Since Monday 23 March, businesses large and small have been left with no choice due to #lockdown, to implement measures to facilitate staff to work from home where possible. This is by no means an easy task as research suggests that only 4% of businesses can facilitate their entire workforce working from home, often because roles are customer-facing or involve providing a practical service or ‘on the ground service.
Working from home policies provide the framework for working remotely and are key to managing the expectations of staff. They can be used to clarify working times, reporting requirements and use of company property such as laptops or mobile phones. Communication is key, managers and employees are advised to keep the lines of communication open and regular so that the isolation of working from home does not become detrimental to the outcome of the work required. Skype, Zoom and other technological advancements make this less challenging in what is already a difficult time.
For employers who do not already have a working from home policy, we advise that staff are given brief guidance on what is expected of them whilst working remotely.
Many employers and employees are concerned about the negative impact of social isolation; also being referred to as ‘social fatigue’. Employers are advised to ensure they keep in touch with their team regularly, and not just to establish they are actually working, to include using video-conferencing facilities such as Skype.
Prolonged isolation could also potentially impact on morale and productivity. To sustain a semblance of normalcy in unconventional ways, virtual pizza parties on Skype can reassure employees in a time of uncertainty.
Employees in self-isolation need to follow their workplace's usual sickness reporting process even if working from home.
Employees and workers must receive any Statutory Sick Pay (SSP) due to them if they need to self-isolate because:
- they have coronavirus
- they have coronavirus symptoms, for example, a high temperature or new continuous cough
- someone in their household has coronavirus symptoms
- they've been told to self-isolate by a doctor or NHS 111
If someone has symptoms, everyone in their household must self-isolate for 14 days.
Employers often offer more than SSP – known as 'contractual' sick pay and are advised to follow terms stipulated in their employment contracts or custom that has been followed previously.
Employees can 'self-certify' for the first 7 days off work. This means following their workplace process but not having to get a note from a doctor or NHS 111.
Those self-isolating due to coronavirus for more than 7 days can get an online self-isolation note from the:
- NHS website
- NHS mobile phone app – for those registered with a GP in England
- NHS Direct Wales – use the coronavirus symptom checker
Employers are advised of the need to be flexible when requiring evidence from the employee or worker. For example, someone might not be able to provide a sick note (Fit Note) due to delays even if they've been told to self-isolate for more than 7 days if they live alone or 14 days in a family situation (information up to date at the time of writing. Source: www.gov.uk).
The Government has issued guidance that strongly advises people who are at a higher risk of catching coronavirus ('vulnerable people') to take strict social distancing measures.
Employers must be especially careful and take extra steps for anyone in their workforce who is in a vulnerable group.
They include, but are not limited to, those who:
- have a long-term health condition, for example asthma, diabetes or heart disease, or a weakened immune system as the result of medicines such as steroid tablets or chemotherapy
- are pregnant
- are aged 70 or over
- care for someone with a health condition that might put them at a greater risk
Some Employees may receive a letter from the NHS to say they should take extra steps to protect (or 'shield') themselves because of an underlying health condition and they will need to stay at home for at least 12 weeks. Employees should talk to their employer as soon as they can if they have been told to start shielding or think they might get a letter telling them to start shielding.
Employers should support staff following shielding guidelines abd keep in touch during any absences.
If an employee is still being asked to go out to work and they believe they're at a higher risk, it's important they talk to their employer. If they can show that their work or travel to work stops them from social distancing, they should tell their employer that they need to follow government advice and stay at home.
An employee is protected by law against unfair treatment and dismissal, if it's because of a protected characteristic such as pregnancy, age, a health condition that is protected under the Equality Act 2010. Employers are reminded that it could be unlawful discrimination if an employer unreasonably tries to force someone to go to work or unreasonably disciplines someone for not going to work.
Employees are entitled to time off work to help someone who depends on them (a 'dependant') in an unexpected event or emergency. This would apply to situations to do with coronavirus. For example:
- if they have children they need to look after or arrange childcare for because their school has closed
- to help their child or another dependant if they're sick, or need to go into isolation or hospital
There is no statutory right to pay for this time off, but some employers might offer pay depending on the contract or workplace policy. The amount of time off an employee takes to look after someone must be reasonable for the situation.
Some people might feel they do not want to go to work (if they are still required to go to work because of the nature of the business and their role) if they are afraid of the health implications, including catching coronavirus. Employers should listen to any concerns staff may have.
