United Kingdom

The world is facing unprecedented impacts from the Coronavirus (COVID-19) pandemic. The impact on people, businesses and supply chains is unfolding rapidly, and is now being felt in every part of the globe. Keep up to date with the latest available information and resources here.

The Government has now produced more detailed guidance on the Coronavirus Job Retention Scheme which was announced on 20 March 2020 and designed to support employers in paying employees’ salaries for those who would otherwise be laid off during the crisis. This update provides a summary of that guidance.

What is the Job Retention Scheme?

• The Scheme covers 80% of monthly “regular” wage, up to £2,500 a month.  Fees commission and bonus should not be included.We consider that for salary sacrificed wages, this strictly means the lower sacrificed amount
• On top of this, the Scheme will also cover employer National Insurance Contributions and minimum employer auto-enrolment pension contributions (more guidance is expected on how these should be calculated)
• The Scheme can be used any time from 1 March 2020 to 31 May 2020
• All UK employers can use the Scheme if they had a PAYE scheme in place on 28 February 2020
• The furlough pay is subject to normal tax and National Insurance Contributions, and employees also pay automatic enrolment pension contributions as usual

Which employees are covered?

• All employees of relevant employers
• Includes employees made redundant since 28 February 2020 if re-hired by their employer
• Employees on furlough CANNOT undertake work for their employer during furlough
• Does not cover employees who have reduced hours
• Employees hired after 28 February 2020 cannot be furloughed
• Not all employees need to be placed on furlough
• Employees on unpaid leave cannot be furloughed, unless they started that unpaid leave after 28 February 2020
• Employees on Statutory Sick Pay (SSP), on sick leave, or self-isolating cannot be placed on furlough leave – they should receive SSP instead during that period, but they can be furloughed after that period ends
• Employees who are shielding in line with public health guidance can be placed on furlough (we believe this means individuals who are following guidance on shielding for extremely vulnerable groups)

How does it work?

• Employers need to agree with employees about going onto furlough leave and the changes to their contracts (which we consider will include not working, when they will return to work, reduced remuneration, and any changes to benefits)
• Equality and discrimination laws apply (so essentially the normal selection principles of fairness)
• There needs to be a written record of the furlough – which needs to include a letter to the employee confirming they have been furloughed
• Employees with more than one job can be furloughed by both employers, by one, or by none.  The employments are treated entirely separately
• Furloughed employees can take part in volunteer work or training
• Any work or activities a furloughed employee undertakes for their employer are not allowed.  They can undertake online training courses for their employer whilst furloughed but then need to be paid the living wage for the time spent training even if this is more than the 80 percent
• An employer can top up the payments if it wishes to but must pay employer NICs and employer automatic pension enrolment contributions on the top up amount as these will not be funded through the Scheme
• Any period of furlough needs to be for a minimum of 3 weeks
• Claims can be backdated to 1 March 2020
• Employees on furlough leave retain their same employment rights such as unfair dismissal, redundancy consultation, non-discrimination

Family Leave

• Maternity leave must be taken for a minimum of two weeks after the birth of the baby
• Normal rules for Statutory Maternity Pay apply
• Otherwise, it appears that individuals on maternity leave can be placed on furlough leave.  Enhanced contractual pay you pay during maternity leave can be included in the wage costs calculation in relation to furlough pay.  The same applies to other family leave

What do employers get back?

• You will receive a grant from HMRC for the lower of 80% of the regular wage or £2,500 a month PLUS the employer National Insurance Contributions and the minimum automatic enrolment employer pension contributions

How does the calculation work?

• For full and part time salaried employees – the actual salary before tax as at 28 February 2020 is the relevant amount to take into account.  Fees commission and bonus should be excluded.
• For employees whose pay varies:
  • If employed for 12 months prior to the claim, the employer can claim the higher of the same month’s earnings in the previous year, or the average monthly earnings from the 19/20 tax year
  • If employed for less than a year prior to the claim, the employer can claim for an average of their monthly earnings since they started
  • If the employee started work during February 2020, use a pro-rata of their earnings so far

What process should be followed when placing employees on furlough leave?

