Anthony Collins Solicitors are presenting a series of podcasts with employees to raise awareness about disabilities around the firm.
The purpose of this directory is to bring current guidance and information into one place. The directory will be updated when changes are published and a list of updates noted at the end of the document.
- Furlough and holidays
- Flexible Furlough Scheme and holidays
- Redundancy and furlough
- Consent and furlough
- Full-time furlough agreements
- Flexible furlough agreements
- Shielding and furlough
- Public funding and furlough
- Selection for furlough
- SSP and furlough
- Employees “with caring responsibilities” and furlough
- Other leave and furlough
- Calculation of pay and furlough
- NMW and furlough
- Furlough and other statutory payments
|Clinically vulnerable||The Government has defined this group to include anyone over 70 (regardless of any health conditions), pregnant women and those with certain underlying health conditions. They are deemed more susceptible to catching coronavirus and so must take care to limit contact with those outside their homes.|
|Coronavirus Job Retention Scheme (CJRS)||A temporary scheme set up by the Government that allows employers to receive financial support for employees whose jobs may no longer exist or who can no longer work because of the pandemic.|
|Emergency Volunteer Leave||A right given under the Coronavirus Act 2020 that allows employees and workers to take emergency volunteer leave to assist essential health and social care services during the coronavirus pandemic.|
|First Treasury Direction||This Direction was published 15 April 2020 by the Treasury and related to all CJRS claims made after that date and until the publication of the Second Treasury Direction.|
|Flexible Furlough Scheme||From 1 July 2020, employees can remain on furlough for part of their working time and return to work for the remainder of their working time. Employers can claim under the CJRS for furloughed time.|
|Furlough||This is where an employee has been put on a temporary period of leave under CJRS during which they are not required to work, and the employer can recover a proportion of the employee’s wage through the CJRS.|
|Key workers||These are workers, as defined by the Government whose jobs are essential to public health and safety or provide an essential service.|
|Second Treasury Direction||This Direction was published by the Treasury on 22 May 2020 and amended some of the measures in the First Direction. All CJRS claims made on or after 22 May will be decided according to the Second Direction or claims submitted before that date but are compliant with it.|
|Self-isolation||This is limiting contact with individuals by staying at home and not leaving the house for any reason.|
|Shielding||A group of people in the UK who are considered “clinically extremely vulnerable” have been asked by their doctors to shield; they are asked to remain in their homes with no contact with anyone outside the household and where possible use social distancing with those in the household.|
|Social distancing||This is limiting the face-to-face contact you have with others and only making essential journeys.|
|Third Treasury Direction||This Direction was published by the Treasury on 26 June 2020. It is divided into two parts; the second outlines the details to the flexible furlough scheme effective from 1 July 2020.|
Statutory Sick Pay (SSP) is payable when an employee is incapable of work. One of the first issues the Government addressed as the pandemic took hold in the UK was whether SSP is payable when employees are not ill, so not incapable for work, but are self-isolating and so advised not to work in accordance with Public Health England guidelines. Ideally, such employees should work from home and be paid their normal wage or salary. This, however, is not always possible, especially with service delivery roles.
Starting with changes made on 13 March 2020, a person is now deemed incapable of work because they are self-isolating to prevent infection from Covid-19 if they are;
- Suffering from symptoms of the virus (however mild) and are staying at home for seven days from the day the symptoms started;
- Living with someone who is self-isolating because of symptoms of the virus and are staying at home for fourteen days (from the day the symptoms started); or
- Already self-isolating in accordance with the second bullet, then develop the symptoms of the virus and have to stay at home for a further seven days starting with the day the symptoms started.
- Shielding because they are vulnerable and have received notification from the Government to that effect (this is only applicable from 16 April 2020 until 31 July 2020).
In any of these situations, the individual would, subject to other eligibility criteria, be entitled to SSP. In addition, following changes made on 28 March and backdated to 13 March 2020, SSP is payable from day one of the absence and not day four, where the absence is due to coronavirus.
