Government advice for employment FAQs
What legal obligations must employers factor in when making personnel decisions relating to Covid-19?
In addition to express and implied obligations in employment contracts, employers should be mindful of the following duties:
- To protect the health, safety and welfare at work of the workforce and others who might be affected such as customers, suppliers and visitors. There is also a common law obligation to take reasonable care of the health and safety of their workforce.
- Not to discriminate against staff with protected characteristics, and to make reasonable adjustments for those with disabilities.
- Employers should also be aware of their obligations under data protection law. It is worth noting that the ICO has included comforting recognition on its website that the Covid-19 situation is a public health emergency, so businesses' data protection practices might not meet their usual standard, and has said that it won't penalise organisations that need to prioritise other areas or adapt their usual approach during this extraordinary period. Employers should always exercise caution when collecting special category data, keeping in mind the basic data protection principles such as proportionality, data minimisation, etc.
What do employers need to do for employees working from home?
Considering the current emergency situation we find ourselves in, we are of the view that attention should be first given to employment protection and the day to day continued running of your business. When that has been achieved, we should consider the health and safety responsibilities for home workers. When someone is working from home temporarily, as an employer you should ensure:
- Regular communication with manager and potentially other team members via online support tools e.g. Skype
- That they clearly understand the work delivery expectations
- That they have a work suitable area at home
Should this work from home situation continue for several months, employers may want to consider having a full Homeworking Risk Assessment completed to demonstrate care and support for employees.
Do employers need risk assessments for staff working from home?
If work is primarily with display screen equipment, the Health & Safety Executive advises that employers do not need to do home workstation assessments for those working from home temporarily. Employers could provide workers with advice and forms to complete their own basic assessment at home. It needs to be accepted that it will not always be possible to follow the letter of the law in relation to home working risk assessments and that the priority should be to ensure that where possible people have the ability to work from home.
Do employers need to provide equipment to staff working from home?
Employers should try to meet employee needs where possible, e.g. this could mean allowing workers to take this equipment like laptops, keyboards etc. home. For other larger items (e.g. ergonomic chairs, height-adjustable desks) encourage workers to try other ways of creating a comfortable working environment (e.g. supporting cushions), in the short term. Conducting a Homeworking Risk Assessment would be appropriate where an employee raises concerns about their remote working conditions.
What if an employer has a new employee, who unfortunately cannot start their contract as the company has gone into lockdown? What is the situation for employees that were not on payroll by 19th March 2020?
As it stands, this is an unfortunate situation to be placed within. You can only claim for furloughed employees that were on your PAYE payroll on or before 19 March 2020 and which were notified to HMRC on an RTI submission on or before that date. There are limited exceptions to the 19 March deadline in respect of employees who have TUPE transferred to their employer after this or where there has been a payroll consolidation scheme after this date. Where a new start was not put on your payroll by the deadline, the job retention scheme cannot be activated for this employee.
There may be scope to negotiate a reduced salary with your new employee, or to delay the start date but you should obtain further advice on this particularly if the employment contract has been agreed and a commencement date identified.
The new employee, if they left their old employer before 28th February, meaning they were not registered on their old employers’ payroll, the only available source of funding is through applying for Universal Credit. If they were fortunately registered, on the deadline, there is potential to ask their old employer to temporarily re-hire them and then furlough them for the time being. However, this would be at their old employer’s discretion.
If an employer has offered someone employment but they haven’t started yet, can we withdraw the offer?
An offer of employment can be withdrawn at any time before it is accepted by the employee or before any conditions of the offer have been satisfied. As long as you are satisfied that it is clear the employee has not yet accepted the offer, then you can advise them that it is withdrawn due to a change in the business requirements. Once any conditions to which the offer was made subject have been satisfied and the employee has accepted the offer, a contract of employment has been formed. In this case, if you wish to terminate the contract you must give the employee the notice that they are entitled to under the contract.
If the employer would prefer not to terminate the contract as it expects that it will still require the new recruit once the peak of coronavirus and social distancing is over, it may instead agree with the individual that their start date will be delayed, perhaps indefinitely until more is known. It would be for the employer and the new recruit to agree on any terms which would apply during the interim period, including whether or not this would be paid and at what level. In the event that the new recruit did not agree to such a delay, the employer would likely have no option but to terminate the contract to avoid breach of contract and/or wages claims.
Can an employer conduct right to work checks remotely?
