Coronavirus (COVID-19)
In this section you'll find information and updates related to coronavirus that are relevant to the law on employment.
The UK's response to coronavirus is changing regularly and often very quickly. While we'll continue to make every effort to keep this page up to date, there may be short periods where what you read here is not the latest information available. Where possible we've tried to provide links to official sources, so you can check the current situation.
Furloughing and the Coronavirus Job Retention Scheme
The UK government's Coronavirus Job Retention Scheme allows businesses severely affected by coronavirus to avoid staff redundancies by instead putting them on furlough leave and ensuring they are paid 80% of their salary (capped at £2,500 per individual).
The information below is correct as of 16 June 2020.
In a nutshell:
- The scheme applies to UK businesses, charities and recruitment agencies.
- The first step to applying is to put staff on furlough leave, which requires their agreement and a change to the terms and conditions of their contract.
- Currently, the scheme runs until 31 October 2020, which is the date by which all furlough leave must end. However, the last date that someone could start furlough leave for the first time was 10 June (there is an exception to this for those returning from statutory family leave).
- Until 30 June, staff must be furloughed for at least 3 weeks. From 1 July, employers will (when claiming the grant for furloughed hours) usually need to report and claim for a minimum of 1 week.
- While furloughed, staff can't work for you. This will change from 1 July, when you can allow staff to return on a part-time basis while still claiming from the scheme – however, from 1 August, you'll be required to make a contribution (see below).
- Employers can make claims to HMRC using an online portal.
Changes to the scheme
From 1 July 2020, furloughed workers will be able to return to work part-time ('flexible furloughing') and, from 1 August, employers will have to pay a percentage of the salaries of their furloughed staff. The scheme will close to new entrants from 30 June.
Changes to grant payments
From 1 August, the level of government grant provided through the scheme will be tapered, as follows:
- In August, the government will pay 80% of wages up to a cap of £2,500. Employers will pay the employer's minimum automatic enrolment pension contributions in respect of that 80% (unless the individual has chosen to opt-out or to stop saving into a workplace pension scheme), plus the employer's National Insurance contributions in respect of that 80%.
- In September, the government will pay 70% of wages up to a cap of £2,187.50. Employers will pay 10% of wages to make up the 80% total (up to a cap of £2,500). Employers must also pay the employer's minimum automatic enrolment pension contributions in respect of that 80% (unless the individual has chosen to opt-out or to stop saving into a workplace pension scheme), plus the employer's National Insurance contributions in respect of that 80%.
- In October, the government will pay 60% of wages up to a cap of £1,875. Employers will pay 20% of wages to make up the 80% total (up to a cap of £2,500). Employers must also pay the employer's minimum automatic enrolment pension contributions in respect of that 80% (unless the individual has chosen to opt-out or to stop saving into a workplace pension scheme), and the employer's National Insurance contributions in respect of that 80%.
Flexible furloughing
From 1 July:
- Employers can bring back to work staff who have previously been furloughed for any amount of time and any shift pattern, while still being able to claim under the scheme for their normal hours not worked. To be eligible for the grant, employers must agree with the individual any new flexible furloughing arrangement and confirm that agreement in writing. For worked hours, staff will be paid by their employer subject to their employment contract and employers will be responsible for paying the tax and NICs due on those amounts.
- Employers can claim the grant for the hours their staff are not working, calculated by reference to their usual hours worked in a claim period. Employers will be required to submit data on the usual hours an individual would be expected to work in a claim period and actual hours worked. See steps to take before calculating your claim. When claiming the grant for furloughed hours, employers will need to report and claim for at least one week. This is a minimum period and those making claims for longer periods will be able to do so.
Staff can be flexibly furloughed more than once.
Where a previously furloughed individual starts a new furlough period before 1 July, this furlough period must be for a minimum of 3 consecutive weeks, even if this ends after 1 July; e.g. if a previously furloughed individual starts a new furlough period on 22 June, they'd have to stay furloughed until at least 12 July. After this, they can then be flexibly furloughed for any period.
If you flexibly furlough staff, they cannot do any work for you during time that you record them as being on furlough.
Closure to new entrants
The scheme will close to new entrants from 30 June. From 1 July, the scheme will only be available to employers that have successfully used the scheme for staff they have previously furloughed for a full, consecutive 3-week period prior to 30 June.
This means that the final date by which an employer could have furloughed someone for the first time was 10 June, in order for the minimum 3-week furlough period to be completed by 30 June. Employers will have until 31 July to make any claims for the period up to 30 June.
The number you claim for in any single claim period starting from 1 July cannot be more than the maximum number you claimed for under any single claim you made before 30 June.