- Employees who are shielding will not be able to claim SSP after 31 July 2020 on the grounds that they are extremely clinically vulnerable. This entitlement will fall away.
Evidence of sickness is required after seven days of absence, and this is, of course, problematic where GP surgeries/hospitals cannot cope with the extra workload of signing Fit Notes, and self-isolation precludes leaving the house in any event. To address this, the Government has introduced Self-Isolation Notes. This is an online service whereby employees can complete the relevant details, and print a note confirming their name, date-of-birth, reason for isolation and date from which the note is effective. For those employees who may not have access to a computer, a friend or someone else can carry it out on their behalf.
Clearly, these notes are reliant on a high level of trust from employees to complete the information accurately and truthfully.
On 6 July 2020, SSP Regulations were updated so that employees are, subject to eligibility criteria, entitled to SSP because they are in a bubble with another household and someone within that bubble has COVID-19 symptoms. This will apply to employees who live on their own or single parents with children under 18 who have formed a “bubble” with one other household.
On 28 May 2020, entitlement to SSP was extended again to take account of the Track and Trace Scheme. Employees who qualify for SSP and who have been notified under the Track and Trace Scheme that they have been in contact with someone who has Covid-19, will be entitled to SSP while self-isolating under the Scheme, even if not symptomatic. The period of self-isolation is 14 days and the notification will come in the form of a text, email or phone call. Employers will probably want confirmation of this notification in some way which may be more problematic if it is a phone call. Individuals who share a house with someone who has been notified will not need to self-isolate as well but should practise social distancing as far as possible within the home. Clearly, if that notified individual shows symptoms and contracts Covid-19, other individuals within the house will need to self-isolate in accordance with NHS guidance introduced at the start of the pandemic.
Contractual sick pay is, of course, dependent on the contents of the contract or policy. Where the wording in the contract or policy closely follows the SSP Regulations, then an employee might be entitled to contractual sick pay even if they are asymptomatic and have self-isolated. Where the wording doesn’t follow the regulations, then it seems less likely that the employee would be entitled to contractual sick pay. Should they wish to do so, employers can use their discretion and pay contractual sick pay, even when the employee is not entitled. We suggest that, where this happens, it is made clear this exercise of discretion is not a change to the policy or contract.
From 10 July 2020, the requirement to self-isolate for 14 days when returning to the UK from a long list of countries was lifted. The list can be found here and includes the majority of European holiday destinations with the exception of Portugal. The only requirement appears to be that all passengers (apart from those on a small list of exemptions) will be required to provide contact information on their arrival in the UK for the purpose of tracking any infection.
We would advise that employers request details of holiday destinations from employees prior to them taking holiday to confirm that they will not have to self-isolate on their return. Some employees may feel that this is information they do not wish to give. However, an employer, given its duty under Health and Safety requirements, is entitled to ask for this information to ensure the safety of its employees from infection and a COVID-secure workplace.
This welcome lifting of the quarantine requirement addresses the issue of pay during the 14 day self-isolation period for many employees. For employees who are travelling to countries not within the list, they will still need self-isolate on their return. For employees who can work from home during this period, they will continue to be paid their normal salary. For those employees who are unable to work from home, the situation is more difficult. The Statutory Sick Pay (SSP) rules have not been amended so these employees will not be entitled to SSP on the current interpretation of the rules. They would need to fall back on any contractual sick pay provision or taking further holiday or unpaid leave. It is important to have this conversation with any employee prior to them leaving for a destination not on the list noted above to ensure that this issue is addressed.
Important to note is that this applies to England only; the devolved administrations of Northern Ireland, Wales and Scotland will publish their own specific guidance.