• Employee agreement is needed for the changes – so in our view this should involve following an amended redundancy process
• If sufficient numbers of staff are involved the guidance states “it may be necessary to engage collective consultation”.  Our previous update on the Job Retention Scheme refers to this.  If 20 or more employees are at one establishment and redundancies are proposed then we can discuss with you how to deal with these obligations.  We are of the view that proposals to place employees on furlough are linked to redundancy proposals because if employees do not agree to furlough, redundancies would be the secondary option
• Furlough does need to be considered in relation to any redundancy because in our view it is part of a fair process (a fair redundancy process should look at all ways to avoid employment ending).  That is not to say that furlough will be used – but it should be considered

The Coronavirus Bill, published on 19 March 2020, introduces a new statutory right for workers to take emergency volunteering leave to help support essential health and social care services – but it isn’t yet known when this legislation will come into force.

Who is entitled to take emergency volunteering leave?

Workers who have been certified by an appropriate authority (a local authority, the NHS Commissioning Board or the Department of Health) to act as an emergency volunteer in health or social care can take emergency volunteering leave.

Except for businesses with fewer than ten staff, there is no provision for employers to refuse leave, for example because of operational need.

How can emergency volunteering leave be taken?

It can be taken in blocks of two, three or four weeks, and workers can take one period of leave in each “volunteering period”. Initially there will be one 16-week volunteering period (beginning on the day the legislation comes into force). Subsequent volunteering periods may be set.

To take the leave, workers must give their employer three working days’ notice and produce the certificate confirming that they have been approved as an emergency volunteer.

Are emergency volunteers entitled to paid leave?

No, the right will be to statutory unpaid leave, but a UK-wide compensation fund will be established to compensate these volunteers for loss of earnings (if they suffer loss of earnings due to volunteering), travel and subsistence. It isn’t clear yet whether the compensation offered by the government will replace volunteers’ full pay or whether it will be subject to a cap.

What employment rights and benefits will volunteers have?

During emergency volunteering leave, workers remain entitled to the benefit of all of their terms and conditions of employment which would have applied if they had not been absent – except for terms and conditions relating to remuneration. The period of absence will be deemed not to have any effect on their pension or benefit entitlements.

These volunteers will have a statutory right to return to the job they were employed in before taking this leave, on terms and conditions no less favourable than those which would have applied if they hadn’t been absent. So volunteers will be in a similar position to employees on maternity, and other family leave.

In addition, volunteers will have the right not to be subjected to a detriment or dismissal on the grounds of taking emergency volunteering leave.

What does this mean for employers?

Aside from the issue for employers of the potential impact of the volunteers’ absence on the business, some employers may consider whether to offer to top-up an individual’s pay if the compensation offered by the government is subject to a cap. However, we will need to wait for further information about the compensation scheme to see whether workers will be able to claim full loss of earnings from the government.

Clyde & Co attorneys are available to assist you with these and other workplace issues. For more information, visit www.clydeco.com. 

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.

Coronavirus, now officially named COVID-19, was declared a global health emergency of international concern by the World Health Organisation on 30 January 2020. The outbreak poses a threat to many organisations and presents a number of employment issues for UK employers. This article addresses some of the immediate issues which UK employers are facing.

