly wage costs, up to £2,500 a month, plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that wage. 

An employer can choose to fund the difference between the 80% / £2,500 payment and an employee’s full salary, but there is no requirement to do so. Employees on reduced income in these circumstances may also be eligible for other support including Universal Credit. 

Employers will reclaim the payments from HMRC by providing information on an online portal about employees who have been furloughed and their salaries. The portal is unlikely to be ready until the end of April, which will mean that any payments via the portal will not be available until it is operational either. Businesses that cannot survive until then could access the Coronavirus Business Interruption Loan Scheme (CBILS), which is offering loans of up to £5 million for SMEs through the British Business Bank, or the Covid-19 Corporate Financing Facility. The CBILS is now open for applications; details are available here.  

3. Which employees can be furloughed?

Furloughed employees must have been on the employer’s PAYE payroll on 28 February 2020, and can be on any type of contract, including:

  • full-time employees
  • part-time employees
  • employees on agency contracts
  • employees on flexible or zero-hour contracts

In respect of employees on fixed-term contracts, we assume that their eligibility would cease on the date their fixed term is due to end. However, we are seeking clarification on this from the Government.

We assume that agency workers who are employed by the agency will be furloughed by the agency and not by their hirer. Agency workers who are not employees are outside scope.

Employees on unpaid leave (e.g. those who have been laid off without pay) cannot be furloughed unless they were placed on unpaid leave after 28 February.

An employer does not have to put all its employees onto furlough where it has work for some employees to do. Importantly, however, when on furlough, an employee cannot undertake any work, provide services, or generate revenue for or on behalf of their employer. If an employee is working for you, but on reduced hours, or for reduced pay, they will not be eligible under the Scheme.

4. Can an employer furlough new starters?

You can only furlough employees who have been on your payroll since 28 February 2020. Employees with a start date after 28 February 2020 cannot be furloughed or claimed for under the Scheme.

5. What about employees who have already left the business?

You can use the Scheme to furlough employees whom you have made redundant since 28 February 2020, if you re-hire them (effectively as if the redundancy hadn’t taken place). You would need to contact the relevant employees, seek their agreement to be re-employed and then their consent to being furloughed. Their furlough leave can be backdated to the later of the date their employment terminated, or 1 March 2020. This would involve putting the employees back on the payroll and, if you choose to, ‘unpicking’ any termination payment arrangements. At the end of the furlough period, these individuals would remain employed by you. If redundancies are necessary at that point, you would need to start a new redundancy process.

6. Can an employer ‘furlough’ those who need to self-isolate, or who are unable to work due to childcare needs?

The Government guidance specifies that employees who are on sick leave or self-isolating should get Statutory Sick Pay, but can be furloughed after this. It seems, therefore, that employers cannot ‘select’ an employee to be furloughed where they are unable to attend work, for example, because someone in their household has symptoms of Covid-19 and they are therefore required to self-isolate. However, such self-isolation is only required for 14 days and the employee could be furloughed when the period of self-isolation is over. 

The Scheme is expressly stated to be available to employees who are shielding in line with public health guidance (i.e. extremely vulnerable individuals who are most at risk of suffering severe and life-threatening symptoms if they contract Covid-19 and whom the NHS is contacting individually to advise them to remain at home for at least 12 weeks). 

What about other vulnerable employees (e.g. those who are over 70, diabetic, or pregnant), who are not covered by the shielding guidance but who are adhering strictly to social distancing advice and therefore do not feel able to come to work? If an employer has to-date been treating them as if they are on sick leave and paying them SSP (and contractual sick pay, if applicable), it may be possible to agree with them that they will no longer be treated as on sick leave but will instead be placed on furlough. However, it is not absolutely clear from the current guidance whether that is the case. If instead the employee has been on unpaid leave, it seems clear that the employer could agree with them that they will instead be placed on furlough (provided that their unpaid leave began after 28 February). We consider it likely that the position would be the same for employees who do not feel able to come to work because they are living with a vulnerable person.

Another potential complication for employers relates to employees who are on long-term sick leave. Firstly, an employer might want to furlough employees who are in receipt of full company sick pay, but such employees are unlikely to agree to this as they would lose out on a proportion of their pay – and it would not be permissible under the Scheme as the guidance says that those on sick leave should receive SSP and can only be furloughed after this. Secondly, those who are no longer in receipt of any sick pay (SSP or contractual) may wish to be furloughed even though they are still sick, in order to receive some pay. However, if being furloughed would technically count as returning to work, would an Occupational Health report support this as a possibility? If it would, this risks ‘resetting’ the clock in relation to sick pay entitlement and under absence management procedures, if they go off sick again at the end of the period of furlough leave. 

As for employees who cannot work due to childcare needs, we assume that they can be furloughed. Some of these employees might already be on unpaid leave (e.g. parental leave or other authorised unpaid leave) and the guidance states that an employee who is on unpaid leave cannot be furloughed, unless they were placed on unpaid leave after 28 February. However, it is not clear whether this restriction applies to all types of unpaid leave, including parental leave, or only to unpaid lay-off. 

The guidance published on 26 March does not specifically refer to any requirement for the employer to establish that a furloughed employee would otherwise be made redundant/laid off, so it appears to be possible to furlough employees who cannot work for childcare reasons, or because they are shielding, even though the employer would otherwise still have work for them to do. That said, when the scheme was originally announced it was stated to be aimed at protecting employees who would otherwise have been made redundant/laid off. We will seek confirmation from the Government that the availability of the Scheme is no longer intended to be limited in this way.

Note that when employers are making decisions as to who to offer furlough to, the guidance states that equality and discrimination laws will apply in the usual way.

7. How will furlough leave affect those on maternity leave or due to go on maternity leave?

Since maternity leave is triggered automatically on the birth of a baby, if not commenced earlier, an employee who gives birth while on furlough would switch to maternity leave and the normal rules around eligibility for Statutory Maternity Pay (SMP) or Maternity Allowance would apply. Employees on maternity leave must take at least 2 weeks off work (4 weeks if they work in a factory or workshop).  

Employees who are on maternity leave already, and in receipt of SMP, or no pay in the final 13 weeks of leave, could potentially be better off if they were placed on furlough leave instead and receiving 80% pay. In order to do this, they would have to give notice to end their maternity leave. Normally 8 weeks’ notice of return is required, but this can be reduced by agreement. The employer could then agree with the employee that she would be furloughed, but it would be sensible to make sure she understands that once she has ended her maternity leave she can’t restart it at the end of furlough leave. (With regard to employees in the final 13 weeks of their maternity leave, note that the guidance states that an employee who is on unpaid leave cannot be furloughed, unless they were placed on unpaid leave after 28 February. However, it is not clear whether this restriction applies to all types of unpaid leave, including the unpaid part of maternity leave, or only to unpaid lay-off).

For employees who receive enhanced contractual maternity pay, the position is slightly different. The guidance states that if you offer enhanced (earnings related) contractual pay to women on maternity leave, this is included as wage costs that you can claim through the Scheme. However, we are uncertain about how this would operate as it would seem to require employees to be on both maternity leave and furlough leave at the same time.

Clarification on these issues would be welcome.

(The guidance provides that the same principles apply where an employee qualifies for contractual adoption, paternity, or shared parental pay.)
 

