How do we treat parents who can't work due to school issues? How does the Job Support Scheme work? And what about sick pay? Read our Covid-19 HR Frequently Asked Questions.
Covid and HR issues
This guidance examines how Co-operatives UK members can approach situations linked with the spread of Covid-19. We examine important issues including leave, pay and furloughing - and provide responses to the most frequently asked questions.
Things to consider
Leave and pay
Organisations may already have provision in their contracts, policies and any collective or workplace agreements for the treatment of employees on leave. Regardless of contractual position, co-ops may wish to consider a pragmatic response to employee requests for leave to help prevent unnecessary spread of infection. This may mean that in some circumstances it may be best to grant paid leave to employees self-isolating, even where they are not personally unwell.
The UK has implemented legislation adding coronavirus to the list of notifiable diseases.
Members of the CEA National Retail and Managerial Agreements should note the provision in those agreements for paid special leave for employees who have been compelled by a medical authority to be absent from work following contact with a notifiable disease. Where societies have local collective agreements, or sick pay policies which derive from former national agreements, they may contain a similar provision.
Self isolation and notifications from the NHS Covid-19 app
The requirement to self-isolate may be triggered in 4 circumstances:
- Developing symptoms
- A positive test result
- Living with someone with symptoms or who has a positive test result
- Being contacted by NHS test and trace by email, phone or by letter and notified of ‘close contact’ with someone who has had a positive test result.
From 16 August 2021 in England, people fully vaccinated or under 18, will not need to self-isolate following close contact with someone who has COVID-19. They’ll still need to take a PCR test and self-isolate if it’s positive.
Between now and 16 August 2021 some critical workers who are identified as ‘close contacts’ but are fully vaccinated and are asymptomatic may be able to attend work provided measures are taken to minimise risk of transmission including PCR testing followed by daily lateral flow testing before beginning work.
There is a process involved and this is not a blanket exemption – your employer must have applied and received a letter from the relevant government department naming the employees who are. For further information see the Government guidance here.
Government has also announced that food distribution depot and food manufacturers (but not shop or supermarket workers) will be exempted from isolation requirements arising from close contacts, regardless of vaccination status. The exemption appears to relate to a number of specific locations which has not been published yet. We will update this when further information becomes available.
Presently, people displaying symptoms of a high temperature, a new, continuous cough or who have lost their sense of smell or taste (or it’s changed) should self-isolate and get a PCR test.
If the PCR test is positive, then that person must self-isolate for 10 whole days beginning the day after their symptoms started.
If the outcome of the PCR test is negative, and no-one else in their household has symptoms or has tested positive, then you can return to work if well enough.
Where an asymptomatic person tests positive for coronavirus (for example through a lateral flow test then followed by a positive PCR test) then their 10-day isolation period begins from the date of the test result.
People who currently live in the same household as someone with COVID-19 symptoms, or with someone who has tested positive for COVID-19 are also required to self-isolate for 10-days from the onset of their other householder’s symptoms developing. The 10-day period may have to be re-started if they themselves develop symptoms and then test positive.
No, where one of the four circumstances outlined above triggers the requirement to self-isolate, and employer is aware that those circumstances have been triggered, the employer must not knowingly allow the worker to attend work otherwise they commit an offence under the relevant regulations.
A notification or ‘ping’ from the App does not trigger the legal obligation to self-isolate. The legal requirement to self-isolate is only triggered in the following four circumstances:
1. Developing symptoms
2. A positive test result
3. Living with someone with symptoms or who has a positive test result
4. Being contacted by NHS test and trace by email, phone or by letter and notified of ‘close contact’ with someone who has had a positive test result.
From a legal perspective they can, however this carries a risk of transmission.
Some staff are certain for one reason or another that they have been inappropriately pinged. Some employers are managing the risk of transmission in these circumstances through undertaking a risk assessment. This involves investigating whether or not there may have been close contact (both at work and outside of work) and daily testing where it is concluded that there has not been close contact despite the ping (for example where the ping relates to a period where the person was not near their mobile phone).
Such arrangements are perfectly legal although, as set out above, carry with them a risk of potential transmission depending on the circumstances. The requirement to self-isolate will still be triggered in the four circumstances explained above and cannot be overridden by a risk assessment.