There is an exception to this for those returning from statutory maternity, paternity, adoption, shared parental or parental bereavement leave. They can be furloughed for the first time even if they return after 10 June if:
- they started family leave before 10 June;
- they were on your PAYE payroll on or before 19 March 2020 (i.e. an RTI submission to HMRC must have been made on or before 19 March 2020); and
- you've furloughed any other person in your organisation at any time between 1 March and 30 June, and claimed for them.
From 1 July, claim periods will no longer be able to overlap months. Employers will be able to make their first claim under the changed scheme from 1 July.
Qualifying for the scheme
You must:
- be a UK business that's severely financially affected by coronavirus;
- have created and started a PAYE payroll on or before 19 March 2020;
- have a UK bank account; and
- not receive any public funding (though there are some exceptions to this).
What does 'severely financially affected' mean?
This hasn't been clearly defined and interpretations will vary. However, GOV.UK guidance states that the scheme:
"...is designed to help employers whose operations have been severely affected by coronavirus (COVID-19) to retain their employees and protect the UK economy. However, all employers are eligible to claim under the scheme and the government recognises different businesses will face different impacts from coronavirus."
We can't be certain, but this seems to suggest a fairly broad interpretation will be acceptable.
What will the scheme pay?
- In June and July, the government will pay 80% of an individual's regular wage up to a cap of £2,500 per month, plus the associated employer National Insurance contributions (NICs) and minimum automatic enrolment employer pension contributions on the subsidised wage.
- In August, the government will pay 80% of wages up to a cap of £2,500. From this point onwards, you will have to pay the employer's minimum automatic enrolment pension contributions in respect of the 80% (unless the individual has chosen to opt-out or to stop saving into a workplace pension scheme), plus the employer's NICs in respect of the 80%.
- In September, the government will pay 70% of wages up to a cap of £2,187.50. You will pay 10% of wages to make up the 80% total (up to a cap of £2,500), plus the NICs and pension contributions as per August.
- In October, the government will pay 60% of wages up to a cap of £1,875. You will pay 20% of wages to make up the 80% total (up to a cap of £2,500), plus the NICs and pension contributions as per August and September.
For flexible furloughing arrangements, the wage caps are proportional to the hours an individual is furloughed; e.g. an individual who is flexibly furloughed in August is entitled to 60% of the £2,500 cap if they are placed on furlough for 60% of their usual hours.
Guidance on both the scheme and furloughing are available on GOV.UK
Furlough leave
Here are some FAQs about the key aspects of furlough leave. Keep in mind, though, that the closure of the scheme to new entrants means that, for the most part, you will only be able to furlough staff who you have already successfully furloughed.
What is furlough leave?
It's a new form of leave in UK employment law. It essentially means a leave of absence that both you and your staff agree to. It's meant as a temporary period during which they're required not to work.
Which types of staff can be put on furlough leave?
Any of the following, on any type of contract, provided they're paid via PAYE and were on your payroll (and HMRC were notified of this on an RTI submission) as of 19 March 2020:
- Employees (including directors with service agreements)
- Workers under a contract to provide services to you (provided you aren't their customer/client)
- Agency workers (including those employed by an umbrella company)
- Apprentices
- Salaried members of Limited Liability Partnerships; and
- Company directors (without a service agreement) and other salaried directors of their own personal service companies. For annually paid directors, there must be an RTI submission on or before 19 March 2020 relating to a payment of earnings in the 2019/2020 tax year.
It doesn't apply to self-employed staff.
There are some exceptions to the 19 March on-payroll requirement – see below.
What about staff who've already been let go?
You can still furlough individuals who were on your payroll as of 28 February 2020 (and HMRC were notified on an RTI submission) and:
- were put on unpaid leave or unpaid sabbatical after 28 February; or
- were made redundant, or stopped working for you (e.g. resigned to take another job that later fell through), after 28 February 2020. However, you must rehire them first. You don't have to have rehired them before 19 March. This can include individuals you've given redundancy notices to but haven't yet officially left the business, so long as the reason for the redundancies are connected to the pandemic, otherwise it's currently unclear if you can furlough them.
If they were on unpaid leave or unpaid sabbatical on or before 28 February they can be furloughed after the agreed or contemplated duration of their leave/sabbatical has ended.
A person on a fixed-term contract can be re-employed, furloughed and claimed for, if either:
- their contract expired after 28 February 2020 and an RTI payment submission for the person was notified to HMRC on or before 28 February 2020; or
- their contract expired after 19 March 2020 and an RTI payment submission for the person was notified to HMRC on or before 19 March 2020.
If the person's fixed-term contract has not already expired, it can be extended, or renewed. You can claim for them if an RTI payment submission for the employee was notified to HMRC on or before 19 March 2020.
What about TUPE?