8. Can an employee ask to be furloughed?

An employee can ask to be put on furlough leave, but there is no right to furlough, so it is up to the employer whether or not to accede to such a request.

As well as taking account of the eligibility criteria under the Scheme, employers considering whether or not to place a particular employee on furlough should be aware that equality and discrimination laws continue to apply to such decisions – see further question 9 below.

9. How do you choose whom to furlough if you still have work for some employees to do?

The Covid-19 crisis means that many employers do not have enough work for all of their employees, but there is still some essential work to be done in certain functions or departments. The Government guidance helpfully notes that employers do not have to put all of their employees on furlough. However, it also makes clear that when employers are making decisions in relation to whom to offer furlough to, equality and discrimination laws will apply in the usual way.

As a first step, employers need to think carefully about what roles they still require employees to perform and the numbers they need in each role. For example, an employer seeking to reduce its shopfloor workforce by 30% will still require a certain number of supervisors to work, in addition to the production operatives.

Having identified the numbers it needs to place on furlough in particular roles, our view is that an employer can probably ask employees to volunteer for this. Doing so may help to reduce any sense of unfairness, as some employees may prefer to continue to work and receive full pay, while others (in particular those who fall into a vulnerable category, or who have childcare needs) may prefer to cease work and remain at home on reduced pay. Assuming that the employer is not proposing to top up employees’ pay above the amount that it can recover from the Government under the Scheme, whether employees would prefer to be furloughed or to continue to work may also be influenced by how much they are normally paid. The Scheme covers up to 80% of employees’ gross pay, capped at £2,500 per month (plus the employers National Insurance and minimum auto-enrolment pension contributions – see question 13 below). If £2,500 represents 80% of an employee’s gross monthly pay, their full gross monthly pay would be £3,125 per month, or £37,500 per year. Employees whose normal pay is higher than this will suffer more than a 20% pay cut and therefore might be less keen to be furloughed than those for whom the pay cut is limited to 20%. That said, many employees on lower pay may be unable to afford even a 20% pay cut. Accordingly, while we think that most employees would agree to furlough if the alternative is redundancy, they may be less likely to actively volunteer for it if they have the option of continuing at work on normal pay.

Where an employer receives more volunteers than it needs to furlough, or does not receive enough volunteers, it will need to conduct some sort of selection process. The recommended approach may differ depending on whether there are too many or too few volunteers. If an employer has too many employees volunteering to be furloughed, it will need to decide which volunteers to turn down based on which employees have the necessary skills to perform essential retained roles. Alternatively, the employer may wish to consider rotating groups of employees on and off furlough – see question 16, below, for discussion of whether this is possible. If an employer has too few employees volunteering to be furloughed, it will have to look at each of the roles for which it has too many employees still wishing to work and apply appropriate selection criteria.

The safest approach may be to conduct an objective selection exercise in relation to the roles required in order to ensure you retain the best employees but, in reality, practical considerations as to which employees are still able to work, as well as employee relations issues, will probably take precedence. It is also likely that if an employer is in serious financial difficulty and has a really pressing need to furlough employees as soon as possible in order to be able to continue trading, a more limited or cursory approach to the decision may be acceptable. Please email our HR and legal experts or call our National Adviceline on 0333 202 2221 if you need our support.

While employers must take care not to discriminate when selecting which employees to furlough, it is worth noting that certain otherwise discriminatory selection decisions might potentially be justifiable in the circumstances of the Covid-19 crisis. For example, selecting employees aged over 70 could amount to age discrimination. However, it may be possible to justify this as a proportionate means of achieving a legitimate aim – namely, protecting the health and safety of vulnerable employees as identified by the applicable Government guidance.

Employers will also need to keep the situation under review, as they may find that work volumes increase or reduce unexpectedly and they need to bring people back from furlough, or place more employees on furlough, as things evolve.

10. What process should you follow to put an employee on furlough?

Employees must agree to furlough leave as it involves a change in terms and conditions. Given the unprecedented circumstances of the Covid-19 crisis, it is likely that most employees will agree, particularly if the alternative is redundancy. 

Where practical, it is best for an employer to write to the employee setting out the proposed move to furlough leave and ask the employee to sign and return a copy of the letter. E-signatures would be appropriate if the company has the necessary software. If e-signatures are not possible, the employer could ask employees to sign and return a hard copy letter. However, if the letter is sent to employees by email, they may not have access to printing and scanning facilities that would enable them to provide this. Accordingly, employers could as an alternative provide for employees to confirm their agreement by email or text message to an appropriate contact at the company (e.g. HR or line manager) using a set form of words, such as “I confirm my agreement to the variation of my terms and conditions of employment to place me on furlough leave as described in the letter from the company dated [DATE]”, or replying to the employer’s email using voting buttons.

Where a large number of employees is involved, seeking individual agreement may be time-consuming and administratively burdensome. Given this, employers that recognise a trade union for collective bargaining with a defined bargaining unit and have a standard incorporation clause in individual contracts of employment might prefer to consult and obtain agreement to furlough from the trade union. In our view, if the collective bargaining arrangements cover changes to pay and hours, then they should allow furloughing. That said, there is a question-mark over whether a tribunal would agree that the changed term was ‘apt’ for incorporation in the employees’ individual contracts. Our tentative view is that the term should be considered apt for incorporation, but this cannot be confirmed for certain. In the circumstances, if the union agrees, it would be best to also communicate/send letters to employees individually. We would suggest getting confirmation from employees that they acknowledge the change to terms has been agreed by the union and incorporated into their contracts temporarily.

If an employer wants to speed up the process and/or anticipates that the union will not agree for employees to be furloughed on 80% of their pay, they may be reluctant to go through the usual collective negotiation in view of the delay this is likely to cause. In this case, we would suggest that the employer impress upon the union the exceptional and time-critical circumstances. The employer could offer the union a shortened process, for example, one meeting at which the proposal would be discussed and agreement sought, but make it clear that if the union does not agree then the employer will have to go directly to the employees for their individual agreement. While there is a degree of risk that making direct offers to the employees might contravene section 145B of the Trade Union and Labour Relations (Consolidation) Act, we think this risk is limited given the temporary nature of the proposed contractual changes.

Pressure of time may mean that employers seeking to place employees on furlough leave need to truncate the normal process they would follow when seeking employees’ agreement to a significant contractual change. Please email our HR and legal experts or call our National Adviceline on 0333 202 2221 if you need our support.

(Note, see further question 12, below, regarding statutory collective consultation requirements if 20 or more redundancies are proposed in the event that employees do not agree to be furloughed.)

11. What happens to an employee’s terms and conditions of employment during furlough leave?

The Government guidance states that employees who have been furloughed “have the same rights as they did previously”, including statutory sick pay entitlement, maternity rights, other parental rights, rights against unfair dismissal and rights to redundancy payments. Accordingly, it appears that all statutory and employment rights will continue during furlough leave. 
 
However, it should be possible for employers to agree changes to contractual benefits when they seek employees’ agreement to furlough leave, for example changes to bonus schemes, or the suspension of other benefits.

12. What if employees don't agree to be placed on furlough leave?

If employees do not agree to being placed on furlough leave, the first step for an employer would be to engage with employees if possible, explaining the need for furloughing, the benefits to employees and the alternatives. If employees still do not agree, the employer can either:

  • continue to pay the employees full pay; or
  • consider lay-off (which would be less attractive to employees); or
  • move to redundancies, if the conditions for redundancy are met in the usual way.  

