Published 24th March 2020
Thrive Law have helped hundreds of anxious people at this difficult time for FREE via email@example.com
We also have our “Catch All” blog, providing all the basic guidance on coronavirus and your obligations towards employees. But, we also have the following blogs which should be helpful for you:
- Coronavirus FAQs
- Coronavirus is Contagious but Panic is Too (anxiety and coronavirus)
- Short Time and Layoffs
- Furlough (this is the method by which employers qualify for the Coronavirus Job Retention Scheme)
- The Coronavirus and Flexible Working
- School Closures
- The impact of Coronavirus and the Home Working Revolution
- How to Prepare for a Remote Workforce
Here are some of the common themes in the questions we are being asked.
What Government assistance is available for businesses who can’t afford to stay open and pay their employees? What is the Coronavirus Job Retention Scheme?
Employers should contact their accountants to see what grants and loans might be available before making any drastic decisions. Business support has been put in place and there are more details here.
The Government’s Coronavirus Job Retention Scheme will essentially pay some of the salaries for employees, in all businesses provided their employer had enrolled them for PAYE online and the employee has a UK bank account. They will be retained as employees, but 80% of the salary (up to £2,500) will be paid for, for 3 months, by the Government under this Scheme. Once furlough ends, they will go back to work as normal. In line with new Government Guidance, vulnerable people as well as those with childcare obligations are now entitled to be furloughed, not just those who would otherwise be at risk of redundancy.
It is a grant so is not repayable by the company. The current guidance is that all UK businesses will be eligible.
Dependent on the contract, it is likely that you will require the employee’s consent, as their status will change to a “furloughed” employee. Employees must be notified in writing of their employment status and employers must keep the records for five years after furlough. If you haven’t done this, we can support you and provide you with a furlough agreement, please get in touch.
An employer will also be able to choose whether the employee only receives the Government subsidised 80%, or whether the employer meets the cost of the additional 100%. If the intention is for the employer to receive only 80% of their salary then you will, again, need to obtain their agreement to such a decrease in salary.
At this point, we should add, that we are still awaiting further government guidance and draft legislation, so there are still some points that are still unclear, and the advice below may be subject to change as the further information develops. For further information on this scheme and furlough, we have published a blog here.
When is the portal open for the Coronavirus Job Retention Scheme?
HMRC have confirmed that an online portal is set to be introduced for the Scheme, where employers can apply for the reimbursement. The portal also intends to offer new guidance in a bid to help those submitting claims. It will be processing payments of staff who have been subject to furlough. This is set to open from Monday 20 April 2020 whilst payments are set to be made by Thursday 30 April.
It is expected that payments will be made within 4-6 working days of HMRC receiving a claim.
Guidance has stated that the portal will be open on a 24/7 basis and in the event that the portal is facing extremely high traffic, which is to be expected, online users will be placed within a queue.
HMRC has confirmed that they will prosecute employers who abuse the system and has encouraged employees to inform HMRC where this is taking place, to avoid being complicit. We believe that examples of abusing the system would be, most prominently, still requiring employees to work whilst furloughed.
If it is not possible for employees to work from home due to the nature of the business and an employee is confirmed to have coronavirus, would the employer have to close the business?
The employer should immediately isolate this individual in the workplace and send them home. Once they are isolated, the employer must contact the individual to find out who they have been in contact with and where they have been so that those areas can be cleaned.
An employer’s next step would be to inform the workforce that someone has been confirmed with the virus, without specifically naming or disclosing who that individual is for privacy reasons.
In terms of closing the company, this would be a decision for the employer to make. The employer may want to do this to deep clean if it becomes appropriate. Ultimately, this will be dependent on how big the company is and how often employees come into contact with one another.
An employer must also think of this from a health and safety perspective, as there will have to be a strict cleaning procedure put in place before anyone would be allowed to return.
Can you advise your employees to be clean shaven, for health purposes at work because of the coronavirus?
Male employees with a beard may be asked by employers to be clean shaven in certain industries. This is because beards may interfere with masks for protected control purposes in environments such as hospitals etc.
This is because having a beard means water particles could escape upon an employee sneezing. This inhibits a mask protecting other people upon someone sneezing.
If this is ignored by an employee working in this sector, without any credible reasoning (such as religion) the employer would be entitled to dismiss the employee for failing to follow reasonable management instructions.
If there is a genuine reason (such as a protected characteristic such as religion and belief) for an employee not shaving their beard, the employer would have to make an effort to redeploy this individual in an area where they are not required to do so.
Please note, an employer must show that there are no lesser steps they could have taken that would have the same effect.
Can employee’s volunteer for the NHS, even if employed?
The Government is currently consulting with businesses about potentially bringing in protection for employees who are set to volunteer for the NHS in relation to the coronavirus outbreak. This protection would cover an employee’s respective roles, for up to four weeks, if they were to volunteer. This means it would be illegal for an employer to dismiss them on this basis.
What if an employee insists on attending a country for a pre-planned holiday, or otherwise, where they know there is reasonable likelihood it will result in quarantine?
