How do we treat employees who follow guidance to self isolate? What about parents who are off work because their child's school has closed?
This guidance note examines how Co-operatives UK members can protect employees from the spread of infection and how to approach situations linked with the spread of the virus. After being inundated with enquiries over recent days and weeks, we examine important issues including leave and pay - and provide responses to the most frequently asked questions.
This guidance has been developed to give some general advice around how members can protect employees from the spread of infection and how to approach certain situations linked with the spread of the virus. It is not intended to be comprehensive or to replace guidance issued by the UK Department of Health and Social Care and other authorities. There are links to further sources of information at the end of this guidance note.
This guidance note was last updated 6 April 2020 and will not necessarily address developments occurring since then.
Things to consider
Leave and pay
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.
The UK has now implemented legislation adding coronavirus to the list of notifiable diseases.
Other members should have regard to any provisions in their own contracts, policies and any collective or workplace agreements that are in place, in respect of treatment of employees on leave in relevant circumstances.
Regardless of the contractual position, members may wish to consider a pragmatic response to employee requests for leave, given the interests of our employees, businesses and communities in preventing 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.
Employers may wish to consider introducing some simple measures to assist employees with infection control, for example distributing antibacterial hand gel or displaying posters regarding correct handwashing techniques.
The advice from the WHO is not to wear a face mask unless you are unwell or you are taking care of someone who is. There is information on how to use masks correctly on their website.
Where possible, members may also wish to consider limiting or ceasing business travel to affected areas.
Business continuity planning
Employers should ensure that emergency contact details are up to date in case they need to advise employees that the workplace has had to close. Members may also wish to consider putting processes in place to allow non-customer facing employees to work from home should the need arise.
Frequently asked questions
How does the Coronavirus Job Protection Scheme work? Nb: This dropdown covers a range of furlough-related FAQs.
Under the Coronavirus Job Progtection Scheme HMRC will reimburse 80% of furloughed workers wage costs - up to a cap of £2,500 per month. Government has stated that to access the scheme you will need to:
- Designate affected employees as ‘furloughed workers,’ and notify your employees of this change - changing the status of employees remains subject to existing employment law and, depending on the employment contract, may be subject to negotiation
- Submit information to HMRC about the employees that have been furloughed and their earnings through a new online portal (HMRC will set out further details on the information required)
For a quick guide to the Coronavirus Job Protection Scheme, alongside other COVID-19 relief measures, see our Government Support for Business page.
Can I force employees to go on furlough?
Government has said that it may be 'a negotiation'. We await further guidance. If you have a contractual right in your employment contracts to lay people off work without pay, then you can lay them off. However, you will need to speak to them about pay. The scheme is placed as a means of avoiding being laid off on no pay or redundancy. If you speak to your employee and they are willing to be furloughed, then designate them as furloughed and they can be sent home from work. If they refuse, record their reason for refusal and take advice on what to do next. If they do not agree to be furloughed and you have no work for them, and you don't have a contractual right to lay them off, it is possible that redundancy may be triggered.
Want help with the furloughing process? We've produced a super handy template letter to send to employees who are being furloughed. Get it here.
Where can we get more information on the Coronavirus Job Protection Scheme and furloughing?
You can see summaries, aongside coverage of some issues not directly answered in the guidance, in the FAQs on this page. For government guidance, follow this link.
How will we claim for wages under the Coronavirus Job Protection Scheme?
There will be an online claim mechanism established by HMRC which they expect will be running from the end of April 2020. You will need to calculate the amount you wish to claim first and provide some basic details. HMRC retain the right to audit your claim so it is important to ensure you claim only what is allowed under the scheme.
How long will the scheme last?
The scheme will last for a period of at least three months from 1 March 2020. It may be extended. We await further announcements concerning any potential extendment.
How often can we claim?
One claim for every three weeks will be allowed.
How will it be paid?
By BACS transfer into your bank account.
How much can we claim and could we reduce a furloughed worker's pay to 80% normal salary or to the £2,500 cap?
Because you need the employee's agreement to place them on this leave, you could potentially also agree a temporary change in pay. This will increase the chance that they refuse to agree and therefore potentially mean redundancy becomes more likely. If you are unable to reach an agreement you should take further advice. Government has confirmed that 80% of usual monthly wage costs can be reclaimed plus employer’s national insurance contributions and minimum automatic enrolment employer pension contributions on that wage.
Is there criteria?
Yes. Although any UK business can claim, you must have created and started a PAYE payroll scheme on or before 2020 and have a UK bank account. The scheme does not apply to employees who were employed after 28 February 2020.
Could I increase a furloughed employee's pay before placing them on furlough?