Employers who are in the position of proposing redundancies because employees have refused to be placed on furlough leave will be subject to the usual employment law requirements of redundancy consultation. Employers that are facing cash flow difficulties as a result of the Covid-19 crisis may struggle to carry out statutory collective consultation if this is required (minimum of 30 days’ consultation where 20 or more redundancies are proposed within a 90 day period, or 45 days’ consultation where 100 or more redundancies are proposed). 

Employers can shorten the timeframe of their statutory collective consultation if the “special circumstances” defence applies, i.e. where it was not reasonably practicable to comply with the collective consultation requirements in full and that the circumstances behind this were “special”. This could relate both to the practicability of electing employee representatives and running an election and consultation process remotely and the employer’s solvency while consultation is ongoing. It is possible that an employment tribunal would agree that the impact of the Covid-19 crisis on a business amounted to “special circumstances”, but this is not guaranteed. We suggest you consult your Make UK adviser if you are considering this.

(While the Government guidance indicates that if sufficient numbers of staff are involved, it may be necessary to engage collective consultation processes, in our view, it should not be necessary for an employer to initiate collective consultation when first proposing to put employees on furlough leave, unless the employer anticipates that 20 or more employees are likely to refuse – and the consequence for those employees who refuse would be that they are made redundant. Furlough is likely to be an attractive option for most employees, so employers would be unlikely to anticipate 20+ refusals at the outset).

13. How do you calculate pay for a furloughed employee and what can you claim under the Scheme? 

Employers will receive a grant from HMRC to cover the lower of 80% of an employee’s regular wage or £2,500 per month, plus the associated Employer National Insurance Contributions (ENICs) and minimum automatic enrolment employer pension contributions on that subsidised wage. 

For full-time and part-time salaried employees (i.e. those whose pay does not vary), the employee’s actual salary before tax, as of 28 February should be used to calculate the 80%.

For employees with variable pay, if the employee has been employed for a full twelve months prior to the claim, the employer can claim for the higher of either:
  • the same month’s earnings from the previous year; or
  • average monthly earnings from the 2019-20 tax year.

If the employee has been employed for less than a year, the employer can claim for an average of their monthly earnings since they started work.

If the employee only started work in February 2020, the employer should claim based on their pro-rata earnings so far.

There is some inconsistency between the Government guidance for employers and employees in relation to the inclusion of fees, commission and bonuses in variable pay calculations. Reading both sets of guidance together, however, it appears that fees, commission and bonuses should not be included in the calculation of furlough pay, for either salaried employees or those with variable pay.

As for overtime pay, since the government guidance for employers draws a distinction between “salaried employees” and “employees whose pay varies”, we assume that salaried employees are only those whose pay does not vary at all, i.e. they do not receive any overtime pay in any event. By contrast, if an employee has a base salary for their normal hours but also gets overtime pay if they work in excess of their normal hours, they would be treated as a variable pay employee. For employees with variable pay, we assume that overtime pay would be included given that the calculation is based on average earnings, and the guidance does not state that it is excluded, but we are seeking clarification from the Government.

Once the employer has worked out how much of an employee’s salary they can claim for, they will then need to work out the amount of ENICs and minimum automatic enrolment employer pension contributions they are entitled to claim. The Government has said that it will issue more guidance on how employers should calculate their claims for ENICs and minimum automatic enrolment employer pension contributions, before the scheme goes live.

While the Scheme will cover minimum automatic enrolment employer pension contributions on the employee’s subsidised wage, it will not cover any voluntary automatic enrolment contributions above the minimum mandatory employer contribution of 3% of income above the lower limit of qualifying earnings (which is £512 per month until 5 April and will be £520 per month from 6 April 2020 onwards), or any additional contractual employer pension contributions. This means that employers that have made a contractual commitment to employees to pay employer pension contributions at a rate that is higher than the minimum automatic enrolment rate will have to continue to fund the additional amount themselves (although this will be calculated as a percentage of the employee’s actual pay while on furlough leave).

Note also that while an employer can choose to top up an employee’s salary beyond the 80%, it is not obliged to do so under the Scheme and will not receive any contributions from HMRC to cover the costs of such a top up. 

14. What will be deducted from the furlough payment before it is paid to the employee?

While on furlough, the employee’s wage will be subject to usual income tax and other deductions. Employees will also pay automatic enrolment contributions on qualifying earnings, unless they have chosen to opt-out or to cease saving into a workplace pension scheme.

What about ENICs and employer pension contributions? The employer remains liable for these costs but, as noted above, the total grant they receive from HMRC will include an amount in respect of the ENICs and minimum automatic enrolment employer pension contributions on the employee’s subsidised wage.  

15. What is the interplay between furlough leave and the National Living Wage / National Minimum Wage?  

The guidance confirms that furloughed workers, who are not working, must be paid the lower of 80% of their salary or £2,500 even if, based on their usual working hours, this would be below National Living Wage (NLW)/National Minimum Wage (NMW). This is because employees are only entitled to the NLW/ NMW for the hours they are working.

However, if workers are required to undertake training whilst they are furloughed, then they must be paid at least the NLW/NMW for the time spent training, even if this is more than the 80% of their wage that will be subsidised – see question 18, below. 

16. How long does furlough leave last? Can you furlough employees multiple times? And can you rotate employees between periods of furlough and periods of work?

As noted above, the guidance for employers provides that furlough leave must be for a minimum of three weeks. The guidance for employees expands on this slightly, noting that an employer can place an employee on furlough more than once, and one period can follow straight after an existing furlough period, while the Scheme is open. (The Government has stated that the Scheme will be open for at least 3 months (i.e. to at least the end of May 2020) but that it will be extended if necessary.)

Some employers are considering rotating groups of employees on furlough leave – for example, placing half of the workforce on furlough for three weeks while the other half works, then switching the groups over. However, there is some uncertainty around whether such employees would be covered by the Scheme. When the Scheme was originally announced it was stated to be aimed at protecting employees who would otherwise have been made redundant/laid off, although the guidance published on 26 March does not specifically refer to any such requirement. In addition, one of the collateral potential benefits of furlough leave is that it will help to keep employees at home, thus reducing the spread of the virus. Rotating groups of employees in and out of the workplace risks reducing that benefit, unless perhaps the workplace is deep-cleaned in between rotations. The potential to rotate groups of employees between periods of work and furlough leave is understandably appealing to employers from a fairness perspective, however, and we are therefore seeking clarification from the Government as to whether this sort of arrangement is permissible under the Scheme.

It is also not clear what happens if circumstances change during furlough, e.g. if a furloughed employee were to fall ill during the period of furlough leave, we do not yet know whether they would remain furloughed or would switch to sick leave. This is another point on which we are seeking further information from the Government.

17. Can employees work elsewhere whilst on furlough leave?   

An employee cannot undertake any work for you whilst they are on furlough leave. An employee who has more than one job can continue to work for and be paid by their second employer. They can be furloughed for each job, but each job is separate, and the furlough pay cap applies to each employer individually. 