Test and trace FAQs
The test and trace process and any resulting requirement to self-isolate will trigger SSP (where the person qualifies for SSP). Contractual sick pay may also need to be considered. More FAQs above on self-isolation.
Quarantine rules FAQs
There are different rules for re-entering the UK which depend upon where you have been in the 10 days before you arrive. The rules are known as the traffic light system.
If people have travelled for holiday purposes, and are required to quarantine, they would need to book and agree holiday or other leave with their employer to cover both their holiday and quarantine period. If people could work effectively from home during their quarantine period, that may be an option to consider. If not, some other arrangement may need to be considered.
There is no legal entitlement to pay. SSP is not triggered unless they become unwell. Contractual sick pay is unlikely to be triggered. If people could work effectively from home during their quarantine period, then that may be an option to consider which would mean they could continue to be paid. But if not, some other arrangement may need to be considered, which may include unpaid leave.
An employer can refuse a leave request made by an employee and this may be on the grounds that the period is excessive. The quarantine requirements create a unique situation where an employer may refuse leave but if it is then taken would be obliged not to allow the employee to return to the workplace for the quarantine period. If an employee takes leave which was not permitted we recommend taking individual advice on the particular situation before determining what action you may be able to take where an employee took unauthorised leave.
Job Retention Scheme FAQs
From Step 4 (19 July 2021) all legal restrictions including the requirement to distance are removed. Employees are no longer advised to work from home where they can although the Government recommends a phased return to the workplace. The obligation is now upon employers to work safely. A risk assessment will be necessary.
Returning to work safely will mean following the new guidance as applies to the particular workplace. You will need to follow the guidance here dependent on the type of workplace.
Generally, the answer is yes. The Working Time Regulations 1998 introduced a statutory right to annual leave. It also set out the minimum period of notice to be provided by the employee and the employer when taking annual leave. The period of notice required must be at least twice as long as the period of annual leave to be taken.
Therefore, unless there is an agreement to the contrary within either the contract of employment or in a collective agreement between the employer and a recognised trade union, an employer can require an employee to take a period of statutory annual leave, provided they give the employee the required notice. For example, one week's annual leave will require two weeks’ notice.
In practice most contracts of employment will refer to a policy (perhaps in a staff handbook or on an internet) which sets out the procedure for booking holidays. While this will set out the procedure for an employee booking a holiday, it will not ordinarily override the employer’s right to rely on the provisions of the Working Time Regulations in requiring the employee to take a period of annual leave.
Holiday leave will continue to accrue during furlough as employees still retain employed status.
Unless there is a provision within the contract of employment (or perhaps an applicable relevant or collective agreement) an employer doesn’t have to agree to such a request. However, where it doesn’t cause any inconvenience, an employer should consider agreeing to such a request, especially if there is work for the employee to carry out at a time when there is an increased level of absence..
It should be taken into account that employees must be allowed to take their full statutory annual leave entitlement and allowing numerous employees to cancel holiday entitlement may create issues towards the end of the annual leave year. It may be possible, in agreeing to allow an employee to cancel their current annual leave arrangements, to enter into an agreement which allows the employer to be able to require the employee to take a period of leave at a later date when convenient to the business.
Yes. Government has announced that the European working time element of leave (which is the basic four weeks), can be carried forward into the next two holiday leave years. This does not mean it must be, but it will be permitted if you choose to do this. The remaining 1.6 weeks of leave under the Working Time Regulations can only be carried forward into the following leave year. Any other leave over and above the 5.6 weeks referred to above will be subject to your usual policies or rules.
Any employee diagnosed with or suspected of being infected with coronavirus will need to remain isolated from the community and not come to work. They should be treated as being sick for the purposes of sick pay, even if in the normal course of things they wouldn’t be considered sufficiently unwell so as to necessitate being off work. Statutory Sick Pay (SSP) and contractual sick pay will need to be considered, together with any provisions you have at present or develop for special paid leave. If you are unsure which to operate in particular circumstances, take advice.
If there are any relevant pay clauses in contracts or collective agreements take advice on whether or not they would be triggered. In the absence of a relevant pay clause being triggered, there is no right for an employee who is not sick to be paid, however, members may wish to consider a pragmatic approach to prevent employees coming to work who are later identified as infected with the virus. This might include following the provisions in your sick pay policy, granting paid special leave, or allowing the employee to take annual leave.