A new employer can claim under the scheme for employees of a previous business who were transferred under the Transfer of Undertakings (Protection of Employment) Regulations after 28 February 2020.
In order to claim in these circumstances, either the new or previous employer needs to have previously furloughed the employees at any time between 1 March and 30 June, and claimed for them.
If it was the previous employer, the maximum number of employees that the new employer can claim for will be the total of both:
- the maximum number of employees the new employer claimed for in any one claim ending on or before 30 June; and
- the number of employees that are being transferred to them who were previously furloughed (and claimed for) by the previous employer. This is subject to the maximum cap the previous employer was subject to.
How are they put on furlough leave?
You can only do it if you both agree to it – you need their agreement because it'll change the terms of their contract. Our new Letter putting a worker or employee on furlough leave is a way of recording their agreement.
You must discuss using the scheme with them beforehand. If you intend to use the scheme for 20 or more employees from one place of work, you will probably need a collective consultation process.
Be careful not to discriminate when selecting which staff to furlough. But it's likely that you'll be able to justify furloughing staff who are disabled and have high-risk underlying health conditions, or older staff in high-risk groups.
Can furlough leave be rotated or used more than once?
Yes, you can rotate it among individuals, or put them on it more than once (provided each instance is for the minimum required period). But, remember that (except for those returning from statutory family leave) the last day people could be put on furlough for the first time was 10 June.
Can they do any work while on furlough leave?
Flexible furloughing will apply from 1 July 2020. Note that if you flexibly furlough staff, they cannot undertake any work for you during time that you record them as being on furlough.
Before then, staff are not allowed to work for you while on furlough leave. They can do volunteer work or training, as long as this doesn't provide a service to you or generate any revenue for you.
Note the following:
- Staff who are union or non-union representatives may undertake duties and activities for the purpose of individual or collective representation of employees or other workers. However, in doing this, they must not provide services to or generate revenue for you, or on your behalf.
- While they are furloughed, employees who are pension scheme trustees or trustee directors of a corporate trustee may undertake trustee duties in relation to the pension scheme. However, a professional, independent pension scheme trustee who has been furloughed by the independent trustee company cannot undertake trustee work that would provide services to or generate revenue for, or on behalf of, the independent trustee company.
- Where furloughed directors need to carry out particular duties to fulfil the statutory obligations they owe to their company, they may do so provided they do no more than would reasonably be judged necessary for that purpose, i.e. they should not do work of a kind they would carry out in normal circumstances to generate commercial revenue or provides services to or on behalf of their company. This also applies to salaried individuals who are directors of their own personal service company.
Can I recover payments for the apprenticeship levy or student loans from the scheme?
No, these cannot be recovered from the scheme and you must continue to pay them.
Can I recover from the scheme any statutory family leave payments?
No, these need to be reclaimed in the usual way from HMRC. This includes employees currently on maternity leave, paternity leave, shared parental leave, adoption leave or parental bereavement leave. However, if an employee was furloughed and then started one of these types of leave on or after 25 April 2020, you may need to calculate the employee's average weekly earnings differently for the purposes of the statutory payments for these types of leave. GOV.UK contains links to specific guidance on this for each of these types of leave.
You can claim through the scheme for any enhanced maternity, paternity, adoption, shared parental or parental bereavement leave pay that you offer as part of an employee's contract.
If your employee is getting Maternity Allowance while they're on maternity leave, they should not get furlough pay at the same time. If your employee has agreed to be put on furlough, tell them to contact Jobcentre Plus to stop their Maternity Allowance payments. If your employee agrees to be put on furlough and end their maternity leave early, they will need to give you at least 8 weeks' notice and they will not be eligible for furlough pay until the end of the 8 weeks.
Can I 'top up' the remaining balance?
Yes, but you do not have to.
If you do, you'll have to pay the amount of their earnings that's not covered by the grant (the top-up amount), plus employer National Insurance contributions and automatic pension enrolment contributions on the top-up amount. The amounts could be substantial if their gross wage is more than the monthly wage cap.
What if they have more than one employer?
Each job is separate, and the cap applies to each employer individually.
Can they be put on furlough leave while on sick leave?
They shouldn't normally be furloughed if they're on sick leave for a short time. If you have a business reason to furlough them, they can be furloughed as long as you stop paying them sick pay. Or, you could wait until their sick leave ends before furloughing them.
If the individual becomes sick while furloughed, they retain their right to Statutory Sick Pay (SSP). This means that furloughed employees who become ill must be paid at least SSP. It is up to you to decide whether to move these employees onto SSP or to keep them on furlough, at their furloughed rate.