The Government has not expressly confirmed whether an employee is permitted to undertake new paid work for another organisation or on their own account during furlough leave. We therefore do not have clarity on whether them doing so would affect your entitlement to claim 80% of their pay from the Government under the Scheme. The Make UK template furlough letter provides that an employee who undertakes new paid work during furlough leave cannot do so without the employer’s permission. If they do, our template furlough letter provides that they will be subject to disciplinary action and may be required to repay any furlough pay. Note that if the employer’s ability to reclaim the employee’s pay from Government is not affected, then the requirement for the employee to repay such sums to the employer would probably be an unenforceable penalty clause, but it may be a useful deterrent against employees undertaking additional paid work.

18. Can employees undertake training at home whilst on furlough leave?

Yes. Furloughed employees can undertake training so long as this does not involve providing services to or generating revenue for or on behalf of the employer. However, if employees are required to undertake training whilst they are furloughed, for instance, if they are required to complete online training courses, then they must be paid at least the NLW/NMW for the time spent training, even if this is more than the 80% of their wage that will be subsidised.  

19. Can employees undertake voluntary work whilst on furlough leave?

Yes. Furloughed employees can undertake voluntary work while they are on furlough leave. However, you may wish to remind them to follow Government guidance on social distancing and self-isolation, as well as adhering to any updated or subsequent guidance on a full lock-down.

20. What happens at the end of furlough leave?

Furlough leave may end either because the Scheme has ended, because an employee no longer meets the criteria under the Scheme, or because you have work for the employee to do and so ask them to return to work (whether or not at home). The Government guidance does not specify the amount of notice required to end furlough leave, but we suggest employers give as much notice as they can.

Since terms and conditions other than those relating to salary and the requirement to work subsist during furlough leave, employees will be entitled to return to the same job on the same terms and conditions as before they started furlough leave – unless the Government provides any guidance to the contrary or unless the employee agreed to changes to terms and conditions at the same time as agreeing to furlough leave. 

If once the Scheme comes to an end a business is still experiencing reduced work and/or closure of the workplace is necessary, the redundancy option will still be open to employers. Our template letter (see question 22 below) therefore reassures employees that when furlough leave ends it is hoped that the business will be in a position where the employee can return to work – but if this is not possible, the employer will consult with the employee at the relevant time.

21. What will you need to make a claim?

The guidance states that to claim, you will need:
  • your ePAYE reference number
  • the number of employees being furloughed
  • the claim period (start and end date)
  • amount claimed (per the minimum length of furloughing of 3 weeks)
  • your UK bank account number and sort code
  • your contact name
  • your phone number

You will need to calculate the amount you are claiming. HMRC will retain the right to retrospectively audit all aspects of your claim.

It therefore does not appear that you will have to provide evidence of the need to furlough the employee when you make the claim. It is advisable, however, to keep a record of the circumstances that resulted in the furlough in case required in the future. You should also keep a record of your communications with the employee confirming their furlough and a record of their agreement to this. 

22. What documents are needed to put an employee on furlough leave?

We have produced a template letter for employers to use when seeking to put employees on furlough leave under the Scheme. This letter is based on the official guidance available as at 27 March and we may update it if further details of the Scheme become available. 
When using this letter, please note that wording in square brackets will require tailoring to reflect your company’s approach. We have also included some brief drafting notes in red text for your information, which should be removed prior to sending this letter to an employee.

23. What information don’t we yet know?

We are continuing to ask for further details from Government on aspects that are currently unclear. Our questions include (but are by no means limited to):

  • The guidance states that furlough leave must be for a minimum of three weeks. Can this be interrupted, e.g. if another employee who is still working falls ill and the employer needs a furloughed employee to return to cover the absence?
  • Is it possible for an employer to rotate groups of employees on furlough leave, e.g. half of the workforce on furlough for three weeks while the other half works, then switching the groups over? (See question 16, above, for our initial view on this issue.)
  • Can employers require employees to take holiday while they are on furlough leave (to coincide with an annual shutdown, and/or to avoid employers being faced with large numbers of employees wanting to take holiday after the COVID-19 crisis has passed)? If they can, will this simply be done by the employer giving notice in the normal way in accordance with the Working Time Regulations? Can a furloughed employee ask to take holiday while on furlough leave? And in both cases, will furlough pay count towards holiday pay and will the employer be required to make up the balance?
  • Can employers furlough employees who refuse to come to work, but who are not vulnerable, shielding, or otherwise required to self-isolate, where there is still work for them to do?
  • If an employee is already on furlough leave, would they remain furloughed if they became unwell, or needed to self-isolate in accordance with government guidance? 
  • The guidance states that an employee who is on unpaid leave cannot be furloughed, unless they were placed on unpaid leave after 28 February. Does this restriction apply to all types of unpaid leave, including the unpaid part of maternity leave, unpaid parental leave, etc. or only to unpaid lay-off? 
  • For employees who receive enhanced contractual maternity pay, the guidance states that this is included as wage costs that employers can claim through the Scheme. How does this work? Does it mean that employees will be on both maternity leave and furlough leave at the same time?  
  • Will the furlough rules prevent an individual from getting a new job whilst they are furloughed? 
    Will an employee be able to ask to be made redundant rather than furloughed and, if so, can employers refuse such requests?

Entitlement to pay (sickness, self-isolation, refusal to come to work)

1. If employees self-isolate, are they entitled to be paid?

Where an employee self-isolates because they have been instructed to do so by either their doctor or NHS 111, or on the basis of Government advice, they will be entitled to receive statutory sick pay (SSP) (and, if relevant, contractual sick pay – see further question 6, below), as they will have been deemed to be incapable of work. 
 
Note that Government advice issued on 16 March provides that individuals who have a high temperature or a new, continuous cough should self-isolate, as should people who live with them, even if they have no symptoms – see the Government guidance for details of how this works. 

People do not need to see their doctor or call NHS 111 unless their symptoms are severe, but can access advice and information via NHS 111’s online service. Regulations came into force on 13 March confirming that individuals who self-isolate on government advice will be deemed incapable of work for the purposes of SSP, including those who have no symptoms.

Government guidance to business has suggested that employers “use their discretion” when requiring written evidence of incapacity for work in these unprecedented circumstances. From Friday 20 March onwards, those who have Covid-19 or who are advised to self-isolate will be able to obtain an “isolation note” by visiting NHS 111 online and completing an online form, rather than visiting a doctor. 

This replaces the usual need to provide a ‘fit note’ after seven days of sickness absence. The Government has also confirmed that a GP fit note will not be required as evidence for eligible employers to be able to reclaim Covid-19-related SSP from the Government (see the FAQs on ‘Financial support for Business’ below). 

Government guidance on ‘shielding’ for extremely vulnerable individuals who are most at risk of suffering severe and life-threatening symptoms if they contract Covid-19 was issued on 21 March. The NHS is sending letters directly to 1.5 million people who fall into this particularly vulnerable category, advising them to isolate themselves at home for at least 12 weeks from the date they receive their letter. It is our understanding that these people would also be deemed incapable of work and therefore entitled to receive SSP (and, if relevant, contractual sick pay). However, the latest Government guidance on the Coronavirus Job Retention Scheme indicates that people who are shielding can be placed on furlough leave. This is likely to be more advantageous for the employee and employer in terms of pay. See the section ‘Furlough under the Coronavirus Job Retention Scheme’ for more information. We discuss vulnerable individuals in more detail at question 3(a) below. 

If, however, an employee chooses to self-isolate without following an instruction from a doctor or NHS 111 or government advice requiring them to do so, they may not be entitled to any sick pay (see further guidance in question 3, below).