Right to work checks have been temporarily adjusted to make it easier for employers to carry them out. As of 30th March 2020 the following temporary changes have been made:
- checks can now be carried out over video calls;
- job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;
- employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.
Checks continue to be necessary and you must continue to check the prescribed documents listed in Home Office guidance. It remains an offence to knowingly employ anyone who does not have the right to work in the UK.
Can employers rotate staff on furlough leave?
The minimum period during which a staff member can be furloughed is three weeks. After that period, it seems that staff members can return to work (if there is work available for them to do). This means that it be is possible to rotate those on furlough in three week blocks or more. If an employer intends to introduce rotation, they should make it clear how long periods of furlough will last in their letter to staff members.
What changes have been made in relation to Statutory Sick Pay?
The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations (Northern Ireland) 2020 provide for categories of people to be treated as incapable of work for the purposes of statutory sick pay (SSP). The Regulations provide that where a person is isolating themselves from others in accordance with advice on Coronavirus, they are deemed to be incapable of work. Another change is that for employers of fewer than 250 SSP will be paid from day one, and you will be able to reclaim the statutory sick pay element for at least 14 days.
Recent guidance has confirmed that the online service will be available from 26 May.
The repayment will cover up to 2 weeks starting from the first qualifying day of sickness, if an employee is unable to work because they either:
- have coronavirus (COVID-19) symptoms; or
- cannot work because they are self-isolating because someone they live with has symptoms; or
- are shielding and have a letter from the NHS or a GP telling them to stay at home for at least 12 weeks.
You will be able to claim for periods of sickness starting on or after:
- 13 March 2020 - if your employee had coronavirus or the symptoms or is self-isolating because someone they live with has symptoms
- 16 April 2020 - if your employee was shielding because of coronavirus
In order to claim you’ll need:
- your employer PAYE scheme reference number
- contact name and phone number of someone we can contact if HMRC has queries
- UK bank or building society details (only provide bank account details where a Bacs payment can be accepted)
- the total amount of coronavirus SSP you have paid to your employees for the claim period - this should not exceed the weekly rate that is set
- the number of employees you are claiming for
- the start date and end date of the claim period
You can claim for multiple pay periods and employees at the same time.
However, it is not possible to claim the SSP rebate at the same time as furlough. The start date of your claim is the start date of the earliest pay period you’re claiming for. The end date of your claim is the end date of the most recent pay period you’re claiming.
You must keep records of SSP that you’ve paid and want to claim back from HMRC and in addition you must keep records of the following for three years:
- the dates the employee was off sick
- which of those dates were qualifying days
- the reason they said they were off work - if they had symptoms, someone they lived with had symptoms or they were shielding
- the employee’s National Insurance number
You can choose how you keep records of your employees’ sickness absence. HMRC may need to see these records if there’s a dispute over payment of SSP.
What if a staff member falls sick or falls into a Government-advised self-isolation category during furlough leave?
The Government’s guidance states that it is possible to furlough an employee who is ill or shielding in line with public health guidance. While it is possible for an employee to switch from SSP to furlough, and vice versa, it is not possible to be in receipt of SSP at the same time as being furloughed. If an employee becomes ill while furloughed it is up to employers to decide whether to move these employees onto Statutory Sick Pay or to keep them on furlough, at their furloughed rate. Also while it is possible to furlough ill members of staff (including those on long term sickness) the guidance states that the furlough scheme should not be used to top up short term absences from work where the member of staff would not be furloughed otherwise (though the minimum three-week furlough period is designed to stop this being possible).
Can employers furlough a staff member who is caring for someone or looking after children?
Yes, these staff members can be furloughed.
Can an employer continue with disciplinary and grievance processes?
Following the Government’s enhanced ‘stay at home’ guidance, published on 23 March, employers have implemented home working wherever possible. Where employees are working from home, however, employers may be unsure whether they can progress a disciplinary or grievance process, e.g. by conducting investigations while home-working, and holding hearings remotely via Skype or Zoom etc. HR and line managers who are working from home should be able to conduct investigations into grievances or alleged misconduct remotely, provided they have access to relevant technology and materials. If an investigating manager needed to review social media posts or emails they could do so from home. However, inspecting the site of an alleged act of misconduct could not be done remotely. Employers will need to consider whether a reasonably thorough investigation has been completed in each individual case and decide on that basis whether it would be appropriate to hold the disciplinary/grievance hearing, or suspend the process until further investigation is possible. Where the necessary investigation has been completed and the employer decides that a hearing can be held, there will be particular concerns where an employee is accused of gross misconduct and the likely outcome of the disciplinary hearing would be dismissal.