If they are moved onto SSP, you can no longer claim for the furloughed salary. You're required to pay SSP yourself, although you may qualify for a rebate for up to 2 weeks of SSP. If instead you keep them on furlough at the furloughed rate, you remain eligible to claim for these costs through the furlough scheme.
Can they use their annual leave while on furlough leave?
Yes. If this happens, they must be paid their full normal rate of pay (or if their pay varies, their average pay in the previous 52 working weeks, or 12 working weeks for employers in Northern Ireland). This will include any contractual overtime, commission or fees. It will mean you having to 'top up' the 80% grant by paying the additional 20% yourself.
In some circumstances, you can refuse or cancel their leave, or require them to take leave while furloughed. For more information, see GOV.UK.
If an employee usually works bank holidays, then you can agree that this is included in the grant payment. If the employee usually takes the bank holiday as leave, then you would either have to top up their usual holiday pay, or give them a day of holiday in lieu.
Will annual leave and continuous employment accrue while on furlough leave?
Yes.
Can you continue with any pre-existing disciplinary action while they're on furlough leave?
Yes. There is guidance from Acas about conducting disciplinary and grievance procedures during the pandemic, including against furloughed staff.
How to calculate claims
You should firstly calculate the relevant percentage of their salary. Your calculation should include any regular, contractual payments that you must pay. E.g.:
- Wages
- Compulsory overtime
- Fees
- Commission or bonuses
- Monetary benefits
If a worker has been paid variable payments due to working overtime, you can include these payments when calculating the relevant percentage of their wages, as long as the overtime payments were non-discretionary. Payments for overtime worked are non-discretionary if you are contractually obliged to pay the worker at a set and defined rate for the overtime that they have worked.
There's uncertainty, though, about which other payments of this type are covered by the scheme. A right to an annual bonus of a fixed amount would, for example, be covered, but this isn't very common. Bonuses are more usually paid if the business or the individual hit certain targets. Earlier government guidance suggested these payments would be covered, but more recent guidance suggests that they are not. The same applies to commission payments, where the payment varies depending on the amount of sales made.
Don't include payments that they are not contractually entitled to. This includes discretionary payments (e.g. tips, bonuses, commission) or other payments they only receive if you decide that they should, or if payments are conditional on something being done. Also don't include any non-monetary benefits, like taxable benefits in kind, such as:
- Company vehicles
- Private health insurance
- Non-business travel
- Entertainment expenses
- Other business assets that have significant personal use
Calculations differ depending on whether the individual's pay is fixed or varies.
Fixed pay
Use their actual salary before tax, paid in the last salary period ending on or before 19 March, to calculate the relevant percentage. If you've already based your calculation using 28 February (which a previous version of the government guidance said you should), you can still use that date for your first claim.
Variable pay
If you've employed them for 12 months before the claim, you can claim the higher of either:
- the same monthly amount paid last year in the equivalent month(s); or
- average monthly earnings from the 2019-20 tax year.
If you've employed them for less than 12 months, you can claim for an average of their monthly earnings since they started work. If they've been employed for less than a month, use a pro-rata calculation for their earnings so far to claim.
Claiming for a member of a Limited Liability Partnership
You must only include payments that are:
- fixed; or
- variable, but based on the overall amount of the profits or losses of the LLP; or
- not affected by the overall amount of the LLP's profits or losses.
Claiming for employees returning from statutory family leave
This includes employees returning from maternity leave, paternity leave, shared parental leave, adoption leave, parental bereavement leave or unpaid parental leave. Their salary should be paid based on earnings received before going on family leave, and not earnings they received while on family leave.
Claiming for employees or workers returning from a period of sick leave
Their salary should be paid based on earnings received before going on sick leave and not the sick pay received while absent on sick leave.
Claiming for those returning from a period of unpaid leave or unpaid sabbatical
Their salary should be paid based on earnings they would have received had they not been on unpaid leave/unpaid sabbatical.
You can use the government's Calculator to help with the calculations.
What if the percentage of pay is less than the National Living/Minimum Wage?
This is allowed, but if staff need to complete job-related training while on leave, you must pay them at least the National Living/Minimum Wage for the time spent doing it.
Similarly, apprentices can be furloughed in the same way as other employees and they can continue to train while furloughed. However, you must pay your apprentices at least the Apprenticeship Minimum Wage/National Living Wage/National Minimum Wage as appropriate for all the time they spend training. This means you must cover any shortfall between the amount you can claim for their wages through the scheme and their appropriate minimum wage.
National Insurance and pension contributions
Once you've worked out how much you can claim for the individual you've furloughed (for claim periods up to 31 July), use the figure to work out the amount of employer National Insurance Contributions and minimum automatic enrolment employer pension contributions you're entitled to claim for them.