This scheme, first announced by the Government on 20 March 2020, introduced the word “furlough” to our vernacular; a word that is now used as if we have known about it forever! At its core, the CJRS seeks to assist employers in avoiding mass redundancies, because of the economic effect of the pandemic, by providing a grant so that these employees can continue to be paid 80% of their wages while not working. Following the Government’s announcement on 29 May 2020, the current scheme will be closed to new entrants from 30 June 2020. The revised scheme, which adds extra flexibility and requires additional funding from the employer will start on 1 July 2020 and will continue until 31 October 2020. Further details on this Flexible Furlough Scheme, are outlined below. The essential aspects of the scheme until 30 June 2020 are as follows;
- Employers can place employees on furlough leave (a period of paid absence) and reclaim 80% (up to a maximum of £2,500) of the employees’ wage back from the HMRC in addition to any national insurance contributions and minimum automatic enrolment pension contributions.
- Any new entrants to the scheme had to be placed on furlough by 10 June 2020 so as to allow a three-week claim period prior to the closing of the scheme to new entrants.
- Any organisation can claim provided they had a PAYE scheme in place at 19 March 2020, but public bodies and those in receipt of public funding for staff costs have some restriction on when the scheme can be used, as detailed below.
- All employees are eligible provided they are on PAYE (this includes zero-hour workers) and were employed on or before 19 March 2020.
- Whilst on furlough leave, an employee will accrue holiday but cannot undertake any work, volunteering or training that would provide services for or profit their employer in any way.
- The minimum period of furlough leave is three weeks; an employee can be furloughed multiple times.
- Employees who were made redundant or stopped working for whatever reason post 28 February 2020, can be re-employed and put on furlough even if they are not re-employed until after 19 March 2020 provided they were on PAYE on 28 February 2020 and an RTI submission was made to the HMRC in respect of that employee on or to 28 February 2020.
- The online reclaiming programme for employers was launched 20 April 2020.
The essential aspects of the scheme from 1 July 2020 until 31 October 2020 are as follows:
- Post 1 July, employers can furlough employees on a flexible basis “for any amount of time and any shift pattern” whilst still being able to claim under the CJRS for hours not worked. This is provided that these employees were furloughed for three consecutive weeks at any time between 1 March 2020 and 30 June 2020. Employers must pay the employee for the hours worked but the non-working hours can be reclaimed under the CJRS.
- Post 1 July, employers can only make claims for employees who have been previously furloughed for a minimum of three weeks at any time between 1 March and 30 June 2020. The last date for “enrolling” employees on the CJRS was 10 June 2020.
- The only exemption to this is for employees returning from statutory parental leave (maternity, paternity, adoption, shared parental leave and parental bereavement leave) and army reservists returning to civilian work. Employees who started their statutory parental leave period before 10 June and returned after 10 June and were on their employer’s payroll on or before 19 March 2020 can still be furloughed after 10 June 2020 for the first time.
- Where necessary, employees who had been furloughed for three consecutive weeks before 1 July can still be fully furloughed after 1 July 2020, there is no requirement to flexibly furlough. The cost, however, to the employer will start to rise from 1 August 2020
- The number of furloughed employees an employer can claim for in any one single claim under the CJRS post 1 July cannot exceed the maximum number claimed in any one single claim between 1 March and 30 June 2020. For example, any employer who made claims in April, May and June of 20, 40 and 25 employees respectively cannot claim for any more than 40 employees in any one claim period from 1 July.
- Flexible furlough agreements can last for any period of time as the three-week minimum period has been removed.The minimum claim period is now seven calendar days.
- From 1 August 2020, employers will no longer be able to claim back furloughed employees’ national insurance contributions or their automatic enrolment pension contributions.
- From 1 September 2020, employers will be able to claim 70% of furloughed employees’ wages (subject to a cap of £2,187.50 pcm) under the CJRS. Employers are expected to top up the remaining 10% to 80% (and will continue to pay NICs and pension contributions as per 1 August change).
- From 1 August 2020, employers will be able to claim 60% of furloughed employees' wages (subject to a cap of £1,875 pcm) under the CRJS. Again, employers will be expected to top up the remaining 20% to 80% in addition to payment of NICs and pension contributions.