Holding a hearing remotely should not of itself make a dismissal unfair, provided that all other procedural steps are taken correctly, e.g. there was a thorough investigation, the employee has been given full details of the allegations against them and had time to consider those allegations, etc. When seeking to schedule a remote hearing, however, the employer will need to be careful to check the availability of employee's companion and ensure that all parties have access to the necessary technology. It may not be possible to proceed with such a meeting if there are practical difficulties in ensuring adequate communication or if the employee is unavailable due to illness.
If an employer wishes to consider suspending an employee who is working, remotely or otherwise, then this will still be feasible in line with the normal considerations. Such a decision needs to be carefully considered and should also be regularly reviewed. In some circumstances, an employee working remotely may pose less of a risk to an investigation process in terms of potential tampering with relevant evidence. However, if they still have IT access then an employer may need to remove this access, depending on the nature of the disciplinary allegations and the status of the investigation.
Employers are under a statutory duty to act reasonably and, before dismissing an employee, it’s important to ensure that the employer has acted reasonably in terms of the process undertaken. Employers must follow their disciplinary process and also consider and comply with the principles of the Statutory Dismissal Procedure, including the scenario where the employee has less than 12 months’ service. Among the SDP principles is the requirement to ensure that the timing and location of meetings is reasonable which is particularly relevant for an employee working from home who may lack sufficient privacy to attend an online disciplinary meeting.
In respect of grievance proceedings it will also be possible to have a grievance hearing remotely. It is difficult to see how proceeding with a grievance process would increase the risk of creating a fundamental breach of the implied term of trust and confidence giving an aggrieved employee grounds to resign and to then claim constructive unfair dismissal. It will be important to ensure that the employer has undertaken a proper grievance investigation and, as a starting point, it is advisable to discuss the situation with the aggrieved employee and ask whether they would prefer to have their grievance dealt with via a remote hearing, or suspend the process until the lockdown rules on staying at home are relaxed and an in-person hearing can be arranged.
What if our employees are furloughed – is it still possible to have a disciplinary or grievance process?
The situation above is more complex if some or all of the employees that need to be involved in the process are on furlough leave. One of the key conditions for furlough leave is that an employee cannot do any work for their employer during the furlough leave period. Accordingly, it will not feasible for an HR manager or line manager to conduct a grievance or disciplinary process while on furlough leave. As for the employee who is the subject of disciplinary proceedings, or the aggrieved employee who has raised a grievance, participating in a grievance or disciplinary hearing is unlikely to amount to ‘work’, and that such participation should therefore be possible while the employee is on furlough leave. The same applies to the employee’s companion if they are a work colleague as opposed to an external certified trade union representative. If the employee’s companion is a union representative (full time official or shop steward), the union representative is very likely to be performing duties on behalf of the union, not the employer. Accordingly, the union representative performing those duties would not amount to them carrying out ‘work’ for the employer during furlough.
There is no explicit reference in any government guidance on this issue at the moment and it remains to be seen whether this is an issue that will be clarified in due course. In some scenarios, it may be appropriate to consider suspending the relevant process until after the Covid-19 crisis has passed especially if line managers or HR staff who need to manage the process are on furlough leave and unable to do so.
Ultimately, an employer is under an obligation to act reasonably and, if in doubt, its best to seek legal advice before taking any action that could be viewed as unreasonable.
If an employer starts to pay employees 100% pay while furloughed, can this be reduced over time to 80% pay?
If payments are set to reduce, it is imperative that this is communicated to employees and that agreements are made. Without this step, an employer will be violating its contract and terms. It’s advisable to share this information with employees now, along with your reasons.
Can an employer furlough employees who work for others through this period?
Through the furloughed period, employees must not complete any work for their employer. They can however work for others This is not just the case for existing jobs but also allows for the employer to start a new job and essentially have another wage as well as the furlough wage. However, this will be subject to the employee’s employment contract with you which may state that the employee requires employer consent to work for another employer. If so an employer can outline whether employees can work for others, such as competitors while publishing furlough agreements. It’s also vital to make furloughed employees aware that they must be immediately available to return to work as and when required, following the furlough timeline and restrictions arising from coronavirus.