Further reading
You should read the government guide on calculating how much you can claim and its example calculations document.
We also recommend reading the Treasury directions to HMRC, which contain the rules HMRC must use when considering claims. There are also sections on what to do if you have reorganised your PAYE after 19 March or for business transfers where the new employer is yet to set up a PAYE scheme.
Deciding on the length of your claim period
Your claim period is the days you are claiming a grant for.
There's no maximum length for claim periods that end on or before 30 June. You must make these claims by 31 July.
However, claims for any periods starting before 1 July must end on or before 30 June. This is the case even where those furloughed in June continue to be furloughed full time in July. You'll need to make separate claims to cover the days in June and the days in July that you want to claim for, even if people are furloughed continuously. This may mean that your claim periods will differ from the pay periods you use.
Claim periods starting on or after 1 July must start and end within the same calendar month and must last at least 7 days, unless you're claiming for the first few days or the last few days in a month. You can only claim for a period of fewer than 7 days if the period you're claiming for includes either the first or last day of the calendar month, and you've already claimed for the period ending immediately before it.
You can only make one claim for any period so you must include all your furloughed or flexibly furloughed staff in one claim, even if you pay them at different times. If you make more than one claim, your subsequent claim can't overlap with any other claim that you make.
You can claim before, during or after you process your payroll; you can usually make your claim up to 14 days before your claim period end date and do not have to wait until the end of a claim period to make your next claim. Claims for periods after 30 June can be made from 1 July.
When claiming for staff who are flexibly furloughed, don't claim until you're sure of the exact number of hours they'll have worked during the claim period. If you claim in advance and your employee works for more hours than you claimed for, you'll have to pay some of the grant back to HMRC.
See GOV.UK for more about claim periods.
What to do after you've claimed
Once you've claimed, you'll get a claim reference number. You must keep a copy of all records for 6 years, including the amount claimed and claim period for each employee; the claim reference number for your records; and your calculations in case HMRC need more information about your claim. For flexibly furloughed individuals, you'll also need to keep records of the usual hours worked, including any calculations that were required, and of the actual hours worked.
Once HMRC have received your claim and you're eligible for the grant, you'll receive the grant by BACS payment.
You must pay all of the grant that you receive for their gross pay to the individual.
No fees can be charged from the money that is granted.
If you're unwilling or unable to pay an individual's salary, you must immediately return their grant to HMRC, including the employer national insurance contributions and pension contributions you received.
Their wages will be subject to Income Tax and National Insurance as usual.
What happens if you make a mistake when making a claim?
If you make a mistake in a claim that results in an overpayment, you must pay this back to HMRC. You can tell them about this as part of your next claim. You'll be asked when making your claim whether you need to adjust the amount down to take account of a previous error. Your new claim amount will be reduced accordingly. You won't need to do anything else, but you should keep a record of this adjustment for 6 years.
If you've made a mistake that means you've underclaimed, contact HMRC to amend your claim. They may need to do extra checks.
If you make a mistake but don't plan to submit further claims, HMRC are working on a process that will allow you to let them know about your error and pay back any amounts that you have overclaimed.
When the scheme ends
When the government ends the scheme, you must make a decision, depending on your circumstances, about whether you can retain your furloughed staff.
If not, you can consider putting employees on short-time working or lay off, others on unpaid leave, or if necessary, start a redundancy process.
Health and safety
See our Coronavirus (COVID-19) Health & Safety section to find out about new and existing responsibilities for protecting your staff during the pandemic.
Handling staff who refuse to return to work
Workplaces are reopening, but coronavirus hasn't gone away. Staff may remain reluctant or unwilling to return.
Primary objectives
To avoid any disputes, genuinely consider all objections. Put everything in writing. If necessary, make further enquiries to confirm or establish facts. Two key principals should guide your decisions:
- Protecting staff with medical conditions that mean, or may mean, they're at greater risk to/from infection. You're ultimately liable for their wellbeing.
- Following government guidance allowing all staff to work from home, where possible.
Using a grievance procedure
Any objection should be treated as a grievance. Acas say their code of practice, which you can follow alongside your own grievance procedure, still applies. However, consider whether you can do so fairly in the current situation. In particular:
- Consider the health of everyone involved in the procedure.
- You must observe social distancing rules: this probably means using video technology. Do all those involved have access to it? Does anyone have a disability or other issue that makes using it difficult, and if so, can you make reasonable adjustments?
- Avoid involving individuals who are currently furloughed, unless you're making use of new flexible furloughing rules (after 1 July).
- Will any necessary information (e.g. medical evidence) be obtainable?
Go through the options with all those involved. If you decide to proceed, put your reasons why in writing.
Employers in Scotland are expected to follow the principles of the Fair Work Convention's Framework, for all decisions.