You can, but it will not affect the amount you can claim.
Do we have to pass on all of the grant to the employee?
Yes. You cannot deduct anything and pass on all wages you claim for.
Could a self-isolating or shielding employee be furloughed?
Yes. They could (where there is a contractual right to lay off) be laid off or become redundant while they are on another form of leave, so they could be furloughed.
Can a person on sick leave be furloughed?
No, not unless (and until) their period of sick leave ends. A person could not be furloughed, therefore, whilst they are ‘self-isolating’ for a period of 7 or 14 days because that have, or a member of their household has, symptoms of coronavirus.
What if an employee is on, or about to take, maternity leave?
They must at least take the mandatory two weeks maternity leave following the birth of their baby - without exception. Employees could choose to carry on with their leave and retain what benefits (statutory or otherwise) they would normally be entitled to. There is nothing in the guidance preventing an employee exercising their right to return to work and being furloughed, if there is no work for them during the scheme period.
What is the situation if 80% pay means contracted hours pay falls below the national living wage rate?
Government has confirmed that furloughed employees are not entitled to the national minimum/living wage because they are not working. You can reduce pay to 80% even if this means the pay would, had they been working, fall below the national minimum/living wage. If an employee returns to work to undertake training (which is permitted) then the NMW/NLW must be paid for the period of training.
How much will we be able to claim for an employee who has fixed earnings?
You can claim 80% actual salary before tax as of 28 February 2020.
How much will we be able to claim for an employee whose pay has varied in the past
The amount you can claim for an employee who has been employed for a full 12 months prior to the claim, shall be equal to the higher of the same month’s earnings in the previous year, or average monthly earnings from the 2019-20 tax year. If they have been employed for less than a year, use their average monthly earnings for how long they have been employed, as what you can anticipate being able to claim back. If they started in February 2020, pro-rate their earnings so far. You can add employer’s national insurance contributions and minimum automatic enrolment employer pension contributions on the claim.
How do I furlough an employee on a zero-hours contract?
Follow the guidance above covering eemployees whose pay varies.
What can't I claim for?
You won’t be able to claim wages that you pay above the 80%, or employers NI on that, or any additional employer contributions you make to a pension scheme above the minimum auto-enrolment levels. The Government guidance states that you can claim for any regular payments you are obliged to pay your employees, including wages, past overtime, fees and compulsory commission payments. However, discretionary bonus (including tips) and commission payments and non-cash payments cannot be reclaimed.
Work has reduced but we still have some work. Can we partially furlough employees?
No. Once designated furloughed they should not work for you during the furloughed period. If they do work, you may not be able to claim reimbursement of wage costs under the scheme. This is the case even if they work for only an hour. A furloughed employee can take part in voluntary work or training without impacting the claim, so long as it does not provide services to, or generate revenue for, the organisation.
We can keep staff on full pay for three months. Does that disqualify us from the 80% reimbursement?
If you wish to protect your reserves to cover a potentially longer period, or other associated costs involved in the disruption caused by coronavirus, then it may be prudent to furlough employees who you do not require to work. There is nothing in the government guidance which suggests businesses cannot make a decision as to how best to access the scheme and under what circumstances, which appears to allow employers to protect reserves in order to safeguard their business.
Do we have to cease trading under the Job Protection Scheme? Do we have to furlough all staff or could it be some staff only?
No, you do not have to cease trading. You could maintain a lower number of working employees and furlough some staff in order to help keep the business running. You would need to consider a fair process to select who would be invited to be furloughed, perhaps seeking volunteers first. Take advice if you cannot attract sufficient volunteers.
Can we spend time seeking business and future projects while furloughed?
No, you cannot work whilst you are furloughed. Consider retaining sufficient staff to enable that activity to continue and furloughing others.
Could staff be furloughed more than once - returning to work in between?
To be able to claim, the period of furloughing must be three weeks or more. People can return to work and be furloughed again, but you can only claim for continuous periods of furloughing of three weeks or more.
Should we continue to make pension contributions during furloughing?
Yes. You should operate your payroll in the normal manner including your pension arrangements. If you speak to employees about changes to their employment terms during their leave - and they agree to the changes - then you could potentially change the way in which some ancillary benefits operate. However, you would need to ensure you do not fall below the statutory minimum pension provision under auto-enrolment. Note that you will not be able to reclaim any additional employer contributions you make to a pension scheme above the minimum auto-enrolment levels.
In a workers co-op, will the Coronavirus Job Protection Scheme cover directors?
The scheme potentially covers any employee and will be administered according to who is paid by PAYE. It would therefore cover a workers co-operative director who is also an employee.
