Coronavirus – Employee FAQs

The following guidance for employees is being reviewed and updated daily and does not constitute legal advice. The government guidance is constantly evolving as the Coronavirus pandemic develops. As such, you are advised to keep up to date with the latest information that is available.

The World Health Organisation (WHO) has declared Coronavirus (COVID-19) a Public Health Emergency of International Concern. The impact that Coronavirus will have in the UK remains very much uncertain. Understandably, this is causing major concern, both from a health perspective but also from an employment and income point of view. As such, we have put together a collection of questions that we have been asked by our employee clients which you may find useful if you become concerned about the impact the Coronavirus crisis will have on your job, health and personal finances.

Will I receive sick pay if I can’t work?

Emergency legislation has been put in place to provide Statutory Sick Pay (SSP) from day 1 of absence for eligible employees for Coronavirus related reasons to include the following:

  • You have coronavirus;

  • You are unable to continue working for reasons relating to age (being over 70), pregnancy, or having a long-term specified underlying health condition, including chronic respiratory diseases, chronic heart condition, kidney or liver disease, diabetes or have a weakened immune system;

  • You are displaying coronavirus symptoms;

  • Someone in your household has coronavirus symptoms; and

  • You’ve been told to self-isolate by a doctor or NHS 111.

In the last 3 scenarios you are required to self-isolate from other people in such a manner so as to prevent infection or contamination with coronavirus and by reason of that isolation are unable to work. The latest government guidance should be consulted in such cases Public Health England: COVID-19: stay at home guidance

The government has now launched an online isolation notes service which can provide you with evidence for your employer that you have been advised to self-isolate due to coronavirus related concerns. For the first seven days off work, you can self-certify so you don’t need any evidence for your employer. After that your employer may require evidence of sickness / isolation. The notes can be accessed through the NHS website and NHS 111 online.

In addition to SSP your employer may offer contractual sick pay at more generous rates. You should check your employment contract or consult with your employer for further details.

I am in a vulnerable category. What are my rights?

On 16 March 2020, the government stated that there should be special consideration for anyone in the following categories:

  • Individuals aged over 70.

  • Women who are pregnant.

  • Individuals aged under 70 with an underlying health condition (being any adult instructed to get a flu jab each year on medical grounds) would be strongly advised to work from home for the time-being. These are listed as:

  • chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis.

  • chronic heart disease, such as heart failure.

  • chronic kidney disease.

  • chronic liver disease, such as hepatitis.

  • chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), a learning disability or cerebral palsy.

  • diabetes.

  • spleen issues, for example, sickle cell disease or where an individual has had their spleen removed.

  • a weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets or chemotherapy.

  • being seriously overweight (a BMI of 40 or above).

If you fall within one of the vulnerable categories your employer should consider the position very carefully.

Firstly, you are strongly advised to work at home wherever possible. If this is not practical, you would be entitled to sick pay as a minimum.

If your employer insists on your attendance at work, they would be likely to be in breach of their duty of care towards you which may also be regarded as a breach of the implied term of mutual trust and confidence or a repudiatory breach of contact resulting in a claim for constructive dismissal (if you have the requisite two years’ service to bring such a claim).

If your long-term health condition is regarded as a disability within the meaning outlined in the Equality Act 2010, discrimination issues may arise if your employer does not address your concerns and provide reasonable adjustments.

What if I don’t want to go to work because of Coronavirus concerns?

If you do not fall within one of the vulnerable employee categories, you should talk to your employer and explain your concerns which may relate to concerns about your health or the health of a family member. Hopefully your employer will be understanding and arrangements can be agreed. Unfortunately, your employer is not obliged to pay you if you do not attend work, other than for the usual reasons such as annual leave, sickness or based on the vulnerable employee scenarios as outlined above.

If your employer considers that you are refusing to attend work without a valid reason this could, in theory, lead to disciplinary action. Further, if the absence is unauthorised then you may not be entitled to pay as you are not willing to attend work. However, in the current climate, we trust that your employer would be understanding. If you remain concerned you may wish to seek legal advice.