What should an employer do if an employee is self-isolating yet unable to work from home?
As the employee is unable to work, sick pay will be available for their self-isolating period. This is in place as the Government promotes that all individuals who are vulnerable or experiencing symptoms must self-isolate. An employer can opt for furlough instead if appropriate either immediately or once the employee’s sick period has finished. However, the employer cannot furlough the employee at the same time as claiming the SSP rebate.
If an employee is at home and unwilling to work, what financial support is available?
This can be a difficult subject as financial support will not be available if an employee isn’t sick, isn’t self-isolating and isn’t on furlough. If the employee is failing to follow guidance and isn’t cooperating, the disciplinary process may be required. Through this scenario, it is recommended to discuss this situation with HR or to take legal advice on how you deal with a disciplinary process.
Can staff take annual leave to “top up” furlough leave and pay?
Furloughed employees will continue to accrue leave as per the employment contract and employees can take holiday whilst on furlough. Working Time Regulations (WTR) require holiday pay to be paid at the normal rate of pay. Therefore, if the employee takes holiday while on furlough, the employee should pay the usual holiday pay in accordance with the WTR and not the 80% rate. While the 80% rate can still be recovered in respect of this time, employers will be obliged to pay the additional amounts over the grant. However, employers will have the flexibility to restrict when leave can be taken if there is a business need. This applies for both the furlough period and the recovery period.
If the employee usually works bank holidays, then the employer can agree that this is included in the grant payment. If the employee usually takes the bank holiday as leave then the employer would either have to top up the pay to the usual holiday pay, or give you a day of holiday in lieu.
Can we ask staff to take annual leave for a set period?
Employers can ask employees to agree to take a period of annual leave. If the employees do not agree, then you may give notice ordering them to take holiday on specified dates. There are no explicit requirements about the form that this notice must take, but this notice must be at least twice the length of the period of leave that the employee is being ordered to take.
When staff return to normal working patterns, they will have accrued a lot of annual leave.
Staff will continue to accrue annual leave as normal whilst under contract with an employer. Normally, employees are required to “use or lose” statutory annual leave (5.6 weeks) in the year in which it accrues, unless they are on a form of family leave or, in some circumstances, have been unable to take holidays due to sickness.
One option that may prevent a large amount of annual leave building up without being taken is to give notice to employees requiring them to take leave. However, to help with this issue the Government has amended the Working Time Regulations which apply to Northern Ireland to allow statutory holidays accrued this year to be carried forwards for up to two years where it was not reasonably practicable for staff to take leave due to the outbreak. The carry over amount will be limited to four weeks’ statutory leave. Statutory holidays above this amount (1.6 weeks, which for some staff will amount to designated bank holidays) should be taken this year. Contractual holidays over and above the 5.6 weeks statutory entitlement are a matter for agreement between employers and staff. Some employers already allow carry-over of leave from one year to the next. An employer could allow for more leave than usual to carry forward or require staff to take holidays this year (whether on certain dates or at the employee’s choice).
When would it not be reasonably practicable for staff to take leave due to the COVID-19 outbreak?
When considering whether it was not reasonably practicable for a worker to take leave as a result of the coronavirus, so that they may carry untaken holiday into future leave years, an employer should consider various factors, such as:
- whether the business has faced a significant increase in demand due to coronavirus that would reasonably require the worker to continue to be at work and cannot be met through alternative practical measures;
- the extent to which the business’ workforce is disrupted by the coronavirus and the practical options available to the business to provide temporary cover of essential activities;
- the health of the worker and how soon they need to take a period of rest and relaxation;
- the length of time remaining in the worker’s leave year, to enable the worker to take holiday at a later date within the leave year;
- the extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the coronavirus situation; and
- the ability of the remainder of the available workforce to provide cover for the worker going on leave.
The guidance has stated that furloughed employees should not need to carry over annual leave. In the case of furloughed employees where the employer cannot afford to make up the difference in holiday pay the guidance has confirmed that this would be a situation where it would not be reasonably practicable for the employee to have taken the holiday due to COVID-19.
Employers should do everything reasonably practicable to ensure that the worker is able to take as much of their leave as possible in the year to which it relates, and where leave is carried forward, it is best practice to give workers the opportunity to take holiday at the earliest practicable opportunity.
Can we pay employees in lieu of carried over holidays?
