How does furloughing work? Can we partially furlough employees? What about sick pay? And how do we treat parents who can't work due to school closures?
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.
Our COVID-19 advice webpages are regularly reviewed. Get updates via Email | Twitter | Facebook | LinkedIn. For advice enquiries contact us on [email protected]. This page was last updated on 8 July 2020 and will not necessarily address developments occurring since then.
This page is not designed 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.
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 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 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.
Frequently asked questions
How will the new Kickstart Scheme (six-month work placements for ages 16-24 on universal credit) work?
Government has announced that they will introduce a new "Kickstart Scheme in Great Britain, a £2 billion fund to create hundreds of thousands of high quality 6-month work placements aimed at those aged 16-24 on universal credit and deemed to be at risk of long-term unemployment". Limited information states that funding is 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 will be open for applications from August and run until December 2021. Updates on this scheme to follow as further details are announced.
New quarantine rules FAQs
How do we treat employees unable to work because they are required to quarantine on return to the UK?
From 8 June, people arriving into the UK from abroad, including UK nationals, are required to quarantine for 14 days. If people have travelled for holiday purposes, this means they would need to book and agree holiday or other leave with their employer to cover both their holiday abroad and their quarantine period. If people could work effectively from home during their quarantine period, then that may be an
option to consider. But if not, some other arrangement may need to be considered.
Is an employee required to quarantine on return to the UK from abroad entitled to be paid?
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 that they could continue to be paid. But if not, some
other arrangement may need to be considered, which may include unpaid leave.
Can I refuse to permit holiday leave where it would involve an excessive period of leave due to the quarantine requirements when people re-enter the UK?
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 that you take individual advice on the particular situation before determining what action you may be able to take where an employee took unauthorised leave.
Test and trace FAQs
How does the test and trace process work?
How does the test and trace process impact leave and pay?
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 below on self-isolation.
Furloughing and Coronavirus Job Protection Scheme work 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 until the end of July. The amount you can reclaim begins to taper downwards from August to October (further details below). People must have been furloughed for the first time on or before 10 June to be able to use the scheme. Government has stated that toaccess the scheme you will need to: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
- Payment should be made within 6 days of the application being accepted by HMRC
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, alongside 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?
An online claim form is now live. You 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 has been extended until the end of October 2020. However, it is now being subjected to tapering provisions to encourage people back to work. See below for further details on tapering. The scheme will close to new entrants from 30 June. From this point onwards, employers will only be able to furlough employees that they have furloughed for a full three week period prior to 30 June. This means the final date by which an employer can furlough an employee for the first time will be 10 June, in order for the current three week furlough period to be completed by 30 June. Employers will have until 31 July to make any claims in respect of the period to 30 June.
How often can we claim?
One claim for every three weeks is 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 until the end of July. Then the scheme is subject to tapering provisions as follows:
August: The government will pay 80% of wages up to a cap of £2,500. Employers will pay ER NICs and pension contributions. For the average claim this represents 5% of the gross employment costs the employer would have incurred had the employee not been furloughed.
September: The government will pay 70% of wages up to a cap of £2,187.50. Employers will pay ER NICs and pension contributions and 10% of wages, to make up 80% total up to a cap of £2,500. For the average claim this represents 14% of the gross employment costs the employer would have incurred had the employee not been furloughed.
October: The government will pay 60% of wages up to a cap of £1,875. Employers will pay ER NICs and pension contributions and 20% of wages, to make up 80% total up to a cap of £2,500. For the average claim this represents 23% of the gross employment costs the employer would have incurred had the employee not been furloughed.
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 must 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. The latest government guidance now states that employees who are unable to work because they are shielding in line with public health guidance (or need to stay home with someone who is shielding) can be furloughed. This has changed from previous guidance which stated that this was possible if employees “are unable to work from home and you would otherwise have to make them redundant."
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%/70%/60% 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%/70%/60% 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 or work.
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. This reduced to 70% in September and 60% in October.
