Against the backdrop of the COVID-19, running a business is extremely challenging not least the responsibility as an employer. To address some of those questions we are publishing a COVID-19 related employment law Q&As. It covers a range of employment topics including your health and safety obligations, the latest changes to statutory sick pay, furlough working, the current status of employment tribunals and the employment aspects of the Coronavirus Bill 2020.
Our thanks to Addleshaw Goddard for providing the Q&As.
For the latest guidance on furloughing trainees under the UK Government’s Coronavirus Job Retention Scheme; advice on trainee supervision; and other FAQs for training units please visit our main coronavirus update page and head to the section ‘Trainees and students’.
Employers have a legal duty to ensure the health and safety of employees and customers so far as is reasonably practicable. Businesses should not expose those individuals to a material risk i.e. one that is more than minimal or trivial. This duty is likely to extend to ensuring that staff are not placed at undue risk from COVID-19.
This has just been launched (20 March 2020) so that people unable to work for more than 7 days because of COVID-19 can obtain an isolation note through a new online service. The link is for employees to use.
This will effectively replace GP fit notes which are often required once self-certification for the first 7 days expires, and will be used as evidence that they have been asked to self-isolate either because they have COVID-19 symptoms or live with someone who has symptoms.
No, although it would be good to keep them for record-keeping purposes.
We would recommend that if HR is under strain to log all these notes, then the employer can ask the staff to retain the notes thus shifting the onus on to staff and away from HR.
The Coronavirus Amendment No. 2 Regulations
As of 17 March 2020 SSP has extended to a much wider group of people than ever before, to include those who self-isolate or are social distancing in accordance with Government guidelines. Reading the Government guidelines has now become more important, especially the social distancing guidelines of 16 March 2020.
The latest amendments extend SSP entitlement to individuals self-isolating because a member of their household has symptoms, and those falling within the vulnerable categories of individuals strongly advised in government guidance to work from home.
This very much depends on the drafting of the relevant company sick policy. If discretion to pay CSP is retained in the contract/policy, there is no obligation to pay as the employee is not sick. If, however, CSP is payable in the event that SSP is payable then CSP would be payable.
Remember though that there could be discrimination issues to take into consideration, for example in relation to pregnancy.
The scheme was set up to allow UK employers to access support to continue paying part of their employees’ salary for those that would other have been laid off during the crisis (“laid off” has not yet been defined). All UK businesses are eligible to participate including small or large, charitable or non-profit. It will be backdated to 1 March 2020. From 1 July 2020, businesses will be given the flexibility to bring furloughed employees back part-time. From August 2020 the level of government grant provided will be slowly tapered off in the lead up to it ending at the end of October 2020.
See the latest updated furlough information from Govt
How does it work?
- Employers will need to designate “furloughed workers” and notify them of this change – this ultimately comes down to changing Ts &Cs of employment.
- Employers will then submit information to HMRC about the furloughed workers and their earnings though a new online portal (which is currently being set up). It is limited to those on PAYE including those on zero-hour contracts.
- HMRC will reimburse 80% of furloughed workers’ wages up to a cap of £2,500 per month (HMRC are setting up this reimbursement scheme).
What happens to furloughed workers?
- They remain on payroll but must not undertake any work for the employer. It is not clear whether furloughed workers would be able to work for another employer while being furloughed; we will have to wait until details emerge.
- Employers have no obligation to make up the shortfall in wages.
- Choosing who will be will be furloughed and how employers go about this process will require careful thinking and planning as it involves changing the Ts&Cs of the proposed furloughed workers.
- Obtaining consent and documenting this process will be crucial: consultation with employees is recommended (claims could potentially follow if workers claim they should not have been furloughed or were furloughed w/o procedure).
- Redundancy can be offered as an alternative so that consent may be more forthcoming from employees.
- Collective consultation obligation may also be triggered under s.188 TULRCA if the employer intends to furlough more than 20 employees and it intends to dismiss them if they do not obtain consent from those employees.
- Although employers do not have to make up the shortfall in payment, employers may consider doing this.
- Priorities for furloughing may include:
- Those who are unable to effectively carry out their roles due to the current situation.
- Those not in business critical roles.
- Those with less than 2 years’ service.
- As always, employers need to consider discrimination angles (both direct and indirect).
You can read more in the UK Government guidance on the Coronavirus Job Retention Scheme.
This is something that employers are considering given the reduced demand for their staff. For example, some of the high street retail and hospitality chains are in discussions with supermarket employers about putting in place secondment arrangements whereby the retail staff are seconded to a supermarket to cover the latter’s high demand for staff.
What are lay-offs and short-time working?
You can consider lay-offs or short time working if there is an express provision in the employment contract. There will be a breach of contract where the employer lays off employees or puts them on short-time working without the contractual right to do so.
Laying off employees means the employer provides employees with no work (and no pay) for a period whilst retaining them as employees; short-time working means providing employees with less work (and less pay) for a period while retaining them as employees.