The normal rules on payment in lieu of holidays still applies to periods of leave that are carried over due to COVID-19 and so it is not possible generally to pay workers in lieu of holiday. However, if the worker leaves employment, the employer must pay the worker for any untaken leave. This will include the carried leave under the coronavirus exemption, along with any leave that the worker has accrued in the relevant leave year.
If a company’s workload has greatly reduced due to the impact of coronavirus, what are the best next steps to consider? Reduced hours, redundancies or the Job Retention Scheme?
Utilising the Government’s funding support through the Job Retention Scheme is recommended. This will help you retain your employees for the post coronavirus responsibilities, while supporting them financially. However, this may not always be the best option for a company, depending on its employees’ skills and responsibilities. It is important to consider the obligations under the employment contracts and the employer’s business needs before taking any steps. This will help identify whether reduced hours are possible through the coronavirus period. Financial support from the Government isn’t available if a company reduces hours or serves notice of redundancies. It’s important to remember that the selection of furloughed employees should be completed fairly and also communicated before decisions are made.
What is Emergency Volunteer Leave and how long does it last for?
Following the passing of the Coronavirus Act 2020, the concept of Emergency Volunteer Leave has now been created. Implementing legislation has not yet brought this into force in Northern Ireland but employers should still be aware of it.‘EVL’ is a temporary provision which allows all employees to stop making themselves available for work, so that they can go and provide voluntary work, typically in a hospital, or with social care. The main exception is that employers with less than ten employees are not included. Employees can volunteer for one block of leave, consisting of two, three or four weeks initially, in each sixteen week reference period (the first of which is yet to be set). Depending on the state of the nation, further volunteering periods may be set, in which the entitlement would be reset and employees could take a further block of EVL. Volunteers will have a statutory right to return to the job they were employed in before taking this leave, on terms and conditions no less favourable than those which would have applied if they hadn't been absent. In addition, volunteers will have the right not to be subjected to a detriment or dismissal on the grounds of taking EVL. People who take up volunteer leave and who are found to be abusing this, or acting in a way contrary to the employer’s disciplinary policy could still be subject to disciplinary proceedings.
Do employers have to pay employees on EVL?
Volunteers will be able to make an application to a UK-wide compensation fund, but EVL does not cost the employer any money directly. The provisions in the act closely mirror those for employees who are on maternity leave. Employees will remain entitled to the benefit of all of their terms and conditions of employment which would have applied if they had not been absent - except for those around pay. The period of absence will not affect pension or benefit entitlements.
Can we refuse an application for EVL from an employee?
You will not be able to refuse an application for this type of leave. Even if you feel this may leave you with operational difficulties, this would not be a sufficient reason. You will need to think about the effect this may have on your organisation. If you have key workers or people carrying out work from home who wish to take this up, then you will need to consider having place contingencies. If the employees who wish to volunteer are critical to your organisation, it would be sensible to discuss their plans and try to agree a shorter period of EVL. Alternatively, if some employees are on furlough leave you may wish to require them to come to work instead. Furloughed employees who wish to volunteer are likely to be able to do so without affecting their furlough.
If the Scheme ends we may be unable to continue to employ all of our staff. What can we do?
The normal rules in relation to redundancy apply. Larger employers should be mindful of collective consultation rules. If an employer is making 20 or more employees redundant within any 90-day period at a single establishment, a consultation should take place between the employer and the employee trade union or elected representative. This should take place at least 30 days before the redundancies are due to begin or 90 days if more than 100 employees are affected. The HMRC employee guidance says that “your employer can still make you redundant while you’re on furlough or afterwards”. Neither the guidance for employers nor for employees explicitly says that collective or individual redundancy consultation can be carried out during furlough or whether that would count as work – although, on the basis that it is not making money for the employer or providing services, it would seem that it would be possible to start the process while on furlough.
Employers can take comfort from the announcement of the Chancellor on 12 May 2020 that the Scheme will be extended for a further four months until the end of October. Up until the end of July there will be no changes to the Scheme. From August to October the Scheme will continue for all sectors and regions of the UK but there will be increased flexibility for employers to bring furloughed employees back part-time. Employees will continue to receive the same level of support that they do now but employers will be asked to start sharing the costs of paying people’s salaries. It is not clear if this only applied to furloughed employees that will be working part-time or if it is across the board. The Chancellor has confirmed that further details will be published at the end of May.
See also the following websites for up to date advice: -