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 until 31 July. From August employers will have to pay employers NI contributions and pension contributions and they can no longer be reclaimed under the scheme.
How do I furlough an employee on a zero-hours contract?
Follow the guidance above covering employees whose pay varies.
What can't I claim for?
You won’t be able to claim wages that you pay above the 80% (70% from September, 60% from October), or employers NI on that, or any additional employer contributions you make to a pension scheme above the minimum auto-enrolment levels. Government guidance states 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?
Not until 1 July. Before that date, 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.
From July, furloughed workers will be able to return to work part-time with employers being asked to pay towards the salaries of their furloughed staff. More details on this will follow. Government has said it will issue detailed guidance on 12 June.
We can keep staff on full pay for several months. Does that disqualify us from the 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, currently you cannot work while you are furloughed. Consider retaining sufficient staff to enable that activity to continue and furloughing others. From July furloughed workers will be able to return to work part-time with employers being asked to pay towards the salaries of their furloughed staff. More details on this will follow on 12 June.
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. The Job Retention Scheme guidance does not stipulate a minimum period between periods of furlough. The scheme will close to new entrants from 30 June. From this point onwards, employers will only be able to furlough employees that they have furloughed for a full three week period prior to 30 June. This means that the final date by which an employer can furlough an employee for the first time will be 10 June, in order for the current three week furlough period to be completed by 30 June. Employers will have until 31 July to make any claims in respect of the period to 30 June.
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 and that from August you cannot reclaim pension contributions.
What about re-opening businesses and returning to work during Step One of government’s recovery plan? Nb: This dropdown covers a range of return to work related FAQs.
Government has published a list of the types of business which must remain closed during the lockdown. There are, however, exceptions within each category, where businesses can continue to trade or can reopen. For details of which types of business can continue to trade or re-open see government guidance. The government has also published detailed workplace guidelines covering eight work sectors including warehouses; offices and shops. The guidance contains five essential messages:
- Work from home, if possible
- Consulting with workers and trade unions on Covid-19 risk assessments
- Maintaining two metres social distancing
- Manage transmission risk (by taking practical and physical steps)
- Reinforcing and enhancing cleaning processes (including more frequent cleaning and providing handwashing facilities or hand sanitisers)
Which workplaces should re-open?
For the time being, hospitality and non-essential retail businesses must remain closed. The list is available here. Garden centres were allowed to open from Wednesday 13 May 2020. If your workplace is not on the ‘required to close’ list, the second consideration is whether or not employees can work from home. If so, they should continue to do so even if the workplace is not on the ‘required to close’ list. If your workplace is not on the ‘required to close’ list and your workers cannot work from home,then they can be encouraged to travel to work. In travelling to and from work, and whilst at work, workers need to keep and be kept safe. This means continuing to avoid public transport wherever possible. Crucially, for employers, it means their workplaces must follow 'COVID-19 Secure' guidelines. See below for more FAQ’s about safe workplaces.
Can we ask employees/workers to return to work?
Yes, but only provided it’s essential and safe for them to do so. Where possible employers should allow employees to work from home and employers should take "reasonable steps" to allow and assist working from home.
What must employers do to ensure a safe workplace before reopening?
Employers must take “all reasonable steps” to ensure that there is a safe place of work for employees. This means social distancing should be implemented if possible but where it isn’t possible measures should be implemented to control the risk of transmission. This is also now a mandatory requirement to carry out a risk assessment to assess any COVID-19 risks. The risk assessment must:
- Identify work activities or situations might cause transmission of the virus
- Consider who may be at risk
- Decide how likely any exposure is to employees
- Identify ways of removing the activities or situations or, where this isn’t possible
The risk assessment must be recorded in writing and set out what steps have been taken in addressing any risk. The government guidance states it “expects” employers with 50 employees or more to publish the results of their risk assessment (not the actual risk assessment) on their website. Although there is currently no statutory requirement to do so this may change in the future. Where an employer has carried out a risk assessment it should display a notice (a download is provided in the government guidance) demonstrating compliance. Employers should consult with either their trade union partners (where they recognise one) or alternatively with their employees to agree what safeguards and guidance should be implemented.