The three key guidance documents can be found here:
- Claim for wage costs through the coronavirus job retention scheme
- Check which employees you can put on furlough to use the coronavirus job retention scheme
- Claim for wages through the coronavirus job retention scheme.
You can also listen to the podcast recorded by the Employment and Pensions team discussing the essential aspects of the flexible furlough scheme.
The Government has released guidance on Holiday Entitlement and Pay During Coronavirus. It confirms that furloughed employees accrue holiday whilst on furlough and can take holiday without it breaking their furlough leave. Employers can request that employees take holiday whilst on furlough leave or refuse a request for leave. Employers must give the following notice:
- double the length of the holiday if the employer wishes to require a worker to take holiday on particular days;
- the length of the planned holiday if the employer wishes to cancel a worker’s holiday or require the worker not to take holiday on particular dates.
The Guidance does note that employers should, prior to requesting employees take holiday during furlough, “consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday”. This is suitably vague and arguably unrealistic in the current climate. The Guidance is not legally binding, and we will be unsure for some time how courts and tribunals will interpret this. For the moment, employers should continue to request employees take holiday if necessary and treat any cases where employees are unhappy with this request on a case by case basis.
In accordance with the Working Time Regulations 1998, holiday pay should be paid at an employee’s normal rate of pay. Therefore, where employees are furloughed at 80% of pay, employers will need to pay the additional 20%. This additional amount cannot be claimed back under the CJRS.
If employees work Bank Holidays then this will be included in furlough pay. However, if Bank Holidays are usually taken as leave, then these days will need to be topped up to 100% or holiday given in lieu.
On 1 July, the Government confirmed in its guidance that if an employee takes holiday whilst flexibly furloughed then any hours/days taken as holiday during that period will be counted as furloughed hours and not working hours. The guidance can be found here.
Example; An employee is flexibly furloughed and works Tuesday, Wednesday and Thursday but remains on furlough on Monday and Friday. If they then take two weeks’ leave at the start of August, their employer must pay them two weeks’ full pay, however, the employer can claim up to 80% (subject to the cap) of their two weeks’ salary from the CJRS. The claim is not limited to the four days they would have been flexibly furloughed during that two week period.
However, the guidance does state that employees should not be placed on furlough simply because they have booked holiday for that period and the employer wants to reclaim for 80% of the cost. It is unsure how the HMRC will police that although it may be obvious from the way the claim periods run and last only for fortnights at a time in peak holiday season.
The publication of the Third Treasury Direction threw into question whether employers can make employees redundant whilst on furlough and continue to claim under the CJRS for notice pay. At the time of writing, it is unclear whether this was the Treasury’s intention or not!
Government guidance, which remains unchanged, refers to making employees redundant whilst on furlough. As does the continuing guidance advising employers that shielding employees and those with caring responsibilities should be furloughed whether their roles are redundant or not.
We are hoping for clarification on this point. It is hard to believe that the Government would seek to intentionally change the purpose of the CJRS at this late stage; that kind of decision could be subject to judicial review. In the meantime, we would advise the following;
- Redundancy payments (neither statutory nor contractual) can be claimed under the CJRS
- Pay in lieu of notice sums cannot be claimed under the CJRS
- Notice pay may still be claimed under the CJRS (subject to the varying caps and employers’ contributions) but there is be a low risk that HMRC will request that this paid back by the employer in time. Given exchanges with the HMRC in the House of Commons and Twitter, we would say that is unlikely, but it is still a risk of which to be aware. We will keep you updated of further clarification.
The employer will determine which employees are furloughed and contact those employees to that effect. The issue of whether the employee needs to consent to be furloughed has recently been confirmed by the Second Treasury Direction of 22 May 2020. It has confirmed that employer and employee must agree to the employee ceasing work and there must be a written agreement by the employer (including electronic form) which specifies “the main terms and conditions upon which the employee will cease all work”. This agreement must be incorporated either expressly or implicitly into the employee’s contract and must be kept until at least 30 June 2025. The requirement for written consent by the employee has been removed.