Legal protection for employees
Employees (rather than other staff types, e.g. workers) are legally protected from suffering any detriment (e.g. not getting full pay) due to risks to their health and safety: in particular, if they believe there's a serious and imminent danger if they return to work. This can include danger caused by customers or other staff not following the rules, or by the risks of commuting on public transport.
It doesn't matter if you disagree – their belief (from their perspective) just needs to be reasonable. This would ultimately be judged by an Employment Tribunal, if things got that far – if successful, the tribunal could rule that, for example, they were entitled to stay at home on full pay rather than unpaid leave.
If you've followed all of the government's safety advice and can prove you have robust health and safety measures in place, the employee's belief is less likely to be reasonable. However, each case will depend on its own specific facts – e.g. if the employee has a particularly anxious character or you haven't properly communicated the safety precautions.
Keep this in mind when dealing with objections from your employees. They could use it to make unfair dismissal claims, no matter how long they've worked for you. If an employee points out this legal protection to you, or if you want to check your position generally, seek legal advice. Note that the law wasn't made with the pandemic in mind, so it's unclear how a tribunal will apply it.
Extremely vulnerable staff
UK government guidance for England states that extremely vulnerable people (i.e. those who have been told to 'shield' at home) are 'strongly advised not to work outside the home'. Terminology and advice in the other UK nations is broadly similar.
Requiring such staff to return to the workplace would be a considerable liability risk. If they can't work from home, keep them furloughed, or put them on sick leave (if they have a suitable medical letter stating they should remain at home). You could potentially give them work to do at home that's not their usual work, but the terms of their contract might mean you need their agreement.
Vulnerable staff
The UK government is encouraging other vulnerable staff employed in England to return if they're offered the safest available on-site roles and can stay 2 metres away from others at all times. This could involve adjusting their working times or duties.
There's leeway if some time has to be spent within 2 metres of others – you must assess the level of risk, and that level must be acceptable to both you and the vulnerable staff.
The other UK nations are so far taking a more cautious path and have stopped short of encouraging such staff to return.
If vulnerable staff don't want to return, consider letting them remain furloughed or take unpaid leave. If they want to return but you want them to stay at home, they'll be entitled to full pay.
Both extremely vulnerable and vulnerable staff could have a disability that's recognised under Equality Law. If they do, you're legally obliged to make reasonable adjustments. This probably includes letting them stay at home, though whether or not that means doing so on full pay is unclear. It's also possible that requiring vulnerable staff to return could amount to indirect discrimination – this can be justified, though it's likely to be difficult. See our sections on Disability discrimination in England, Wales and Scotland and Northern Ireland.
Staff living with someone who's extremely vulnerable or vulnerable
Government guidance for businesses in England states that "particular attention should also be paid to people who live with extremely vulnerable individuals". What this means in practice isn't clear.
If you need them to return, take the same precautions that you would for vulnerable staff. If they don't want to return, consider letting them remain furloughed. Otherwise, suggest unpaid leave.
Again, remember that the person with whom they live may have a disability that's recognised under Equality law – take care here, as you can't treat staff less favourably than others based on the disability of someone they're associated with.
Staff with other potentially dangerous health conditions
Someone could have a health condition that isn't listed as extremely vulnerable or vulnerable, but which the person claims is still potentially dangerous if they catch coronavirus.
If the condition is recognised as a disability under equality law, consider the advice above.
If it isn't, you don't have to make adjustments like letting them stay at home. But to be certain (and in line with your health and safety obligations), consider getting a medical report from their GP. If the report is inconclusive, follow it up with more questions.
If medical evidence suggests they're at greater risk, check this against your workplace risk assessment. If you both agree on a return, take the same precautions that you would for vulnerable staff.
If you both believe it may not be safe for them to return, keep them furloughed or suggest unpaid leave.
Staff suffering from anxiety
Some staff are likely to be anxious about returning amid coronavirus. Depending on the severity, anxiety can be a recognised disability. If so, they'll have a right to reasonable adjustments, which should entitle them to remain at home on furlough, sick leave or unpaid leave. Sick leave should be used if they're experiencing stress/anxiety at levels that mean they can't work.
Even if their condition isn't classed as a disability, consider delaying their return – they're unlikely to be productive in the workplace, and could be a disruptive influence.
Staff without childcare
With workplaces re-opening before schools, this will be a common problem. They can either remain furloughed, or – if you can offer it – work flexibly.
There are other options available only to employees:
- Unpaid parental leave: they can take leave of up to 4 weeks for each child per year in blocks of at least one week. They must give you at least 21 days' notice. This entitlement applies after a year of working for you. You can be flexible about how much leave they take or notice they give you: put any changes you agree in writing.