2. Is SSP now payable from the first day of absence?

The proposal to make SSP payable from the first day of absence for those with Covid-19, or those who are self-isolating on government advice, was announced by the Prime Minister at the beginning of March, but at the time of writing the legislation to bring this into effect had not yet been passed. 
However, the legislation is expected to be passed imminently and we understand from guidance issued by the Department for Work and Pensions that, when it does come into force, it is intended to apply retrospectively from 13 March. Accordingly, we would now advise employers to pay SSP from an employee’s first day of Covid-19-related absence
 

3. What if an employee does not have symptoms, but wishes to stay away from work because they are worried about getting Covid-19?

Employers may face a scenario where an employee shows no symptoms of Covid-19, and is not in one of the groups that has been advised to self-isolate (see above), but wishes to stay away from work because they are worried about being infected. 

Enhanced 'stay at home' guidance issued by the Government on 23 March stated that all employees who can do so must work from home where possible. Accordingly, employers should take every possible step to facilitate this for all employees whose role is such that they can work effectively from home. Employees who work from home are entitled to their normal pay during this time.

Employees who cannot work from home are permitted to leave home to attend work. As noted above in the ‘Impact of enhanced stay at home guidance’ section, employers whose business remains open can require employees who can’t work from home to come in to the workplace. However, where an employee has genuine concerns, the employer should listen to them and try to accommodate them where possible. Employers have a duty to take reasonable steps to provide a safe working environment and the enhanced ‘stay at home’ guidance emphasises the importance of following social distancing guidelines in the workplace. 

Employers also have an obligation to make reasonable adjustments under the Equality Act 2010 where someone has a disability.

If an employee remains unwilling to come in to work because they are scared of being infected (i.e. they are not required to self-isolate on medical or government advice), it is arguable that they will not be entitled to any pay (see question 1 above). In this scenario, the employee could be allowed to take a period of unpaid leave, or paid annual leave, if this is realistic taking into account the employee’s role and the operational needs of the business. 

That said, Government guidance for employers on sick pay states that ‘those who follow advice to stay at home and who cannot work as a result will be eligible for statutory sick pay (SSP), even if they are not themselves sick’. Based on this, an employee who does not wish to come into work and cannot work from home might seek to argue that they should be entitled to SSP (and contractual sick pay if applicable, although see further question 6, below) as they are following the enhanced ‘stay at home’ guidance

However, in our view, subject to a caveat for vulnerable groups and (possibly) those they live with (see 3(a) and 3(b) below), the guidance is not intended to have this effect. We are seeking clarification from the Government on this point as we are aware that there are differing views in this area.   

3(a) Is the position different for vulnerable employees?

One group of employees for whom it may be necessary for the employer to take a different approach is those who are at higher risk of developing severe coronavirus and/or may have compromised immunity such as those aged 70 or over, those who have an underlying condition (such as a respiratory condition, cardiovascular disease, or diabetes), or those who are pregnant. 

For such vulnerable employees (full list available here), current Government guidance is that they should be especially careful in following social distancing recommendations – so they may have particular concerns about attending work. 

Although these employees are not strictly being required to self-isolate, as noted above, Government guidance for employers on sick pay provides that ‘those who follow advice to stay at home and who cannot work as a result will be eligible for statutory sick pay (SSP), even if they are not themselves sick’. 

The guidance also specifies that employers ‘should use their discretion and respect the medical need to self-isolate in making decisions about sick pay’. In view of this guidance, it may be advisable for employers to pay SSP (and contractual sick pay, if applicable, although see further question 6, below) to employees who fall into a vulnerable category, need to remain at home in order to comply with social distancing advice and cannot work as a result. 

(Note, also see question 4, below, on special rules applicable to pregnant employees). 

It is worth noting that whereas an employee who is required to self-isolate because they or someone in their household have symptoms would usually only need to be away from the workplace for 7 or 14 days (as per the Government guidance), a vulnerable employee may need to self-isolate for a much longer period. This means that they are more likely to suffer financial hardship if they are paid only SSP. Accordingly, if they are eligible, it is likely to be more advantageous to place these employees on furlough leave. See the section ‘Furlough under the Coronavirus Job Retention Scheme’ for more information and discussion of whether such employees would be covered.

From a wellbeing and employee relations perspective, if they cannot furlough these employees, employers may want to continue to pay contractual sick pay, or indeed full pay. However, the adverse financial impact of Covid-19 means this is unlikely to be affordable for many employers (see further question 6, below, on contractual sick pay).

3(b) What about an employee who lives with a vulnerable person?

Another tricky scenario is where an employee is not vulnerable him/herself but lives in the same household as someone who is, and therefore wishes to stay away from work in order to avoid putting that vulnerable person at risk by returning home having had contact with other people in the workplace. 

The Government guidance doesn’t identify those who live with a vulnerable individual as having to take any particular precautions, so it is at least arguable that they would not be entitled to pay if they are unwilling to come to work and cannot work from home (as for other employees – see question 3 above). 

That said, refusing to pay an employee whose decision to remain at home is motivated by a desire to protect a vulnerable member of their household could seem a harsh stance for an employer to take. Indeed, ACAS guidance on Covid-19 and vulnerable individuals states that employers need to be especially careful and take extra steps for anyone in their workforce who is at increased risk from coronavirus, including those who care for someone with a health condition that might put them at a greater risk. 

Until we receive further clarification from the Government, a cautious approach would be to treat an employee who lives with a vulnerable person (e.g. someone who is diabetic or pregnant) as if they were also vulnerable and pay accordingly (see question 3(a), above). Where an employee lives with someone who is so vulnerable that they are covered by the Government guidance on ‘shielding’ (e.g. someone who has cancer and is undergoing active chemotherapy, or who has received an organ transplant), there is an even stronger incentive for the employer to treat the employee as if they were also vulnerable and pay accordingly (see question 3(a), above). However, if they are eligible, it is likely to be more advantageous to place these employees on furlough leave. See the section ‘Furlough under the Coronavirus Job Retention Scheme’ for more information.

Keeping abreast of evolving Government advice on Covid-19 is important for any employer who is deciding what approach to take in relation to an employee who is not willing to come to work, as the guidance may change further in the coming days or weeks.

4. What is the position for pregnant employees – should they still attend work?

As noted above, Government guidance is that vulnerable people, including pregnant women, should be especially careful in following social distancing recommendations, and this means that such individuals may have particular concerns about attending work. In addition, in respect of pregnant employees, employers are under a specific legal obligation to: 
  • assess workplace risks;
  • alter the employee’s working conditions or hours of work to avoid any significant risk;
  • where such alteration is not reasonable, or would not remove the risk, offer suitable alternative work on terms that are not substantially less favourable; and 
  • where suitable alternative work is not available, or the employee reasonably refuses it, to medically suspend the employee on full pay. 
With this in mind, as the Covid-19 situation is still evolving, it would be advisable for employers to carry out a risk assessment for all pregnant women, to identify the risks and consider what measures can be put in place to protect them.

For those who can do so, the simplest course would be to agree with the pregnant employee that she should work from home for the time being – this alteration of working conditions would remove any risks associated with Covid-19 in the workplace and would be in accordance with the enhanced ‘stay at home’ guidance.