If you can work from home then this may well resolve the issue. If not, you and your employer would need to consider the current public health advice, the specific reason that you are concerned about attending work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of your refusal.

I am pregnant. What are my rights?

Your employer cannot force you to start maternity leave early unless you are absent from work “wholly or partly because of pregnancy” after the beginning of the fourth week before you are due to give birth.

It is currently strongly advised that you socially isolate which will involve staying away from the workplace. If the nature of your role means that you are unable to work from home, you are entitled to SSP as a minimum. However, your employer should also consider suspending you on full pay so as to avoid any discrimination issues which may arise.

Can I work from home?

In line with current government rules on social-distancing, many businesses have closed and employees are only permitted to attend work where absolutely necessary. Where possible, employees are being encouraged to work from home. Employers should support you and offer flexibility wherever possible.

If there is already an established requirement to work from home or if you have a job that you can perform at home, arrangements should be agreed with your employer. Subject to any contractual provision to the contrary, you will continue to be entitled to your normal rate of pay.

In theory, imposing home working would arguably constitute a variation of the employment contract requiring your consent. However, in these unprecedented times, if you are faced with either being on SSP or nil pay as an alternative, you may wish to consent to working from home as a way of preserving pay. In the circumstances and given the time sensitive nature of the COVID-19 outbreak, employee consent is likely to be the most realistic means of validly formalising a home working requirement where none previously existed.

Now the schools have closed what are my options to continue work and be paid?

In normal circumstances, it may not be appropriate for an employee to work from home while also providing hands-on childcare. However, as the COVID-19 outbreak escalates, employers may need to take a pragmatic approach. As schools and nurseries close, the majority of parents in the workplace will face this issue and putting a blanket ban on working from home while also looking after children may preclude a large proportion of the workforce from performing any duties. In these unprecedented circumstances, it may be necessary for employers to take a more relaxed and flexible approach to homeworking and allow their employees to work around their childcare responsibilities.

Depending on your personal circumstances and the kind of work you perform, it may not be possible to continue to work at home during this period. In these situations, the other options available include:

  • Reaching an agreement with your employer.

  • Dependant’s leave – You are entitled to assert your right to a ‘reasonable’ amount of time off work to take necessary action to deal with particular situations affecting your dependents. There is no statutory right to pay during this period, but some employers might offer pay depending on the employment contract or workplace policy. This entitlement is intended for unplanned and short-term scenarios.

  • Parental leave – you have a statutory entitlement to take up to 18 weeks unpaid parental leave per dependent child before they are 18, for the purpose of caring for a child (for whom you are responsible), subject to eligibility and the rules of the scheme. You should also check whether you have a contractual right to pay in these circumstances.

  • Annual leave – in accordance the Working Time Regulations 1998 and company policy.

If I can’t work, can I use my annual leave?

The normal rule on taking paid annual leave will continue to apply subject to the Working Time Regulations 1998 and your terms and conditions of employment. Workers may wish to take annual leave as an alternative to scenarios where they would otherwise be on SSP or nil pay.

During any period when work may not be available, you have the option to utilise your annual leave, or your employer may require you to take some annual leave, subject to your contractual entitlement and statute.

If your employer decides to impose this, they must provide notice at least twice as many days before as the amount of days they require you to take. For example, they must give 2 weeks’ notice to impose a one-week holiday.

Workers are entitled to take statutory annual leave during sickness absence but may not be compelled by you to do so.

What rights do furloughed employees have in respect of holiday leave and pay?

The government has passed emergency legislation relaxing the restriction on carrying over the four weeks’ annual leave derived from EU legislation with immediate effect. You are now permitted to carry over such leave where it was not reasonably practicable for you to take it in the current leave year as a result of the effects of the coronavirus. Carried-over leave may be taken in the two leave years immediately following the leave year it was due to be taken in.