- Unpaid dependent care (or emergency) leave: they can take a reasonable amount (usually 1 or 2 days) of time off to take necessary action to look after their child. It's available no matter how long they've worked for you.
If none of the above is suitable, consider letting them take unpaid leave.
Note that you could be liable for sex discrimination, as a recent survey found that women have taken on the majority of childcare duties during the pandemic. Ensure that decisions are fair and consistent, unless you have a good business reason for different treatment.
See our sections on sex discrimination in England, Wales and Scotland, and Northern Ireland.
Members of the BAME community
Current medical evidence suggests that Black, Asian, and Minority Ethnic people have a far higher risk of death from COVID-19. The government has not so far produced any information on what extra measures are needed to protect them, except to say that you might need more emphasis on workplace social distancing and hygiene rules.
If such staff don't want to return, consider leaving them furloughed or letting them take unpaid leave.
If they do want to return, take the same precautions that you would for vulnerable staff.
To avoid potential liability under race discrimination laws, ensure that your decisions are fair and consistent, unless you have a good business reason for different treatment. Taking extra precautions for BAME staff compared to (non-vulnerable) white staff could be viewed as indirect discrimination – however, it is likely to be justified on the basis of the current medical research.
See our sections on race discrimination in England, Wales and Scotland, and Northern Ireland.
Staff who must use public transport
It's currently unclear if you'll be responsible for the health and safety of staff who must use public transport to commute to work.
You owe employees an unwritten duty of trust and confidence. You mustn't do anything to break this, which may include forcing them to take a risk and travel by public transport. They could resign and claim unfair (constructive) dismissal. However, this is so far untested in court.
Remember you have to make reasonable adjustments for staff with recognised disabilities, and carry out special risk assessments for those who are pregnant or new mothers – all of these situations require you to take travel into account.
The UK government has published guidance on how to travel safely using various forms of transport. It includes a checklist of how to plan a safe journey. Share this with staff, in case they haven't read it.
Consider any possible options that might help them avoid public transport, such as:
- giving them access to bikes or e-scooters
- fitting more bike storage points
- making more car parking spaces available.
If there is no other choice but to use public transport, try to let them alter their hours to avoid busy times. If possible, offer them personal protective equipment, e.g. masks, gloves.
If you can't persuade them, consider letting them remain furloughed or take unpaid leave.
Other reasons
If staff object for some other reason and you don't feel it's justified, write to them and tell them the reasons why you disagree.
If their objection was raised using your grievance procedure, inform them of their right to appeal your decision. Otherwise tell them they can raise a formal grievance using your grievance procedure (if they qualify).
Reassure and explore options
Try to reassure or help them to return, though this will depend on what you can reasonably do. E.g.:
- If you haven't already, show them a copy of your risk assessment and what action you've taken to make the workplace COVID-safe.
- Give them evidence of the safety changes that've been made to the workplace: videos and photos of the changes, or a training session on any new procedures.
- Ask if they'd like to speak to a colleague who's already returned.
- If it's relevant, offer temporary flexible working arrangements (such as earlier/later start-finish times).
- Offer another safe site they can work at.
- Offer them a safer role than their present one to do in the meantime.
Agreeing changes
If you agree changes to working conditions that affect the usual terms of their contracts, even for a temporary period, confirm it in writing.
Staff who refuse furlough or unpaid leave
If nothing you do convinces staff to return, a risk-free solution is to re-furlough them. If they don't qualify or agree, you could:
- ask or require them to use their annual leave;
- if they're an employee, use short-time working or lay off; or
- put them on unpaid leave.
Unless the terms of their contract or a previous furlough agreement says otherwise, neither of you have to agree to any of the above.
If you can't agree, you may have to issue a management instruction for them to return to the workplace. If they continue to refuse, consider starting disciplinary action against them (unless they're self-employed), warning them that continuous refusals may result in their dismissal.
If all other options fail, redundancy may be the only alternative.
Dealing with annual leave during COVID-19
Carrying over holiday
Staff are entitled to at least 5.6 weeks of annual leave per year. Ordinarily, only 1.6 weeks of that can be carried over (if you allow it). Temporary rules (the Working Time (Coronavirus) (Amendment) Regulations) now allow the remaining 4 weeks to be carried over into the next 2 holiday years.
The new carry-over right isn't automatic. It only applies where the pandemic has meant that it's not been reasonably possible to take some, or all, of the 4 weeks.