For employees who can’t work at home, where the risk assessment identifies that work is not safe, if there are no other alterations to working conditions or hours, or suitable alternative work that would remove the risks relating to Covid-19 in the workplace, then the employer should medically suspend the employee on full pay.  

If an employer’s risk assessment concludes that work is, in fact, safe for a pregnant employee, but she refuses to attend work because of concerns about Covid-19 in the workplace, the employer should treat the employee as they do other employees who fall into the vulnerable category (see question 3 (a), above). However, if she is eligible, it is likely to be more advantageous to place such an employee on furlough leave. See the section ‘Furlough under the Coronavirus Job Retention Scheme’ for more information.

5. What should we pay an employee who has symptoms (new continuous cough, or high temperature) is refusing to self-isolate and insists they are fit for work?

As noted above, the enhanced ‘stay at home’ guidance issued on 23 March states that all employees should work from home where possible. 
Accordingly, any employee whose role is such that they can work effectively from home should do so provided they are well enough and should be paid their normal pay during this time. 

In view of the employer’s duty to protect the health and safety of all staff, if an employee who is unable to work from home presented at work displaying symptoms that could potentially indicate they had Covid-19, the employer should send the employee home to self-isolate.

If it is not feasible for the employee to work from home, in view of the new regulations providing for individuals who self-isolate on government advice to be deemed incapable of work (see question 1, above), we consider that the employer could treat the employee as being on sick leave. 

Accordingly, the employer would pay the employee SSP (or contractual sick pay, if applicable, although see further question 6, below).   

6. Must employers pay contractual sick pay to employees who are self-isolating?

Many employers operate contractual sick pay schemes that provide full pay for a specified period of sickness absence. From a wellbeing and employee relations perspective, employers would want to continue to provide contractual sick pay throughout the Covid-19 pandemic. 

However, employers are understandably concerned about the cost of maintaining their contractual sick pay schemes in view of the sheer number of employees who are likely to have to take time off sick as a result of Covid-19, whether because they have symptoms or because they are otherwise advised to self-isolate (e.g. because someone in their household has symptoms, or they fall into a vulnerable category). 

For employers who feel that they cannot maintain contractual sick pay and are looking for a way to avoid having to do this, it might be possible to argue that, while the SSP provisions have been extended to provide an entitlement to pay for those who are ‘deemed’ incapable of work, even if they are not actually ill, a contractual sick pay scheme is only applicable to employees who are actually unwell. 

However, this will depend on the precise wording of the contractual sick pay scheme and it is uncertain how such an argument would be received by a court or tribunal.
There is also a practical issue with restricting the payment of contractual sick pay to employees who are actually ill as, with many GP surgeries now closing their doors and offering only telephone appointments for urgent cases, it is not clear how employees will be able to obtain evidence of their sickness to demonstrate their eligibility for contractual sick pay.

Another point to bear in mind is the potential indirect discrimination risk that may arise in this scenario. An employer’s practice of only paying contractual sick pay to those who are actually ill could put employees who fall into the vulnerable category (see question 3a, above) and are self-isolating due to a protected characteristic such as disability, or age at a particular disadvantage since they will need to self-isolate for a longer period and will therefore suffer more from the reduction in pay. Disabled employees may also be able to claim discrimination arising from disability.

Although indirect discrimination and discrimination arising from disability are potentially justifiable, they cannot be justified based on cost alone. 

The employer’s aim in restricting contractual sick pay to those who are actually unwell would be based primarily on cost and it may well be difficult to identify another factor to rely upon for the justification defence. 

That said, we recognise that these are extraordinary and difficult times, and it’s possible that tribunals may therefore be more sympathetic to such justification.

Employers may be able to avoid some of the above issues by placing employees onto furlough leave – see the section ‘Furlough under the Coronavirus Job Retention Scheme’ – although there is still a degree of uncertainty over exactly which employees are eligible. We are seeking further guidance from the Government on how employers should proceed given the unprecedented situation.  

Issues at the workplace

1. What if an employee ignores Covid-19-related hygiene rules?

If an employer has instructed its employees to follow certain rules to contain the virus and an employee fails to comply with those instructions, the employer will be entitled to take disciplinary action.

2. Can an employer restrict an employee’s personal travel and what if employees want to cancel their holidays?

Employment contracts do not generally include an express right for an employer to restrict an employee’s personal travel plans. But it may be reasonable for the employer to do this where restriction can be justified by the employer’s duty to protect the health of safety of its workforce, or those with whom the workforce comes into contact.

Note, however, that the latest Government and FCO advice warns against all but essential travel, and with more countries closing their borders and airlines cancelling flights, employees may find they are unable to travel in any event. 

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. 
If lots of employees cancel their annual leave in the Spring and early Summer because of Covid-19, employers may face high levels of demand for annual leave later in the year once the situation has (hopefully!) improved. 

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. However, on 27 March, the Government introduced regulations allowing 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 (four weeks being the minimum annual leave under the EU Working Time Directive). 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.

3. What if someone with Covid-19 comes to work? Do we need to close the workplace?

If someone with Covid-19 comes to work, you do not necessarily need to close your workplace. You should in these circumstances contact Public Health England, (or their equivalents outside England), to discuss the situation. PHE will then assess the risk and advise on any actions or precautions to take.

4. Can we require employees to have their temperature tested before allowing them into the workplace?

In order to avoid exposing their workforce to Covid-19, employers may wish to require employees to undergo tests to check they do not have the virus before allowing them into work. It is unlikely that tests for Covid-19 itself would be available to employers, even via a private occupational health service. 

However, testing an employee’s temperature could offer a simple indicator of whether the employee might have the virus (and even if they do not, those who have a high temperature should self-isolate according to the Government guidance). 

That said, temperature testing is not fool-proof, as an employee may have taken paracetamol before coming to work, which could have lowered their temperature.

Ordinarily, an employer would only be able to require an employee to undergo any form of medical test if there is an express provision within the employee's contract (or sickness absence policy) providing for this. 

However, in the unprecedented circumstances of the Covid-19 pandemic, requiring all staff to undergo temperature checks on arrival at work may be deemed reasonable to enable the employer to protect the health and safety of all employees, even if such testing is not provided for in contractual documentation. 

An employee’s refusal to have their temperature tested in these circumstances may warrant the employer sending them home without pay, and/or taking disciplinary action.

In addition, from a data protection perspective, the record of an employee’s temperature would arguably constitute special category data as it is data concerning health. Given this, it would be sensible for employers only to retain a record for those employees who have a high temperature and are therefore sent home to self-isolate. 

Employers should also take into account the data protection considerations identified in question 5, below, regarding who has access to the data, conducting a data protection impact assessment, updating data protection policy documents and providing appropriate privacy notice information.

5. What are the data protection implications if an employer needs to gather information on which of its employees are at a high risk in relation to Covid-19 for business continuity planning purposes?

Many employers will be putting together business continuity plans addressing how they will deal with the Covid-19 situation going forwards. 
 
This may include putting in place special measures to protect employees who would be particularly at risk if they were to contract the virus (e.g. those who have serious chronic medical conditions such as heart disease, asthma, diabetes, etc. and pregnant women). 
 
In order to ensure such measures are effective, employers will need to know which employees fall into these high risk categories, so may need to ask employees to declare if they do. 