How does Step One of the recovery plan change things for people who are vulnerable to COVID-19?
No significant changes have been made to the previous guidance for vulnerable people. Some refinements in terminology are apparent as government attempts to give clearer guidance but the fundamental guidance for vulnerable people remains the same. A recap:
Clinically extremely vulnerable – these are the people who have been advised to “shield” themselves following receiving a letter or being told by their GP that they are in this group. The advice to them, which is to stay at home and avoid any face-to-face contact with other people, remains the same. They should not be attending a workplace but may be able to work from home. Employers should continue to follow the guidance below in relation to leave, pay and furloughing.
Clinically vulnerable – these are the people who have underlying health condition which means that although they are not in the ‘extremely vulnerable’ group, they should continue to take particular care to minimise contact with others outside their households, but do not need to be shielded. These include those aged over 70, those with specific chronic pre-existing conditions and pregnant women. The position for the clinically vulnerable has again not changed; they were previously advised to work from home ‘where possible’ but it is clear from that message that they might attend work where there was no other option. It is essential that other measures are considered by employers before bringing them into the workplace. Employers should continue to follow the guidance below in relation to leave, pay and furloughing.
Those required to self-isolate – there is no change to the position for people required to self-isolate because they or a member of their household displays symptoms of COVID-19. Employers should continue to follow the guidance below n relation to leave and pay during self-isolation.
What about those with childcare responsibilities or other caring responsibilities?
Step One of the recovery plan does not change the situation for people with childcare or other care responsibilities which result from COVD-19. To an extent childcare pressures may be relieved when schools re-open, but given the plans for phased re-opening and limits to classroom sizes etc, it appears unlikely that the burden of childcare will be completely removed for many people in relation to their availability to work. Employers should follow the guidance below in relation to leave, pay and furloughing.
Do we need to provide personal protective equipment (PPE)?
There’s no obligation on employers to provide PPE unless the working environment is one where it is usually supplied. The government guidance indicates that social distancing, facilities for hand washing and regular cleaning or workplaces and premises are adequate. However, one of the considerations in your risk assessment should be whether PPE is necessary and, if so, what level. Where PPE is required it must be suitable should be supplied free of charge.
Do we need to consider travel arrangements for employees/workers?
There is no obligation on an employer to do so but HSE guidance provides the following advice:
- Identify where people can travel alone in their own transport (or walk, or cycle if it is safe to do so) when getting to and from work to maintain social distancing
- Stagger arrival and departure times so people can keep to the 2 metre social distancing rules by not using entry/exit points at the same time
- Provide handwashing facilities (running water, soap and paper towels) at entry/exit points so that employees/workers can wash hands when they get to work and leave. If this is not possible, provide hand sanitiser
See here for more information.
What if, as an employer, I have taken all reasonable measures to ensure the workplace conforms to the COVID-19 Secure guidelines but an employee refuses to return to work?
It will be important to engage with employees and fully understand any reasons for not wishing to return to work. If you feel that an employee is unreasonably refusing to return to a COVID-19 Secure workplace then it is recommended you take advice on next steps to ensure that their particular circumstances are handled appropriately.
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 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 employment 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.
Furloughing is another alternative. The latest government guidance states that employees who are unable to work because they have caring responsibilities resulting from coronavirus can be furloughed and uses the specific example of employees that need to look after children can be furloughed.
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.
For other employees who fall into the high risk category who have been advised to shield amended government guidance and legislation now permits either furloughing or paying SSP as alternatives.
Is Statutory Sick Pay (SSP) now a day one right or do we still apply three waiting days?
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.
Can we reclaim SSP paid for coronavirus related illnesses?
For businesses employing 250 or less people up to 14 days SSP can be reclaimed. Click here for government information on SSP..
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.