What 'reasonably possible' means isn't completely clear. However, government guidance lists factors you'll be expected to take into account. These include (among others):
- When your holiday year ends: e.g. if it ended during the height of lockdown and there wasn't time to take leave due to increased workload
- If business demand has risen due to the pandemic and they've had to continue working to cope with it
- Their role, e.g. they're a key worker
- Whether enough staff have been available to provide cover
The guidance doesn't mention movement restrictions and reduced travel options as examples of why taking leave wasn't reasonably possible. This suggests you could refuse holiday carry-over where that's the only reason.
However, elsewhere in the guidance (re. requiring leave to be taken while furloughed), it says you should "consider whether any restrictions the worker is under such as the need to socially distance or self-isolate would prevent the worker from resting, or enjoying leisure time, which is the fundamental purpose of holiday" (as defined in law).
It's safer to take a flexible approach – it'll likely also result in more rested and motivated staff.
You should:
- Give them the chance to take any holiday that can't be carried forward, before the end of your holiday year
- Take reasonable steps to ensure they can take as much holiday as possible in the correct holiday year
- Let them use carried-forward holiday first.
Holiday for furloughed staff
You can require furloughed staff to take holiday, as long as you give them proper notice (double the length of leave you want them to take). As mentioned above, this might not satisfy the fundamental purpose of holiday – although the guidance also says that, generally, furloughed staff shouldn't need to make use of the new carry-over rules because they can take leave while furloughed.
In light of that, it seems the safest time to require holiday to be taken is after the majority of lockdown restrictions are lifted, and not while staff must self-isolate.
Otherwise, staff may claim that this isn't true holiday and shouldn't count as part of their annual leave allowance (which could have a financial effect later if, say, they're made redundant). This is untested in law, and there's scope for a lot of legal argument. Another possible way to reduce the risk is to ask them for their written views or acceptance when giving them notice to take holiday. If they agree or say nothing, this may help you later.
If furloughed staff do take annual leave, you must pay them the correct holiday pay in the usual way. (e.g. For a full-time employee receiving 80% of their pay while furloughed, you'll need to pay the extra 20%.) If your financial situation means you can't afford to pay the difference, this is an example of where it's not reasonably possible for them to use their leave, and they should be allowed to carry it over.
Amendments to right-to-work checks
Right to work checks can now be made:
- Via video call; or
- By job applicants and existing workers sending scans or photos of documents via email or a mobile app, rather than sending originals.
You must still make the check and use the Employer Checking Service if acceptable documents can't be provided. The government has also updated its right to work guides.
Homeworking
The number of people working from home has soared during the pandemic. See our section on homeworking for the issues you need to think about while staff are working at home.
Data protection and coronavirus
The Information Commissioner's Office has created an information hub with guidance on how to tackle data protection issues regarding COVID-19.
You shouldn't ignore data protection issues during the pandemic – but if you're concerned that your data protection practices might not meet your usual standards or about delayed responses to information rights requests, the ICO have said they won't penalise organisations that they know need to prioritise other areas or adapt their usual approach.
Temporary changes to criminal record checks
England & Wales
The Disclosure and Barring Service has temporarily changed its guidelines for ID checking and subject access requests.
Also, people in eligible roles will be given free-of-charge DBS checks and/or a fast-track emergency checks.
They have also published factsheets and updated guidelines.
Scotland
Disclosure Scotland has suspended the payment of fees for urgent applications of certain priority workers, until 25 December. Any urgent applications can be made online.
The Coronavirus Statutory Sick Pay Rebate Scheme
This scheme will repay UK businesses the statutory sick pay (SSP) they've paid to eligible workers.
Rules of the scheme:
- Workers must be eligible for SSP – i.e.: already working for you, earning an average of at least £120 per week and been ill for at least 4 days in a row (including any days they are not working, e.g. the weekend).
- They must have received SSP when they had coronavirus, because they couldn't work as they were self-isolating at home or are shielding in line with public health guidance.
- You must have a PAYE payroll scheme that was created on or before 28 February 2020 and fewer than 250 employees.
Payments will be limited to a maximum of 2 weeks, starting from the first day they are sick.
Claims will be limited to recovering no more than the current SSP rate of £95.85 per week and you won't need a fit note from a doctor.
You must keep a record of all claims made to the scheme.
See GOV.UK for more information and to make a claim.
Staff expenses
There's new guidance on How to treat certain expenses and benefits provided to employees during coronavirus.
There's also clarification on Which expenses are taxable for staff working from home due to coronavirus.
Linked to this, the government have announced a planned tax and NIC exemption for coronavirus-related reimbursed home office expenses, which will apply from 11 June to amounts reimbursed on or after that date but before the end of the 2020-21 tax year.
Telephone and video Employment Tribunal hearings
In England, Wales and Scotland tribunal hearings are either being postponed or conducted by telephone and video conferencing due the pandemic.
There is a guide on HMCTS telephone and video hearings during coronavirus outbreak.
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