From a data protection perspective, employers should consider the following:

  • In order to comply with the data minimisation principle, employers could simply ask employees to confirm if they fall into a high risk category, rather than asking them to confirm which specific medical condition they suffer from. 
  • Who needs access to this information? The data minimisation principle also means that employers should limit the disclosure of personal data to those who really need it. If an employer is simply making business continuity plans for the future, it would make sense to ask employees to inform HR if they fall into a high risk category, with HR instructed only to disclose that information to line managers in the event that the plans are subsequently implemented. By contrast, if the employer intends to implement protective measures for high risk employees immediately, it would make sense for employees to inform both their line manager and HR that they fall within a high risk group.
  • Even if the employer doesn’t require the disclosure of specific medical conditions, the cautious approach would be to treat employees’ confirmation that they fall into a high risk group as special category data (as it is still, arguably, data concerning health). Special category data is subject to additional protections under data protection law.
  • The employer should conduct a data protection impact assessment (DPIA) to assess the risks associated with the collection and processing of the data and identify whether there is any less invasive way to achieve its objectives. The DPIA should be recorded in writing and retained in order to demonstrate compliance with data protection law. 
  • The employer’s special category legal basis for processing this data would be that the processing is necessary to comply with a legal obligation in relation to employment and appropriate safeguards are in place. Here, the applicable legal obligation would be the employer’s duties to the employees concerned under health and safety law. As for appropriate safeguards, the employer should check whether it has an ‘appropriate policy document’ in place setting out its approach to processing special category data and whether this document is drafted broadly enough to encompass this type of processing or whether it requires updating.
  • Similarly, the employer should check that its employee privacy notice includes sufficient information on how, why and on what legal basis the employer processes employees’ health data and should provide supplementary privacy notice information if anything is lacking. Even if the employee privacy notice does include sufficient detail, as a matter of good practice, in the communication in which it asks employees to declare if they are in a high risk group, the employer should state its legal basis for processing this data and direct employees to the privacy notice for further information. 

6. What legal obligations should employers keep in mind when making decisions relating to Covid-19?

In addition to express and implied obligations in employment contracts, employers should be mindful of the following duties:

  • 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.

Covid-19 and childcare issues for employees

1. How should employers accommodate employees who cannot come to work because their child’s school has closed?

On 18 March, the Government announced that all schools would close after Friday 20 March, save that provision would be made to continue teaching for the children of key workers such as NHS staff, school staff and delivery drivers (see further question 2, below). This decision will inevitably have a significant impact on the workforce. 
 
Employers will therefore need to think carefully about whether home working is suitable if there are young children in the house; how much home-working they can accommodate; and what proportion of their workforce may need to take time out, and will need to work constructively with employees to find practical solutions.  
Following the Government advice on social distancing issued on 16 March, employees who are able to do so may already be working from home. Following school closures, such employees may be able to continue with home working. 

However, it may be impractical for those with very young children to continue working and those with older children who require less supervision may nonetheless need some flexibility on hours in order to work around their child’s demands on their time. Employees who are not able to work from home may need to take time off work to look after their children. 

Employees have a statutory right to a reasonable amount of unpaid time off to deal with an emergency involving a dependent. “Dependent” includes a spouse, partner, child or parent, or a person who lives with the employee (but not a lodger). 

The right to take emergency leave is a right to a ‘reasonable’ amount of time off. The amount of time is not fixed. It is intended to allow an employee to deal with an immediate problem and put other care arrangements in place. 

Following school closures, therefore, employees could take emergency time off to care for their children. Employees should inform their employer as soon as reasonably practicable of the reason for their absence and how long they expect to be away from work. 

It is not currently clear how long schools will remain closed, so it would not be reasonable for employees to simply stay off work on emergency leave until such time as schools re-open. 

However, it would be reasonable for them to take one or two days off to try to arrange alternative childcare. Note, though, that finding affordable alternative childcare in the current circumstances could be problematic. For example, employees are unlikely to be able to ask grandparents to take on caring responsibilities given the stringent social distancing advice for the over 70s. 

For longer term arrangements, both employers and employees need to be flexible. It might be that arrangements can be made for employees to work flexibly while schools remain closed, with staggered start and finish times or reduced hours to enable employees to drop off and collect their children from alternative care providers. 

Employers may need to consider making broader changes to shift patterns to facilitate this. If doing so, they should be mindful of the need to consult with employees and seek their agreement to any contractual changes, as well as the risks of imposing contractual changes without agreement. Make UK members can access guidance on changing terms and conditions in the resources section of our website.

If changes to employees’ working arrangements to fit around their childcare needs would not be feasible, employees could take paid annual leave, or up to four weeks’ unpaid parental leave per child per year. Alternatively, the employer may be able to agree with the employee that they should be placed on furlough leave – see the section ‘Furlough under the Coronavirus Job Retention Scheme’ for more information.

Note that if you subject an employee to detrimental treatment for taking emergency time off, or dismiss them or subsequently select them for redundancy because they took, or sought to take, emergency leave then they will be entitled to make a claim of detrimental treatment or unfair dismissal to an employment tribunal regardless of their length of service.   

2. Where can we find out which key workers will be able to continue to send their children to school?

Initial Government guidance to local authorities on maintaining educational provision identifies a list of sectors and roles that are considered critical to the Covid-19 response. The guidance emphasises that, if at all possible, children should be kept at home. 

However, it provides that the children of workers in the specified sectors/roles will be given priority for educational provision if it is not possible for them to be cared for safely at home. 

The list of critical sectors and roles is not especially detailed and describes quite broad groups of workers. 

Whether a particular employee’s role would be included is essentially a matter of judgment; the guidance advises employees who think they fall within the critical sectors to confirm with their employer that, based on their business continuity arrangements, their specific role is necessary for the continuation of an essential public service.

Parents to whom this applies and whose school is closed are advised to contact their local authority, who will seek to redirect them to a local school in their area that their child, or children, can attend.

3. What if an employee is looking after a child or other relative who has (or may have) the virus?

If an employee needs to look after a child or other relative who has (or may have) the virus, a short period of emergency time off may be appropriate to allow the employee to make arrangements for that person’s care. In practice, however, an employee may struggle to find someone else to care for a child/relative who has (or may have) the virus. 

If the employee needs to take time off over a longer-term, similar considerations will apply as in the school closure scenario at question 1, above. 

In addition, those who live with someone who has (or may have) the virus are required to self-isolate – see the Government guidance for details. If the employee is well and is able to perform their role at home, they should continue to work from home while self-isolating and the employer should continue to pay them as normal. 
If the employee cannot work from home, but is required to self-isolate because they are caring for a child/relative in their household who has (or may have) had the virus, then they would be deemed incapable of work and entitled to sick pay (see the section ‘Entitlement to pay (sickness, self-isolation, refusal to come to work)’, above).

Lay-off and short-time working

1. What if we need to temporarily close our business and send staff home, e.g. because of supply chain disruption, or reduced demand for products or services?

In this uncertain time, businesses may want to make a plan in case they need to close temporarily and a central part of that will be deciding how best to deal with staff. 
Today’s supply chains are increasingly global in nature and many are therefore vulnerable to potential disruption due to the coronavirus, e.g. if factories are located in countries operating lockdowns and are therefore unable to fulfil orders. 

If UK businesses are therefore unable to obtain parts in sufficient volume, they may need to consider closing some of their production facilities or reducing production – not because of the virus itself but because they will not have the parts they need to continue production at normal levels. 