If you don’t have an express clause permitting lay-offs and short-time working
The right to lay-off must be permitted in the employment contract otherwise it will amount to a fundamental breach of contract allowing the employee to resign and claim constructive dismissal.
A term can be implied into the contract if there is a custom of laying off that is 'reasonable, certain and notorious' and is such that 'no workman could be supposed to have entered into service without looking to it as part of the contract': Bond v Cav Ltd 1983 IRLR 360, QBD.
ACAS advice on 'Lay-offs and short-time working' states if the employee has been laid off in breach of their employment contract, the employee may:
- choose to accept the breach of contract and treat the contract as continuing, while claiming a statutory guarantee payment;
- sue for damages for breach of contract either in civil court or at ET;
- claim for unlawful deduction of wages; or
- claim that the employer's action amounted to dismissal, constructive or otherwise.
Definition of lay-off
A week of lay-off occurs when an employee, whose contractual remuneration depends on his or her being provided by the employer with work of the kind which he or she is employed to do, is not provided with such work, with the result that he or she is not entitled to any remuneration for that week: s.147(1).
If the employee's remuneration does not depend on his or her being provided with work, the lay-off provisions do not apply.
Definition of short-time working
A week of short-time working occurs if there is a diminution in the work provided by the employer, and as a result, the remuneration for any week is less than half a 'week's pay': s.147(2).
Short-time working is often described as a form of partial lay-off and can occur where the employer maintains its operation on a reduced scale e.g. on two out of five days, in order to eke out what little work is available.
Statutory holiday entitlement is unaffected by any period of lay-off or short time working, and an employee can therefore take holiday during this time and be paid his or her normal rate of pay.
Statutory redundancy payment
If an employer exercises an express or implied right to lay off an employee or put them on short-time working, in certain circumstances, the employee becomes entitled to claim a statutory redundancy payment: s135(1)(b). Those circumstances are where the employee:
• Satisfies the qualifying conditions to bring a claim by having the required length of service and having been laid off or kept on short-time working for the required length of time.
- Follows the statutory scheme set out in ss.147 to 154.
Under certain circumstances, the employee may be entitled to holiday pay and notice pay.
Statutory guarantee payment
An employee may be entitled to a statutory guarantee payment on up to 5 "workless days" in a three-month period. A "workless day" is a day during any part of which the employee would normally be required to work in accordance with their contract, when the employee is not provided with work by their employer because of either of the following:
- There is a reduction in the requirements of the employer's business for work of the kind which the employee is employed to do.
- There is any other occurrence which affects the normal working of the business in relation to this type of work.
An employer may give notice ordering a worker to take statutory holiday on specified dates: reg 15(2). Such notice must be at least twice the length of the period of leave the worker is being order to take: reg 15(4).
This default notice provisions above can be amended or dis-applied, but only by a "relevant agreement", which means a written contract (including an employment contract), a collective agreement that is incorporated into the worker's contract, or a workforce agreement: reg.15(5) and reg 2.
This is about changing Ts & Cs which means you would ideally consult with employees and obtain their agreement to the change.
If the change is positioned appropriately, there is reasonable likelihood of obtaining consent from employees as they would rather take a pay cut than face redundancies. For those who object, there is the option of “dismiss and re-engage”: Another consideration is National Living Wage (NLW) and whether there is scope to cut by a certain % without breaching the NLW.
Two scenarios are envisaged:
i) offer was made and accepted by the employee(s);
ii) offer was made but not yet accepted by the employee(s).
i) The contract is binding on the parties but the employer can simply give notice to terminate the contract. Alternatively, the employer can agree to defer the start date with the employee.
ii) The employer can withdraw the offer given that it has not yet been accepted.
If the salary increase has been communicated as being from a specified date and without any conditions attached to it, then it will be binding. Please see above advice regarding salary reduction.
From Monday 23 March 2020 all in-person employment tribunal hearings (hearings where the parties are expected to be in attendance at a tribunal hearing centre) listed to commence on or before Friday 26 June 2020 are to be converted to telephone case management hearings or other electronic means which will take place (unless parties are advised otherwise) on the first day allocated for the hearing. If the case is set down for more than one day then parties should proceed on the basis that the remainder of the days fixed have been cancelled.
This direction also applies to any hearing that is already in progress on Monday 23 March 2020 and, if not already address before then, the parties may assume that the hearing on that day is converted to a case management hearing of the kind referred to above. In-person hearings listed to commence on or after 29 June 2020 will remain listed, in the meantime, and will be subject to further direction in due course.
Rule 46 ET Rules allows any hearing to be conducted by electronic communication (including telephone), provided the tribunal considers it just and equitable to do so, and where a hearing is to be in public, members of the public can hear what the tribunal can hear and see any witness a seen by the tribunal. The Presidents strongly encourage tribunals and parties to use electronic methods where this is feasible and compatible with the overriding objective.
s.4 ET Act allows claims that would ordinarily be heard by a panel of three to be heard by an employment judge sitting alone or with one lay member, if the parties consent. Judges are encouraged to explore with parties whether such consent may be forthcoming.