Flexible working may be an option that can be offered under such circumstances, alternatively the use of annual leave or unpaid leave can also be a solution. If an employee refuses to attend work, it may be possible to take disciplinary action but employers should be mindful of potential ‘whistleblowing’ complaints.
Following the Governments announcement that non essential businesses are required to close for a short time, or due to the effect on business of coronavirus, many businesses may find themselves in the position of needed to reduce costs.
- Reduction in hours
A common solution is to ask staff to reduce their contracted hours, unless the change is permitted in the employment contract or is agreed by the employee, employers still need to pay the employee their full salary entitlement.
- Lay-off and short term working
Lay-off is where employees are not provided with work by their employer (“furloughed”) and the situation is expected to be temporary. By comparison short-time working occurs when employees are laid off for a number of contractual days each week, or for a number of hours during a working day.
Employers can lay someone off where there is an express contractual right. In the absence of this, both employer and employee may agree to alter the terms of the contract so that the lay-off (“furlough”) is by mutual agreement. However, this will not necessarily mean that the employee has agreed to vary the contract of employment to allow future lay offs without pay.
When an employee is laid off, they might be entitled to a statutory guarantee payment from the employer, limited to a maximum of five days in any period of three months. The daily amount is subject to an upper limit which is reviewed annually. On days when a guarantee payment isn't payable, it may be possible to claim Universal Credit subject to eligibility criteria.
If the Employer thinks they will need to implement any changes to the workplace, they are advised of the importance of maintaining effective communication with staff as early as possible and throughout the closure and adequately informing them in writing
Employers have the right to tell employees and workers when to take holiday if they need to. If an employer does decide to do this, they must tell staff at least twice as many days before as the amount of days they need people to take. For example, if they want to close for 5 days, they should tell everyone at least 10 days before. This could affect holiday staff have already booked or planned. So employers should:
- explain clearly why they need to close
- try and resolve anyone’s worries about how it will affect their holiday entitlement or plans.
With the news of Laura Ashley being plunged into Administration and many household names facing financial disaster due to the impact of Covid-19, it is expected that many businesses will need too restructure and reduce headcounts to ensure financial viability for the future.
Employers are reminded that redundancies can only be made if the job is no longer needed. This can happen if a business plans to:
- change what the business does
- change location
- change how they work, for example use new machinery or technology
- close part or all of the business
The usual statutory rights apply to entitlement to redundancy pay; in additional to contractual / statutory entitlement to notice pay.
In an unprecedented move in what are unprecedented times, the UK Government announced a package of support for businesses and individuals in the form of the Coronavirus Job Retention Scheme.
Employees who have been on the payroll since 28 February 2020 on any type of contract, including full-time and part-time employees, employees on agency contracts and employees on flexible or zero-hour contracts. Employees who have been made redundant since 28 February can be furloughed if they are rehired by the employer.
The Government has committed to providing a “grant” which will pay up to 80% of an employee’s salary up to a maximum of £2,500 per month, but only if the employee is not working.
All businesses in the UK will be eligible there is no restriction based on size or number of employees and it is understood that the grant will be made available employers for employees who would have otherwise been made redundant or “laid off” due to the impact of coronavirus. The term that is being frequently used in the media to describe such employees is ‘furloughed’ employees.
The Government has recommended employers top up the 80% salary grant to ensure that employees who are ‘furloughed’ receive 100% of the salary due under their contract of employment although it has been confirmed that employers are by no means obliged to do so.
For full-time and part-time salaried employees, the employee’s actual salary, before tax, as at 28 February 2020 should be used to calculate the 80%. Fees, commission and bonuses should not be included. For employees whose pay varies, if they have been employed for at least a year, the employer can claim for the higher of the employee’s earnings in the same month the previous year or the employee’s average monthly earnings in the 2019/20 tax year. If an employee has been employed for less than a year, the employer can claim for an average of the employee’s monthly earnings since he/she started work. If an employee only started working for the employer in February 2020, the employer will have to pro-rate the employee’s earnings so far.
The guidance also covers the application of the national minimum wage (NMW) to furloughed employees. It states that, since employees are only entitled to the NMW while doing work, furloughed employees, who are not working, must be paid at the 80% rate (or £2,500) even if, based on their usual working hours, this would be below the applicable rate of NMW. However, the guidance goes on to state that if employees are required to, for example, complete online training courses while they are furloughed, then they must be paid at least the NMW for the time spent training, even if this is more than the 80% of their wage that will be subsidised.
The payments will be made by the Government directly to the employer who will then make the payment to the employee.