Prior to this, there was some confusion as the First The Treasury Direction of 15 April 2020 stated that employers must have employees’ consent in writing for any period of furlough. The Government’s Guidance to employees did not confirm that written consent is required by furloughing employees. It states that “to be eligible for the grant employers must confirm in writing to their employee confirming that they have been furloughed. If this is done in a way that is consistent with employment law, that consent is valid for the purpose of claiming the CJRS”.
From a legal perspective, if an employer is not topping up the 80% paid by the Government, then failure to get consent exposes the employer to an unlawful deduction of wages claim.
Clearly, the best course of action is to have an employee’s signed furlough agreement on file. Retrospective permissions are not prohibited, and so employers could request consent after employees have been furloughed if they are concerned that their furlough process and the resulting paper trail will not be sufficient for HMRC scrutiny.
In accordance with the new guidance published, it appears that Employers must agree the flexible furlough arrangements with the employee and retain a copy of this written agreement. The employee guidance notes that the employer must “agree this [flexible furlough arrangements] with you”. This differs from full furlough agreements where the employee guidance notes that “this [furlough agreement] must be confirmed to you”. Practically speaking this makes sense; an employer will need to know that an employee is aware of which days/shifts they are required to work and has agreed to this pattern. Contrast this with a full-time furlough agreement where the requirement is simply not to attend work.
The HMRC have stated that the agreement of the employee does not need to be in writing, and this appears to contrast with the Government Guidance. We would advise, as best practice, to seek written agreement to any new flexible furlough agreement so as to ensure that it is clear what is being agreed and asked of both employee and employer.
The Government guidance for Employers, 20 April 2020 stated that employees who are shielding in line with public health guidance can be furloughed, and this has remained the same in subsequent guidance. This conflicted with the SSP Regulations published on 17 April 2020 together with the First Treasury Direction. The SSP Regulations state that shielding employees are deemed sick for the purposes of SSP and so should be paid under that scheme (see note above under sickness). The First Treasury Direction stated that employees who are on SSP could not be furloughed but must continue with the SSP scheme until that was exhausted. This issue has been clarified to an extent by the Second Treasury Direction, 27 May 2020, which applies to claims submitted on or after 22 May 2020 (or claims made before that date that would have complied with that direction). Employers and employees can now agree when to end a period of SSP and start a period of furlough even if the entitlement to SSP has not been exhausted.
The Government announced that shielding would be lifted and shielding employees could return to work from 1 August 2020 provided their workplace was COVID-secure. However, shielding employees can remain on furlough after 1 August 2020 if they are unable to work from home and cannot return to their workplace for whatever reason. Current guidance from the Government can be found here.
The Government has made it clear that it does not expect public sector organisations to use the Furlough scheme as their employees will continue to work in key worker roles. However, the question arises for non-public-sector employers where funding is received for staff costs. The underlying message from the Government is clear; there should be no double recovery, so an employer cannot receive monies from the public purse for the role and then for 80% of the role when it is furloughed. Where the funding is ring-fenced for specific staff costs and these roles are necessary to provide services to respond to the crisis, then these roles cannot be furloughed. In other cases, we consider it may still be possible to utilise the scheme.
The Government guidance on selection states that “Employers should discuss with their staff and make any changes to the employment contract by agreement. When employers are making decisions in relation to the process, including deciding who to offer furlough to, equality and discrimination laws will apply in the usual way.
In view of this we would advise the following;
- Ensure any criteria used to select furlough workers are clear, transparent and non-discriminatory.
- Be especially careful with selection where you cannot top-up the 80% of salary as any selection on potentially discriminatory grounds could result in a finding of less favourable treatment due to the deduction in pay.
- Before applying criteria, offer voluntary furlough leave to employees (although be aware that employees who you want to remain working might volunteer).