1. Can an employer ask its staff to remain / work at home following travel to or via a particular country?
   Employers have a duty to protect the health and safety of their employees and to provide a safe place to work. Aside from legal duties, there is also a strong moral imperative for employers to ensure that their staff feel safe and secure at work. At the time of writing, the NHS advises anyone who has travelled to Wuhan and Hubei province should self-isolate for 14 days after their return, and anyone returning from certain other affected areas (other parts of China, Thailand, Japan, Republic of Korea, Hong Kong, Taiwan, Singapore, Malaysia, Macau) should do so if they exhibit certain symptoms. For the protection of your remaining staff, employers will be keen to follow NHS guidelines and at the very least require those returning from Wuhan and Hubei to stay at home for 14 days. Many employers may also wish to extend this to those returning from the other affected areas too.From a pure employment law perspective, the first question to ask is whether there is an express or implied contractual right for the employee to attend work in these circumstances. It’s unlikely that a contract would include such a right, and there is no general implied term requiring an employer to provide work provided it continues to pay the employee’s wages. There are exceptions where there may be a right to work, such as where the employee would be deprived of the opportunity of earning remuneration eg by losing out on shift premia or commission. Therefore, unless such an exception applies, and provided there are no discriminatory issues at play (such as only requiring employees of Chinese origin to remain at home), you are unlikely to be in breach of contract by requiring employees to remain at, or work from home so that you can protect the rest of your workforce. It’s obviously important for such discussions to be conducted proportionately and sensitively (by listening and responding to any affected employee’s concerns) as a serious failure to do so could breach trust and confidence which would entitle the employee to resign and claim constructive unfair dismissal.
2. What if an employee refuses to attend the workplace because of concerns about contracting the virus?
   Current government advice is that well employees are not required to stay at home, unless they have recently returned from Wuhan and Hubei province or have been in close contact with someone with confirmed coronavirus. However, some people have real concerns about catching the virus particularly if they have genuine health concerns which make them more vulnerable, or they live with vulnerable family members. You should try to reassure employees that there is no need to panic as the risk to the UK population remains low, and advise them where to find further support. From an employment law perspective, employees are bound to obey reasonable and lawful management instructions. Therefore, unless the employee has good reason not to attend the workplace you would be entitled to discipline the employee for refusing to attend.
3. What pay are employees entitled to if their employer asks them to remain at home?
   Employees who are sick may be entitled to statutory sick pay as well as any company pay depending on the company’s sickness policy. Employees who aren’t sick but whose role isn’t appropriate for home working, should continue to be paid their wages unless there is an express contractual right for the employer to suspend without pay (but beware of potential indirect discrimination issues if this means treating large sections of the workforce in different ways). Employees who are required to work from home should, of course be paid in full. As mentioned above, there will be specific issues with staff who are deprived of earning pay such as piece workers or those on commission. If the situation worsens and government guidance changes, keeping staff at home on full pay will not be an option for most businesses so employers may have to consider options such as redundancies, or temporary solutions such as lay off or voluntary special leave policies where employees could opt to take paid or unpaid leave.
4. What if a medical practitioner tells an employee to self-isolate or go into quarantine despite being well enough to work? Does the employer have to pay the employee?
   In this situation the starting point is whether the employee is able to work from home. If so, the employee should be paid. If not, there is no obligation to pay the employee although given the reason for not being able to turn up to work is medical advice not to do so, it would be appropriate to treat the time off as sick leave and follow the usual sick leave policy.
5. Can an employer request a staff member to seek medical advice/work from home because they are exhibiting certain symptoms?
   In the absence of symptoms, a doctor would be unlikely to order tests and where there is no underlying sickness, a fit note from a doctor will most probably not be provided. If there were symptoms, this would be a reasonable request only where the employee has just returned from an affected area or lives or interacts with people who have. If the employee unreasonably refuses your request, you would be entitled to engage the disciplinary procedure for failing to obey a reasonable order. Some contracts provide that the employee will undergo a medical examination on request by the employer but this would need to be a private physician and that would have costs attached.
6. Can an employer stop a staff member travelling to a particular country on personal travel? 
   It’s unlikely that you can order an employee not to take a holiday that’s already been booked. However, bearing in mind your duty to your other staff to provide a safe work place, it would be appropriate to warn the employee if they will have to self-isolate on return (if that’s your policy). Should the situation worsen, you could consider introducing an alternative policy which requires staff who book holidays to particular countries to self-isolate on return by taking the time out of their paid holiday entitlement or as unpaid leave. Whether you are entitled to do this would depend on their contractual terms. Again, such a policy should be introduced sensitively and with consultation with workplace representatives.
7. Are there any best practice guidelines for maintaining a safe workplace when faced with a viral outbreak? 
   Employers should be prepared by keeping up to date with Government and public health advice. You should communicate clearly to employees what they need to do to take precautions – such as avoiding travel to affected areas or coming into contact with infected people. You should advise them what to do if they think they may have caught the virus.
8. Any guidance on how to prepare if this was to escalate?
   You should develop a contingency plan, assessing your level of exposure to any disruption to your business. This plan should be communicated to key personnel across the business. A contingency team should be identified to take responsibility for operating the plan should a pandemic occur. Any contingency plan should consider alternative ways of working to prevent spread of infection – such as home working, increased use of video conferencing and calls to avoid face to face contact. The plan should also include strategies which deal with possible scenarios such as a reduction in business or staff shortages.

Clyde & Co attorneys are available to assist you with these and other workplace issues. For more information, visit www.clydeco.com. To read the full article, click here.

For more information please contact Joseph Granato, Communications Manager at L&E Global at joseph.granato@leglobal.org.