The Government has confirmed that the scheme will be backdated to 1 March 2020 and will be available for at least 90 days initially and reviewed at the end of the 90 day period. It may well be the case that the scheme is extended as the impact of coronavirus on an economic scale to businesses is not yet known and cannot be accurately forecast.
The term “furloughed” is commonly used in America and the use of the word by the UK Government has caused a degree of uncertainty as to its meaning. Furlough leave is a temporary leave of absence for economic reasons and is designed to save jobs.
To have access to the Coronavirus Job Retention Scheme grant, employers will need to designate employees as “furloughed” or “laid off”. This will require employee (remote) consultation and subsequent agreement if there is no specific lay off clause already in the contract of employment. The vast majority of employees are likely to agree to furlough/lay off as an alternative to being dismissed (likely to be for redundancy reasons).
Furlough leave should not be unilaterally imposed without consent. In workplaces were a trade union is recognised for collective bargaining purposes, the trade union should be consulted with about the proposed furlough leave. To minimise risk of potential claims, employers should act in a manner that would be expected of a reasonable employer.
The scheme will not cover any time that the employee was working or the difference in salary for reduced hours (short-time working).
Another round of updates
Since the Government Coronavirus Job Retention Scheme (“CJRS”) was announced by Chancellor Rishi Sunak on 20 March (it seems like such a long time ago now!), there have been a number of key updates in an attempt to clarify the position and answer some of the many practical but unanswered questions.
Never did we imagine that there would be a pandemic on this scale; or that there would be a global lockdown necessitating the closure of businesses in some cases and a reduction in the services provided by others with fiscal intervention of this magnitude.
It is unlikely that an employer would need to place their entire workforce on furlough leave. Critical business functions are likely to need to carry on. Choosing who should be furloughed and who continues to work is a challenging task especially where the intention is to intend to pay staff on furlough full pay (topping up by 20%), while other staff are being asked to work as normal.
Business owners should analyse business needs and determine which roles are critical to the business functioning in the short term? Employers need to be mindful of normal employment law legislation which protects employees against any discriminatory treatment.
The situation in relation to coronavirus changes very rapidly. We monitor the position closely and endeavour to update this Practice Note as soon as possible. However, we recommend that subscribers check the following websites regularly for the very latest position and guidance:
PM Boris Johnson's announcement on Sunday and further updated announcement yesterday, sets out that people who “can’t work from home” will now be “actively encouraged to go to work”.
This raises a number of questions by both employers and employees, who face the job of navigating the unwritten roadmap of the phased lifting of lockdown, and return to work.
The PM mentioned a few industries noted to be construction and manufacturing as those who could not work from home, and should be encouraged to now start an immediate return to their workplace; commonly building sites and factories.
Whilst the mantra “stay at home” has been dropped in favour of “stay safe”, concerns are mounting across the UK as to whether people who are in at “risk groups”, or do not feel that it is safe to return to work, will have any choice but to go back to work…. Is this really the way to ‘stay safe’
There are approximately 1.5 million people in England who have been currently classified as high risk, and were advised by the Government on 23 March not to leave their homes for 12 weeks. Those 12 weeks take us up to the 15 June, but based on the fact that the R levels are still not at a satisfactory level that the Government is happy to lift a lockdown completely, where does this leave the vulnerable if their workplace opens before then. Mixed messages have meant that employers and employees are confused as to their obligations and most importantly their legal rights.
Read the full update here.
How the Chancellor’s new Treasury directions modify the effect of the Coronavirus Job Retention Scheme (CJRS) as established by the earlier direction dated 15 April 2020?
The updated direction notes an extension of the scheme to the 30 June 2020 (which is now October and as announced already), but the main points are:
i. Change in the wording of the provisions that set out the form of agreement which is necessary to place an employee on furlough,
ii. Amendment to the wording of statutory sick pay provisions
iii. Amendment to the definition of regular pay that can be claimed under the CJRS.
The direction fails to comment on the changes to the scheme that are expected to take effect in August. There is widespread speculation that there has been a failure to mention these changes as they are still in the process of being decided by the Government.
Read the full update here.
Following the announcement by the Chancellor that the #Coronavirus Job Retention Scheme (“CJRS”) would be extended until October, employers and employees have been waiting on tenterhooks for clarification of the changes which will require #employers to contribute towards #employees subsidised salaries.
On Friday, the big reveal confirmed that employers would be expected to start making some contributions but surprisingly the contributions will have to start being made close to the end of the scheme and are significantly less than expected.
Read the full update here.