The guidance provides that where SSP is payable to an employee at the time they are placed on furlough, the furlough period will not start until the SSP period has ended. The First Treasury Direction stated that furlough could not start until eligibility for SSP had ended which was in direct contrast with the Government Guidance. The Second Treasury Direction (22 May 2020) has gone some way to resolve this issue Employers and employees can now agree to end a period of SSP in order to start furlough, even if the employee is still eligible for SSP.
Employees with “caring responsibilities” who cannot work because of these responsibilities can be furloughed. The responsibilities must arise out of the coronavirus crisis, and the Government uses the example of looking after children. This is extremely broad in its drafting. Key workers can still send children to school, so the need should only arise where the employee is not a key worker, and there is no way that they can do their work at home.
Similarly, if an employee is on any form of statutory leave, unpaid sabbatical or other unpaid leave on or before 28 February 2020 and then placed on furlough, the furlough period would not begin until the expiry of the period of leave previously agreed.
The First Treasury Direction provided that no claims could be made under the CJRS for unpaid sabbatical or other unpaid leave beginning before or after 19 March 2020. This was a surprising requirement as it meant that anyone placed on unpaid leave because of coronavirus could not be paid under the scheme until that unpaid leave ended and the notification and consent requirements had been met. The Second Treasury Direction, which applies to claims submitted on or after 22 May 2020 (or claims submitted before that date that comply with the terms of that direction), contains new provisions. Employees who began unpaid leave prior to 1 March 2020, can only be furloughed once their period of unpaid leave has come to an end or the event that would trigger the end of their period of unpaid leave has occurred, The Second Direction includes provisions whereby the expiry date (for unpaid leave started before 1 March) can be varied by agreement but only if this agreement is completed prior to 20 March 2020. Employees who start unpaid leave after 1 March 2020 must still finish their period of unpaid leave prior to being furloughed. However, there is nothing in the Second Direction which prohibits an agreement being made between employer and employee to bring the unpaid leave to an end at any point. This corrects the issue in the First Directory whereby employees placed on unpaid leave at the start of the pandemic and after 1 March 2020 for child care or other reasons could not have their period of unpaid leave terminated and commence furlough leave.
The Government has released separate guidance for employers to calculate the rate of pay during full-time furlough and the First Treasury Direction goes into further detail about how pay is calculated under the Scheme.
The Direction introduces the concept of a fixed-rate employee. This is essentially very similar to someone who is a salaried-hours worker for National Minimum Wage (NMW) purposes. In summary, they are people who are entitled to an annual salary in respect of basic hours and are not entitled to any other payment in respect of those hours. The full list of conditions at paragraph 7.6 of the Direction should be checked in full. When calculating what can be reclaimed for fixed-rate employees, the CJRS will not pay out in respect of anything that goes beyond their basic salary at 19 March 2020.
For employees whose pay varies the CJRS will not pay out in relation to anything that is not “a regular salary or wage”. This means that the Scheme will disregard payments such as:
- conditional payments
- payments based on performance
- gratuity or tips
- discretionary payments.
The wording of the First Direction is ambiguous in relation to payments to staff whose pay varies relating to additional payments for things such as on-call or other payments that are made where an employee carries out additional duties. Government guidance suggests that overtime and any regular payments made to employees can be paid. If the Government Guidance is followed, this would mean variable hours workers being treated more favourably than fixed-rate employees. The Second Direction is clearer and would suggest that these additional payments are covered and would fall within Par 17(19) a of the Second Direction as being included. The Second Direction removed the previous statement that the
CJRS would not payout in respect of any payments that are conditional on any matter. This included an instance where an employer and employee have agreed an arrangement regarding salary which is conditional on the receiving a payout from the CJRS.
The calculation of pay for flexible furlough is more complex. An employer will need to calculate an employee’s usual hours and then record the hours the employee actually works and the hours that the employee is on furlough.
The calculations will differ according to whether the employee works fixed hours or if they work for variable hours and are paid according to the hours they work.