The additional 1.6 weeks statutory leave derived from UK legislation and any enhanced contractual leave cannot be carried over under these provisions, but this can be done so by agreement.

There is now some updated ACAS guidance on holiday leave during furlough. The revised

The new ACAS guidance says this:

Bank holidays are usually part of the legal minimum 5.6 weeks’ paid holiday. Employees and workers must get their usual pay for bank holidays.  

Employees and workers may still be required to use a day’s paid holiday for bank holidays, including when they’re furloughed. If bank holidays are given on top of the 5.6 week’s paid holiday, employees and workers should check their contract or talk to their employer about taking this holiday.

If employees and workers usually work on bank holidays but are currently furloughed, they should check with their employer to see if they have to take holiday on that day or if they can take the time off at a later date.

If employees and workers cannot take bank holidays off due to coronavirus, they should use the holiday at a later date in their leave year.

If this is not possible, bank holidays can be included in the 4 weeks’ paid holiday that can be carried over. This holiday can be taken at any time over a 2-year period.”

What is still not clear is whether “usual pay” for bank holidays (or other annual leave during furlough) means the new salary under furlough or the pre-furlough salary, the HMRC Customer Support twitter page tweeted that it is possible to take annual leave when on furlough, and it must be paid at full pay.

What if I need to travel for work?

This will firstly depend upon the nature of the FCO advice on travel to the areas of the country in question and other restrictions that the government may temporarily put in place. It would not, ordinarily, be appropriate to continue to require work travel to areas which the FCO has advised against travelling to. In most cases it would not be a reasonable request to require travel to such areas, and it may breach your health and safety obligations, and the obligation of trust and confidence, to impose such a requirement on employees. It could even result in a personal injury claim should you contract the illness while undertaking work-related travel in these circumstances.

What is the position if I am stranded overseas on a work trip?

If you are unable to travel home because you have contracted COVID-19 and are either not permitted to travel or are too unwell to do so, you should be regarded as being on sick leave in terms of pay, although we envisage that most employers would likely continue to pay full pay in full in these circumstances. Your employer would also need to consider the additional expenses incurred by you in terms of accommodation and subsistence and ensure that assistance is provided to make arrangements, and that you are reimbursed for such expenses. If medical assistance is required, there should be business travel insurance in place.

If you are unable to travel home because you are subject to lockdown or precautionary isolation and unable to access transport home, similar considerations will apply. However, you should continue to receive full pay on the basis that you are only in that situation because you were sent on a business trip.

If there is a breakdown in the pre-arranged transport home (for example, due to flight cancellations), your employer should explore other options to repatriate you. Your employer remains bound by implied duties towards you, and it is likely that ongoing responsibilities towards you would require an employer to make reasonable efforts to find a way for you to return home.

Can I travel on holiday?

Firstly, government restrictions may be in place in the coming weeks and there will be FCO advice regarding travel to certain locations.

In the current climate your employer may advise you not to travel and that anyone travelling to a high-risk area will be required to remain at home on their return to self-isolate, and that contractual pay (including contractual sick pay) will not be payable in respect of such self-isolation. Such action may arguably amount to a breach of contract or unilateral change in terms and conditions if they do not fall within the government advice for self-isolation.

Further, any employer directions in terms of non-work-related travel, could be indirectly discriminatory. For example, if you are a national of another country and you wish to visit this could, potentially, be indirect discrimination on the basis that the new policy disproportionately affects you.

If you do travel and need to self-isolate on your return, you may be entitled to SSP or full pay depending upon whether this falls within the guidance from the relevant public health authority on self-isolation.

I am stranded overseas following a holiday. What are my rights?

If you are unable to travel home because you have contracted COVID-19 and are either not permitted to travel or too unwell to do so, your employer should treat you as being on sick leave in terms of pay. You are entitled to take annual leave if you prefer to do so, but your employer cannot compel to you to do so.

If you are well but unable to travel home because of a lockdown or precautionary isolation, your entitlement to pay will depend upon the precise circumstances.