Statutory Sick Pay (SSP) FAQs
People displaying symptoms of either a cough and/or a temperature should self-isolate for 10 days. They should be treated as being sick for the purposes of sick pay, even if in the normal course of things they wouldn’t be considered sufficiently unwell so as to necessitate being off work.
Government has SSP for coronavirus sickness a day one right and applied the changes retrospectively to 13 March 2020. Click here for government information on SSP.
For businesses employing 250 or less people up to 14 days SSP can be reclaimed. The government has further guidance around claiming SSP.
It is important to note that self-isolation and social distancing are not the same thing. The SSP regulations have been amended to make it clear that if you, or someone in your household, is symptomatic then you should self-isolate and SSP will be triggered. It is unlikely that contractual sick pay or any special leave will be triggered for people who are themselves asymptomatic, but follow the guidance to self-isolate.
Check contracts and take advice if you are unsure. If someone does not wish to come to work because they are following recommendations to limit social contact (regardless of the pausing of shielding advice) then they are unlikely to trigger any statutory or contractual right to leave other than unpaid leave, unless arrangements can be made to work from home.
Yes. Businesses are still obliged to pay employees if their place of work is temporarily closed and there is no option for them to work elsewhere, unless there is a relevant agreement to the contrary.
Employees can generally only be laid off where there is a clause permitting this in their contract of employment. It may be possible to agree to a lay off in circumstances where the employee is agreeable to this, as a measure to prevent their employer ceasing trading permanently. However, even where lay-off is agreed or there is a relevant clause in the contract, laying people off triggers a right to guarantee pay and may, after a period, trigger a right to a redundancy payment. The rules are complicated. Some generic guidance is available here.
Generally this would only assist as a short-term measure. We recommend specific advice is taken before implementing lay-off agreements. It would probably be better to consider the Coronavirus Job Protection Scheme first, rather than generic rules concerning lay-off. See the FAQs on the Job Support Scheme.
You will need to check your insurance policy to determine this or, if you have an agent, discuss it with them.
The ACAS Code of Practice on Disciplinary and Grievance Procedures requires an employer conducting either a disciplinary or grievance process to hold a meeting with the employee. In both instances the employee has a statutory right to be accompanied. In most instances where an employee is self-isolating (as opposed to actually suffering from COVID-19) and provided the period of self-isolation is likely to be no longer than 14 days, the most pragmatic approach will be to postpone the disciplinary or grievance hearing, especially if it is a disciplinary matter which isn’t likely to result in dismissal. However, in certain circumstances, where perhaps a manager can’t attend a hearing to conduct it, or where there may be a more urgent need to progress the matter, it may be possible to use an alternative method.
The purpose of holding a meeting is to afford an employee the opportunity to be heard. With regard to disciplinary proceedings, this will be to put forward an explanation or their version of events or, in respect of grievance proceedings, to explain or elaborate on any concerns or complaints. Therefore, provided the employee is afforded an opportunity to do this, it should be possible to conduct the disciplinary or grievance hearing by an alternative method, as would sometimes be the case if an employee was absent due to long term sickness. This alternative method could be video conferencing. It could also be by telephone conference call where all parties (including anyone accompanying) can dial in, although this alternative is likely to be more difficult and may not practical be for a number of reasons. Where you are considering conducting a disciplinary hearing by an alternative method you may wish to take specific advice.
The scheme provides six-month work placements aimed at those aged 16-24 on universal credit and deemed to be at risk of long-term unemployment. Funding available for each job will cover 100% of the relevant National Minimum Wage for 25 hours a week, plus the associated employer National Insurance contributions and employer minimum automatic enrolment contributions. The scheme is open for applications opened in August (2020) and will run until December 2021. Read the guidance material.
Further advice and guidance
- Read the government's guidance on the Covid-19 pandemic
- The NHS has issued advice to the public on how to avoid the spread of infections such as coronavirus, together with symptoms to look out for
- XpertHR have developed some information for employers on infectious diseases, including a number of frequently asked questions relating to how employers should protect their business and workforce from the coronavirus.
- Acas has published some advice for employers and employees on handling coronavirus at work
- There is further guidance and some information posters on the World Health Organisation website.