The employee’s working hours do not necessarily need to match the employer’s pay period. For example, an employee’s fixed working hours may be calculated on a weekly basis and yet they are paid monthly.
As individuals are only entitled the NMW (and the National Living Wage) for hours they are working, furloughed workers who are not working can be paid the lower of 80% of their pay even if that would fall below the NMW based on their usual working hours.
The only exception to this would be if employees on NMW are required to complete some online training courses whilst furloughed. In those cases, the employees must be paid the NMW whilst training. However, given the Government has clearly set out that no volunteering nor training that would profit the organisation must be completed during furlough, this training would be for that individual’s personal advancement and training.
Employers cannot make claims under the CJRS for specific benefits that are payable to an employee during an employee’s period of furlough. These benefits are:
- Statutory Sick Pay
- Statutory Maternity Pay
- Statutory Adoption Pay
- Statutory Paternity Pay
- Statutory Shared Parental Pay
- Statutory Parental Bereavement Pay
Employers will need to take these benefits into account when calculating the amount being claimed.
Given the catastrophic effect of the country’s shut down on those who are self-employed, the Government has offered a similar reimbursement scheme. Details of the scheme can be found here.
- The Self Employment Income Support Scheme (SEISS) is available to self-employed individuals or members of a partnership if they have submitted their self-assessment for the tax year 2018/2019, have traded in 2019/20 tax year, will continue to trade in the tax year 2020/2021 and has lost profits because of coronavirus.
- They must have average trading profits of less than £50,000, and more than half the individual’s income must come from their self-employed business.
- Eligible individuals will receive a taxable grant which will be 80% of their average profits for the last three completed tax years up to a maximum of £2,500 per month for three months.
- In addition, on 28 May 2020, the Chancellor confirmed that those eligible for the SEISSwill be able to claim a second and final grant in August 2020. This will be worth 70% of their average monthly trading profits, capped at £6,570, and paid in one instalment covering three months' worth of profits.
The Prime Minister announced on Sunday 10 May 2020 (followed on 11 May 2020 by the Government’s document “Our Plan to Rebuild The UK Government’s COVID-19 Recovery Strategy" that employees who were unable to work from home should be looking to return to their places of work.
In preparation for the return of employees who cannot work from home, employers are being asked to carry out rigorous risk assessments, in collaboration and consultation with employees and their representatives. The purpose of these being to take steps to ensure the safety of returning employees by introducing new ways of working which seek to ensure social distancing and increased hygiene measures. The Government has produced more specific guides (updated 10 July 2020) to various sectors to give more information and guidance as to details of these measures.
Workplaces must, the Government have announced, be COVID-19 secure. The Health and Safety Executive notes that “being COVID-secure means being adaptable to the current guidance and putting measures in place to control the risk of coronavirus to protect workers and others”. The guidance on its website provides practical steps but no specific actions or definitive definition. In the Government’s defence, different workplaces are going to require different measures, so making any definitive statements is impossible. The Government has published a “COVID-secure” poster that can be displayed in workplaces so an employer can demonstrate the steps it has taken. This poster suggests that once an employer has done the following it is COVID-secure:
- carried out a risk assessment and shared the results;
- ensured cleaning, handwashing and hygiene procedures are in place;
- taken reasonable steps to help people work from home;
- maintained 2 metres social distancing between employees;
- where 2 m is not possible has ensured that 1 metre or more is to be maintained; and
- taken “mitigating actions” to avoid transmission at this reduced distance.
You can listen to the podcast recording by the employment and pensions team, where they discuss the issue of employees returning to work in more detail.
From 1 August 2020, the Government will “pause” shielding (subject to increased transmission of COVID-19 in the community). The Government has issued the following guidance to assist with this process. Previously shielded employees who are unable to work from home will be able to return to work and likewise, extremely clinically vulnerable children will be able to return to school with the rest of their peers.