What if my employer needs to close the workplace temporarily?

Many businesses have currently closed on government advice or due to health concerns or staff shortages.

Firstly, an employer should consider arrangements for you to continue to work from home but this may not always be possible.

In general, any temporary closure of the business will be treated as the employer’s decision and so, in principle, you will remain entitled to full pay, unless there is no contractual requirement to offer work (which may be the case if you are a casual employee). Obviously, this may present significant economic hardship for your employer and this may ultimately lead to lay-offs, the business closure, insolvency and redundancies. This is addressed below.

Will I lose my job permanently or temporarily?

Unfortunately, this may become the reality for many in the coming weeks. Three different scenarios may arise:

  • Redundancies – a permanent measure to cope with a downturn in work.

  • Lay-offs – a temporary solution for employers seeing a downturn in work as a result of the pandemic is to lay-off their employees (providing no work and no pay for a short-term period). See the section below on the Coronavirus Job Retention Scheme for current options.

  • Short-term working – providing less work and less pay for a period of time.

Whilst you don’t have a right to be provided with work, you do have the right to be paid. However, in order to impose the lay-off or short-term working measure an employer must have the contractual right to do so or you must agree; otherwise your employer will be in breach of contract entitling you to resign and make a claim to the employment tribunal. Nevertheless, in the current extreme circumstance redundancies may become a reality unless you agree to lay off or short-term working. You may wish to seek advice if you are faced with this situation.

Your employer may also consider other measures such as giving notice to take holiday, seeking volunteers to take unpaid leave, seeking volunteers for redundancy and terminating the contract of some workers or contractors when there is no risk of an unfair dismissal claim.

Your rights in these situations will depend on a large number of factors to include:

  • Your contractual rights, as outlined in your terms and conditions of employment;

  • Your workplace policies;

  • The outcome of a consultation process;

  • Agreement between you and your employer;

  • How long you have been employed for;

  • Whether the business is to close temporarily or permanently; and / or

  • Whether working from home is possible.

Depending on the circumstances your employer will need to consult with you, the trade union or other representative body about redundancy, lay-off or reduce working hours. You may be presented with options to consider.

Employees who are laid off and are not entitled to their usual pay might be entitled to a statutory guarantee payment of up to £29 a day for a maximum of 5 days in a 3 months period. During a lay-off period an employee is also permitted to take pre-arranged annual leave, subject to the terms and conditions of employment.

If you are made redundant and you have been employed over 2 years, you will be entitled to redundancy pay, notice pay and pay in respect of accrued but untaken annual leave.

Subject to eligibility if you are faced with the prospect of losing your job or income you may be eligible for state benefits to include Jobseekers’ Allowance or Universal Credit.

Coronavirus Job Retention Scheme

On 20th March 2020 the Chancellor announced details of the Coronavirus Job Retention Scheme (or “Furlough” Scheme) to protect people’s jobs and income during the Coronavirus crisis.

The Government have confirmed that they will step in to assist employers to cover the wages of employees retained on payroll but at risk of being laid-off due to the impact of Coronavirus.  Up to 80% of wages will be paid, subject to a limit of £2,500 per month).  This support will be available for an initial 3-month period, to be extended if required.  The first grants, to be administered by HMRC, are expected to be paid within weeks.

We understand that HMRC told a Parliamentary Select Committee that the online portal for the scheme will open on 20 April, with the first reimbursements made on 30 April.

Further details of this scheme can be found within our CJRS FAQ documents.

Conclusion

It is difficult to provide full advice regarding your full rights and options in these FAQs.

The COVID-19 pandemic is continually changing and the government and ACAS advice for employers and employees is being updated as the situation develops. You can keep track of the guidance for employees on this page and from the following sources:

For further advice please contact DC Employment Solicitors on 023 8001 1234.

Caroline Oliver, Senior Solicitor

Last updated on 6th April 2020

Last updated on 6th April 2020

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