- The employer could first refuse permission to leave; if they continue to insist, they want to go because they have already paid for the holiday etc, then this could be failure to follow reasonable management instructions. If they still go, then the employer should seriously consider what quarantine measures should be put into place on their return.
- If a quarantined employee becomes unwell, then this would become sick leave and therefore be treated as such, in accordance with the company sickness policies.
- The Government Guidance is currently cautioning against all but essential travel; an employer would therefore be well advised to pass this advice onto their employees at this time.
Can an employer order that an employee (who cannot work from home) doesn’t use public transport to come to work?
We would advise that this can be requested, but an employer would likely have to reimburse that employee for their losses (e.g. for taxi fares or petrol costs).
Can an employer tell their employees who are feeling poorly but not showing symptoms to come into work?
Broadly; no. Employees with a cough and a fever should be staying at home for at least 7 days. If that individual is at home with a cough whilst living with family, they should remain at home for at least 14 days.
Please see the following link for the latest government guidance on the coronavirus.
If an employer had to send everyone home would they have to pay their staff, or could they ask the employees to take unpaid leave?
This is the precise scenario which the Coronavirus Job Retention Scheme has been put into place to cover. We have written about furloughing employees here.
If an employer sent an employee home, would they still be expected to pay them full pay whilst they are off?
If an employee is sent home because they are sick, or if an employee goes home because they are self-isolating, they are entitled to sick pay. Unless the employer has a clause in the employee’s contract which entitles them to full pay when they are sick, you don’t have to pay them in full. You should pay them Statutory Sick Pay (SSP) and the government will reimburse you for the isolation period of 14 days.
If you send them home for any other reason, you need to pay them unless they agree to take annual leave or unpaid leave, or agree to be furloughed.
Can employees be furloughed multiple times?
Yes, employees can be furloughed multiple times, provided that each period of furlough is for at least 3 weeks.
How does furlough work in conjunction with annual leave?
In line with brand new government guidance, we understand that employees can take annual leave whilst furloughed, as they are not mutually exclusive statuses.
However, if an employee is set to take annual leave whilst they are furloughed, they must be paid in full for this leave (at 100%), where the annual leave is part of the employee’s first four weeks of entitlement. Employers should still be able to claim the 80% back.
Further information has been covered on this topic on our new blog explaining furlough and annual leave, which you can find here.
Can employees be furloughed AND work for another employer?
Surprisingly, the new guidance makes it clear; an employee who has been furloughed CAN work for another employer. It can’t be for the same employer as they can only volunteer or do training for the employer who has furloughed them but they are permitted to work for another company (provided their contract permits this). This means they can earn 80% from furlough, and 100% in a new job.
This was unexpected and seems odd as the purpose of furlough is to keep employees at home and prevent the movement of people whilst also keeping them in employment, and it therefore seems odd that this guidance has been provided.
What are self-employed people entitled to if the business they work for closes and they are unable to bill them for any work done?
As a self-employed individual is not an employee, they would need to turn to their contract/consultancy agreement with the business they are contracted to do work for. If the contract addresses this issue then follow the contract; usually it will be silent, and you would only be paid for work you have completed.
As they are not an employee, they will not be paid anything unless they come to an agreement with the business. We would suggest contacting the business and agreeing a way forward if the business is set to close, highlighting your concerns.
The Government has, however made an amendment to the coronavirus bill which (if accepted) will entitle freelancers and self-employed people to what’s termed “statutory self-employment pay”.
If this change is accepted then it will mean that self-employed and freelance (undefined) workers will have their income “topped up” by the Government to the lower earnings of:
- 80% of their monthly net earnings, averaged over the last three years; or
- £2,917 per month.
Whichever one of those is lower.
In the case that you are an individual who employs a nanny or cleaner etc – you can furlough them provided they have been paid through PAYE, you don’t need to be a limited company etc. to do so.
If an employee is being treated for cancer, therefore falling within the vulnerable person category, what are they entitled to during the outbreak?
Cancer is automatically treated as a disability under the Equality Act 2010, which means that the employee is entitled to reasonable adjustments from the date of their diagnosis, whether it is during the outbreak or not. This would include a lessening of their workload and flexible working arrangements to attend appointments as they require.
The employee would also be entitled not to be subject to any detriment because of their disability. This means an employer cannot subject an employee to any disciplinary action due to their sick leave if it is disability related.
Therefore, as an employee undergoing treatment for cancer would fall within the vulnerable category, an employer should make all reasonable adjustments, such as allowing them to work from home, to ensure they are protected.
If working from home cannot be facilitated, you should try to come to some arrangement for them to be at home, be that unpaid leave or annual leave, or limited hours.
What if I start a new job role in the next month and are unable to start work on the date given, due to the company already working remotely or due to illness? Are they able to rescind the offer of employment made?
In the first instance, we would suggest that you reach out to your new employer to establish what they are expecting. Depending on the industry, they may have already made arrangements for employees to work from home or take leave.
If you are unwell or in self-isolation, then you would be eligible for sick pay. If that is with your new employer, it would still be applicable as it is a right from day one. You would need to ask your new employer what they require to evidence your sickness and check their processes and policies for reporting sick.