Can an employer insist on employees taking holiday at certain times?
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.
Did you know... Holiday leave will continue to accrue during furloughing as employees still retain employed status.
Can an employee cancel pre-booked annual leave due to the COVID-19 outbreak?
As the Easter break and summer holiday season approaches, many employees will have made holiday arrangements and booked annual leave. As a consequence of travel restrictions and flight cancellations those employees may now wish to cancel their annual leave and take it later in the year. 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.
Can we let employees carry leave forward if they have been unable to take it due to coronavirus?
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.
Will emergency NHS volunteers be paid? Nb: This dropdwn covers a range of FAQs around volunteering.
There will be a mechanism to reclaim lost earnings, travel and subsistence costs. The lost earnings will not cover earnings you would have lost, even if you had not volunteered. You must therefore volunteer and give up paid economic activity. Employees who are at work, or furloughed, are likely to be covered. We will need to await legislation to see if self-employed or freelancers could be included. Given the clear intent to cover lost earnings, it is implicit that an employer can cease paying an employee who volunteers. The Bill mentions that there may be provisions over the amount, mechanism and limits on compensation for lost earnings.
At present, limited information has been published, other than how to volunteer. Some points are covered in Section 7, 8 and Schedule 6 of the Coronavirus Bill - find that here. We will update this section when we find more out, but in the meantime these FAQ’s set out what can be drawn from the Bill.
How long will the emergency NHS volunteers period last?
The provisions suggest two to four week periods within a 16 week period beginning from when the Bill is enacted. The provisions suggest you will only be absent for one period (of two to four weeks) within that 16 week period. Further 16 week periods could be added after the first runs out.
Do we have to accept a request for emergency volunteering leave?
Yes, unless you have less than 10 employees. If you have more than 10 employees, leave can only be denied in respect of certain limited occupations (employed by the Crown, by parliament or a devolved parliament, or a member of the police service).
What evidence can we require?
An emergency volunteering certificate will be issued by the relevant health or social care authority which will set out the period of emergency volunteering leave.
Will volunteers receive their other employmeent benefits during their period of volunteering?
Provisions state that terms and conditions of employment with employers will continue. The only exception to this is wages. Therefore, people who volunteer no longer need to be paid their wages, but must continue to receive their other contractual benefits.
How do we treat an employee who is identified as being infected with coronavirus?
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.
How do we treat employees who are told to self-isolate due to travel to infected areas?
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.
How do we treat employees who have a cough or temperature and follow the guidance to self-isolate for seven days?
People displaying symptoms of either a cough and/or a temperature should self-isolate for seven 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.
Isn’t the self-isolation advice open to abuse? Are there any measures we can take?
Potentially it is open to abuse, given the new arrangements for seven days isolation in cases of cough or temperature symptoms. However, people could in any event self-certify themselves for the first week of sickness absence, so arguably the provisions are no less open to abuse than existing sickness provisions. It is unlikely that there are any additional measures you can take in relation to this, compared to ordinary sickness leave. If you have evidence the system is being abused, take further advice on appropriate action.
We have insufficient employees in one area because of self-isolation, and are overstaffed in other areas due to the impact coronavirus is having on trade. Can we redeploy staff?
This may be possible, provided they agree. Generally, if a person is employed to do a job, you cannot compel them to do a different job. But it is likely people will take a pragmatic view in the circumstances and where there is a need they may be prepared to agree. Good communication and consultation will be key in these circumstances.
How do we treat parents who are off work because their child’s school has closed due to coronavirus?
In non-contact precautionary cases, and where there are no specific pay provisions in contracts, policies or collective agreements, members may not need to pay their employees, but may wish to consider other types of leave such as time off for care of dependants. However, this increases the risk that an employee may attend work, to find out later that they have been caring for an infected child. Members may wish to consider a pragmatic approach to prevent this. This might include following the provisions in your sick pay policy, granting paid special leave, or allowing the employee to take annual leave.
How do we treat parents who are off work because their child has been required to isolate?
If the child has had contact with an infected person and has been told to self-isolate and their parent needs to stay at home with them, take advice on whether or not any relevant pay clauses in contracts or collective agreements have been triggered. This situation is complicated, but if the relevant medical authorities require a child to isolate because of contact or potential contact with coronavirus, then this will potentially trigger SSP for their parent required to stay at home to look after them. The SSP regulations contains provisions for people to be deemed incapable from work in circumstances where they required to isolate their children because of contact or potential contact with Coronavirus. Take specific advice in these circumstances.
What do we do if an employee, who hasn’t been to a high risk area or been in contact with an infected person, doesn’t want to come to work due to fear of being exposed to the infection?