Similarly, some businesses may find they need to consider closing or operating on reduced hours because with people self-isolating there is less demand than usual for their products or services.

In these circumstances, employers may need to consider temporarily laying off their employees, or putting them on short-time working. 

However, employers should be aware that temporarily laying employees off without pay, or cutting back their hours with a corresponding reduction in pay, is likely to be a breach of contract, unless the employment contract expressly permits it. 

Contractual clauses expressly permitting lay-off or short-time working are relatively rare in practice. 

Where they do exist, they may well be subject to conditions, such as a requirement for prior consultation, agreement with the union on the period of lay-off/reduced hours, or other mitigation measures. Even if a contractual clause does not impose such conditions, as a matter of good practice the employer should not seek to rely on it without first consulting with affected employees. 

Employers that impose a lay-off or short-time working without contractual authority to do so could potentially face claims for unlawful deductions from wages, breach of contract, or even constructive unfair dismissal. 

The risk of such claims can, however, be reduced if the employer consults all affected employees and seeks to agree with them the period and terms applicable to any lay-off or short-time working before implementation.

If an employee is already on sick leave when lay off/short-time working begins, whether because they are self-isolating or for another reason, then they cannot be on put on lay off or short time working at the same time.

It is also important to note that employees who are laid off or put on short-time working may be entitled to statutory guarantee payments, or to statutory redundancy pay if the lay-off/short-time working persists.

Employees will understandably be concerned about any temporary closure decision; good communications, which explain the reasons for the business closure and commit to keeping staff updated on a regular basis will therefore be key to reducing anxiety and maintaining good employee relations. 

Member companies that are considering implementing a lay-off or short-time working should first consult our guidance on lay-off and short-time working in response to Covid-19 and seek advice from their Make UK adviser. They should also consider whether they can, as an alternative, put employees on furlough leave under the Coronavirus Job Retention Scheme (see the section ‘Furlough under the Coronavirus Job Retention Scheme’, above).

2. What about if public health advice is to close businesses?

Currently, official public health advice from the Government has only recommended the closure of certain non-essential businesses (primarily the retail and leisure sectors) to prevent the spread of Covid-19 (see the section ‘Impact of enhanced stay at home guidance’, above). 

However, if the UK goes into a full lockdown similar to those in place in other countries, employers that are then required to close are likely to be able to rely on the Coronavirus Job Retention Scheme to cover at least part of their employees’ pay during such enforced closure (see the section ‘Furlough under the Coronavirus Job Retention Scheme’, above). 
 

Financial support for Business

Last updated 11.27am on 26/03/2020

1. What support for business was there for Statutory Sick Pay?

The government announced it will support small and medium sized businesses and employers to cope with the extra costs of paying Covid-19 related SSP by refunding eligible SSP costs. The eligibility criteria for the scheme are as follows:

  • The refund will be limited to two weeks per employee who is either ill or has been told to self-isolate because of Covid-19.

  • Employers with fewer than 250 employee will be eligible. The size of the employer will be determined by the number of people employed as of 28 February 2020.

  • Employers will be able to reclaim expenditure for any employee who has claimed SSP (according to new eligibility criteria) as a result of Covid-19

  • Employers should maintain records of staff absences, but will not require employees to provide a GP fit note

  • The eligible period for the scheme will commence from the day on which the regulations extending SSP to self-isolators come into force. (Note – those regulations came into force on 13 March)

While existing systems are not designed to facilitate such employer refunds for SSP, the government will work with employers over the coming months to set up a repayment mechanism for employers as soon as possible.

2. Are Business Rates being adjusted to help businesses cope with the impact of Covid-19?

The government had, prior to the budget announcement, already announced the Business Rates retail discount will be increased to 50% in 2020-21. In light of the potential impact that Covid-19 will have, further measures are being introduced by the government to mitigate business disruption:

  • To support small businesses affected by COVID-19 the government is increasing the Business Rates retail discount further to 100% for 2020-21.

  • The 100% relief will also be expanded to the leisure and hospitality sectors.

  • These temporary measures, taken together with existing Small Business Rates Relief, mean that around 900,000 properties, or 45% of all properties in England, will receive 100% business rates relief in 2020-21.

Local authorities will be fully compensated for these Business Rates measures so that their capacity to provide services will not be impacted by these measures.

Guidance for Local Authorities will be published by MHCLG by 20 March.

3. Is there any direct funding available for businesses for 2020-21 to mitigate the impact of Covid-19?

The government has announced that it recognises many small businesses pay little or no business rates because of the Small Business Rate Relief (SBRR) scheme, so they have introduced grant funding for those SBRR eligible businesses so that they too can avail of government assistance:

  • To support those businesses, the government will provide £2.2 billion of funding to be distributed by Local Authorities in England.

  • This will provide £3,000 to around 700,000 business currently eligible for SBRR or Rural Rate Relief, to help meet their ongoing business costs.

  • For a property with a rateable value of £12,000, this is one-quarter of their rateable value, or comparable to 3 months of rent.

  • If you have a property with a rateable value of less than £15,000 then you will be entitled to a grant of £10,000, whether or not you are entitled to small business rates relief or rural rate relieve.

  • If you have a property with a rateable value of between £14,999 and £51,000 then you will be entitled to a cash grant of £25,000.

Most properties that are eligible for SBRR will have a lower rateable value, and so this will represent an even greater proportion of their annual rent.

4. What if my business has outstanding tax liabilities that I may not be able to pay in due time because of Covid-19 related business disruption?

The government is setting out measures that will seek to enable those businesses and self-employed individuals with outstanding tax liabilities to receive support with their tax affairs:

  • HMRC has set up a dedicated COVID-19 helpline (0800 0159 559) to help those in need, and they may be able to agree a bespoke Time to Pay arrangements.

  • Time to Pay arrangements were previously used in response to flooding and the financial crisis, giving businesses a time-limited deferral period on HMRC liabilities owed and a pre-agreed time period to pay these back.

  • To ensure ongoing support, HMRC have made a further 2,000 experienced call handlers available to support firms when needed.

HMRC will also waive late payment penalties and interest where a business experiences administrative difficulties contacting HMRC or paying taxes due to COVID-19.

5. My business is struggling to access finance due to Covid-19’s impact on lender confidence, is there any new government help with financing?

The government will launch a new, temporary Coronavirus Business Interruption Loan Scheme, delivered by the British Business Bank, to support businesses to access bank lending and overdrafts:

  • The government will provide lenders with a guarantee of 80% on each loan (subject to a per lender cap on claims) to give lenders further confidence in continuing to provide finance to SMEs.

  • The government will not charge businesses or banks for this guarantee, and the scheme will support loans of up to £5m in value. The first 12 months of these loans will be interest-free, as the Government will cover these payments.

  • The Scheme will support loans of up to £1.2 million in value.

  • This new guarantee will initially support up to £1 billion of lending on top of current support offered through the British Business Bank.
    Insurance

6. Can I claim on my company’s insurance for any disruption and/or loss of earnings as a result of Covid-19?

We understand that some companies have been told by their insurance companies that they have a list of diseases for which they will pay out insurance, with some companies not adding Covid-19 to this list.

We are seeking clarification with Government on this issue.

If you have not found an answer to your question here please contact [email protected][email protected] for further assistance.

News / Coronavirus / Make UK