Finally, they may be able to rescind your offer. They would have to give you the same notice as they would have to provide if you were terminating your contract in the first place. You should check your contract for this, but if is statutory that would be one week’s notice.
What if I have resigned to start a new job role and this has subsequently been delayed or cancelled?
There is some confusion about employees who resigned, whose new jobs have been delayed. Some guidance online has indicated that they may be able to ask their former employer to reinstate them and then furlough, which is true. Similarly, where an employee has been made redundant, they can be re-employed and furloughed. However, the employer is under no obligation to do so. We are concerned that doing so may jeopardise an employee’s otherwise legitimate claims under the Scheme. The other risks of doing so is that:
- That person could then build two years employment, meaning they can then only be dismissed after a fair process and a fair reason;
- HMRC might not reimburse the salaries. Unfortunately there’s still not complete clarity over whether re-employed employees will be suitable for the Scheme. We are concerned that doing so may jeopardise an employee’s otherwise legitimate claims under the Scheme.
- You would have to fund this yourself, and then seek reimbursement thereafter, unless they agree to defer their salary.
- Where someone was dismissed for gross misconduct or who have resigned, employers should be very careful if taking them back, as the risk is on the business.
If an employer cannot afford to pay Statutory Sick Pay (SSP), what should they do?
The government has agreed to reimburse SSP for employers so where possible, employers should pay this and seek a reimbursement.
There are other methods of support available for businesses (as above), so we urge businesses to wait to find out what these are before considering layoffs, especially where someone is sick.
Can an employer make reductions to salaries to cover the loss of revenue prediction for the business due to the coronavirus?
An employee should review their contract and the terms of their employment, as there may be a clause present which would allow an employer to make this variation.
Under the present day circumstances with the global crisis we are facing, if an employer chooses to decrease their employee’s salary, by for example 15%, in order to keep the business afloat, within this current climate this would not be deemed to be a fundamental change to the contract, provided they act reasonably in doing so and confirm how long the change will come into play for (e.g. as a short-term reduction).
As an employee you should suggest any alternatives to your employer that you feel would be deemed suitable in comparison to a salary cut. This could also be discussed with your colleagues who may be facing the same thing. Also agree a review date with them.
Is an employer within their right to ask employees to use some of their annual leave during this period?
As an employer, you can request when people use their holiday/annual leave. Usually, employers have reserved the right in their employment contracts to request when their employees do or do not take their holiday.
Can an employer insist that employees still take the annual leave they have already booked even if their plans have been cancelled?
Regarding members of staff who have annual leave booked, they will still be paid for their annual leave and thus this does not put them at a financial disadvantage.
However, out of good will, an employer could offer employees the option to cancel their annual leave if their holidays have subsequently been cancelled.
Where someone is sick during holiday, they should be entitled to have the holiday at a time when they are well in any event, whether this is related to the virus or not.
What rights does a part time employee, who works for a large organisation which may be closing for an unknown duration due to the virus, have?
In the event that your workplace does close, there is a possibility that the employer may request the employee take this time off as annual leave. Part time employees may also be furloughed, as outlined above.
We cannot advise exactly what the situation would be for the employee in these circumstances as we are not your employer, but by way of a first step, we would suggest that the employee approach their manager to see if they can offer any reassurance regarding next steps.
Furthermore, if you work for a large organisation, you could contact HR support directly enquiring about what is going to happen. Your HR team are very likely aware that employees will need guidance in these upcoming days, and by you getting in touch it will inevitably add pressure to this. However, if you do work for a large organisation, we would expect that company wide information will shortly be sent to you and the rest of your team as the situation develops.
Where do apprentices stand during the outbreak?
Apprentices can be furloughed just as other employees and they can continue to train whilst furloughed. However, you must pay your apprentices at minimum wage for the time they spend training. This means you must cover any shortfall between the amount you can claim for their wages through this scheme and minimum wage. We have drafted specific guidance in relation to apprentices rights which can be found on our blog here.
If an employee is pregnant, should they still be asked to work?
The latest government advice is that pregnant women be cautious and limit their social contact. Therefore, an employer should allow pregnant women to work from home, especially as the guidance is clear that people should be working from home unless it is impossible to do so. However, if it is not possible for her to work from home, the employer should consider the alternatives of:
- moving pregnant employees to a different location,
- if that employees maternity leave is close, suggest they start that maternity leave early; or
- suspend pregnant employees from work on medical grounds, with full pay.
Employers should always consult with the individual employees affected before taking any action. Employers can also furlough those who are vulnerable, so should consider whether their pregnant employee would be vulnerable and therefore could be furloughed.
If you have any further questions on the above, please do not hesitate to get in touch at firstname.lastname@example.org
Any questions which you submit to this may appear on our FAQs page but will be on an anonymous basis.
Written by the Thrive Tribe.
Anything within this article should not be taken as legal advice. Any information provided will be general advice and for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action. If you wish to obtain specific advice to your situation and your decisions, please contact us and we will thereafter be able to advise.