There is no obligation on an employer to pay an employee who does not come to work in these circumstances. If possible you may wish to consider temporary flexible working arrangements such as allowing the employee to work from home. Where this is not appropriate, you may wish to consider allowing the employee to take holiday or unpaid leave. If none of these options are available, employers could, as a last resort, consider action under their disciplinary procedure. Many commentators are suggesting that disciplinary procedures should not be operated and should be relaxed in all the circumstances. This is a policy decision for individual co-ops to make.
What if someone won’t come to work because they fear being exposed to coronavirus because they are in a high risk category or live or care for someone in a high risk category?
Where people live with someone in a high risk category consider the government guidance on vulnerable groups. In cases of sharing a household with a member of a vulnerable group, the situation is the same as the example given above. However, in terms of developing your policy, do have regard to the pressure employees in these circumstances will feel under. This is particularly the case in circumstances where widespread news commentary is circulating, expressing views on whether or not the recommendations from Government and Public Health England are sufficient. Some employers are supporting employees in these circumstances. Again, it is a policy decision for individual co-ops to make.
Where the employee is a member of a vulnerable group, your duty of care for their health would need to be considered by you as an employer. For example, in relation to a pregnant employee, the HSE's guidance is as follows:
Action 1: Temporarily adjust her working conditions and / or working hours; or if that is not possible
Action 2: Offer her suitable alternative work (at the same rate of pay) if available; or if that is not possible
Action 3: Suspend her from work on paid leave for as long as necessary to protect her health and safety, and that of her child
However, the Employment Rights Act 1996 provides that, where appropriate, suitable alternative work should be offered (on the same terms and conditions) before any suspension from work. Guidance from HSE in respect of such risk assessments specifically refers to considering risks such as "biological agents" and states as an example "infectious diseases."
It is possible that, if there are no alternatives which can be adopted, any member of a vulnerable group who works in an environment which places them in a coronavirus risk which cannot be addressed by following the government's guidance, may need to be suspended on full pay in order that you can fulfill your duty of care towards them.
Is Statutory Sick Pay (SSP) now a day one right or do we still apply three waiting days?
Government has stated that SSP will become a day one right and this will be contained in the COVID-19 Emergency Bill. Please note that in communications concerning the Bill, government has stated that the change to make SSP for coronavirus sickness a day one right will be applied retrospectively to 13 March 2020. We will add to this guidance as soon as we see the full text of the legislation.
Can we reclaim SSP paid for coronavirus related illnesses?
One of the measures included in the Budget on 11 March was - for businesses employing 250 or less people - for up to 14 days SSP can be reclaimed. As with the day one SSP rules, we’ve not seen that the change has been implemented through legislation presented to parliament and assume that this is not yet in force. We will keep you up to date on this as developments are announced.
What impact does social distancing have on Statutory Sick Pay (SSP) or other pay?
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; seven days where you live alone and 14 days for families living together where one person develops symptoms. 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 (whether or not they are in a vulnerable category) 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. That is because the social distancing recommendations (including those for vulnerable groups) envisage that vulnerable people may carry on attending work, subject to following the other recommendations concerning commuting etc. This is different to the requirement to self-isolate, which triggers SSP.
Do we have to pay our employees if we have to close part of the business due to an outbreak of coronavirus?
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.
We were forced to shut down for two weeks because of a suspected coronavirus case. Can we reclaim SSP?
This depends. If you were compelled by the PHT and doctor managing a contact case to close, then ‘deemed absence’ provisions in the SSP regulations may have been triggered. If that was not the case and you decided to close as a precautionary measure to protect your staff, then it is unlikely this would trigger SSP for anyone that was not unwell. The guidance states that workplaces can remain open even where someone develops symptoms and self-isolates.
Can employees be laid off on unpaid leave if our business is adversely affected by coronavirus?
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 first FAQ on this page for more information about government support for businesses under the Job Protection Scheme and employees receiving pay while furloughed.
Are we insured for employee or other costs relating to coronavirus?
You will need to check your insurance policy to determine this or, if you have an agent, discuss it with them.
Is it possible to conduct a disciplinary or grievance hearing by an alternative method and without attending a meeting if someone is self-isolating?
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, where the employee is at a work location but perhaps, because of travelling restrictions, the manager is unable to attend at that location. 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.
Further advice and guidance
The Department of Health and Social Care has issued information and advice for the public on the outbreak of coronavirus, including the current situation in the UK and information about the virus and its symptoms. This page will be updated at 2pm each day until further notice.
The NHS has issued some advice to the public on how to avoid the spread of infections such as coronavirus, together with symptoms to look out for and advice to people who have travelled to affected areas.
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.