The Government has announced that employers must work with these shielding employees to assist their return to work and ensure that the workplace is COVID-19 secure and they are safe to return. From 1 August, previously shielding employees will no longer be entitled to SSP on the grounds that they are shielding although they may, subject to eligibility, be entitled to SSP on the grounds of their underlying health condition. Shielding employees may still remain on furlough provided they have completed three consecutive weeks on furlough prior to 30 June 2020.
There are still a range of issue regards bringing these employees back into the workplace that have yet to be resolved. The Government has not made it clear whether previously shielded employees should return to the workplace if their employer cannot guarantee social distancing given the nature of the role or if PPE is required to be worn. If an employee refuses to return to the workplace because of their underlying condition which means they do not feel safe to return then an employer needs to be aware of potential discrimination issues should they try and force them back to work or insist they take holiday or unpaid leave until they are ready to return.
If an employee cannot return to their workplace an employer has several options;
- the shielding employee can be put (or remain) on furlough until 31 October 2020. This is provided they have completed a minimum three week period of furlough prior to 30 June;
- if signed off by the doctor, they can claim SSP on account of their underlying illness (and not on the basis of them being clinically extremely vulnerable) for as long as they are entitled and remain signed off;
- they can take holiday (although this is unlikely to give them much time); or
- the employer can decide to make some sort of discretionary payment i.e. under the contractual sick pay policy or match what would have been their furloughed pay. There is of course further the option of the employee taking unpaid leave, but our view is that this option is risky (see bullet point below).
For more information on this please go to our podcast page and listen to the recorded podcast on this issue.
The measures outlined above relate to workers in England. The devolved Governments of Northern Ireland, Wales and Scotland are working on different timetables for the lifting of lockdown.
In response to the pandemic’s effect on the NHS, social care and the society at large, the Government has announced a volunteer scheme. The idea being that volunteers will “fill in the gaps” where possible.
The response has been overwhelming, and Schedule 7 of the Coronavirus Act 2020 sets out the process an individual must follow if they are employed and would like to volunteer.
- Employees (and workers) must give three working days’ notice of their intention to volunteer and must submit an emergency volunteering certificate – this is issues by the appropriate authority where the individual is going to volunteer.
- An individual can volunteer for a period of two, three or four weeks in any sixteen-week period.
- The leave is unpaid, but the individual will continue to accrue all other aspects of their employment, i.e. holiday etc.
The Government has amended the paid holiday provision in the Working Time Regulations. To give more flexibility to businesses without costing employees their holiday entitlement, employees (and workers) can now carry over up to four weeks statutory annual leave into the next two years. If employers provide contractual leave over and above the statutory entitlement, the provisions for this contractual leave will remain the same. Regulation 13A of the Working Time Regulation, which permits the additional 1.6 weeks paid statutory leave to be carried over for 12 months, remains the same. This amendment only applies to the first four weeks of paid statutory holiday.
As noted above, employers can request that employees take holiday or cancel booked holidays. Again, the notice periods must be followed unless the employer has the employee’s consent. They are as follows:
- double the length of the holiday if the employer wishes to require a worker to take holiday on particular days;
- the length of the planned holiday if the employer wishes to cancel a worker’s holiday or require the worker not to take holiday on particular dates.
Updated 14 July 2020
Third Treasury Direction
End of Shielding
Redundancy and Furlough
Holidays and Furlough
SSP and “Bubbles”
Updates regards COVID-19 secure workplaces
Updated 12 June 2020 - Flexible furlough scheme
Social care guidance for the workplace
Update 5 June 2020 - Second Treasury Direction and impact
Government's announcement of extension fo CJRS and the changes to the scheme
Extension of SSP for track and trace scheme
Update of SEISS
Updated 18 May 2020 - Government guidance on holiday entitlement and pay.
Updated 12 May 2020 - Extension of CJRS and the Government’s publication “Our Plan to Rebuild – The UK Government’s COVID-19 Recovery Strategy”.
Published 5 May 2020
For more information
Please contact Matt Wort.
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