Covid-19: Employment law considerations for employers

The extraordinary and unprecedented measures taken by the UK government to counteract the spread of Covid-19 are having a significant effect on many thousands of businesses and millions of their employees. Hopefully, these are temporary and people will be able to return to work as normal in due course without any long-term impact. But for now, there are important considerations for employees and businesses alike in relation to compliance with government guidelines and the inevitable disruption to their daily working lives.

Furloughed employees

  • If you have the contractual right to remove work i.e. lay off or short time employees in their employment contract, then with some degree of consultation you can then notify them that they are now designated as furloughed. The employee cannot choose or designate this themselves.
  • If you have no such contractual provision, then the employee will need to agree which will require more consultation.
  • Critically, the government guidance for employees states that ‘an employee cannot undertake work for or on behalf of the organisation. This includes providing services or generating revenue.’ Working during furlough time is therefore going to impact eligibility and should not be undertaken.
  • Each relevant employer will need to submit information to HMRC as to what employees have been furloughed through a new portal. HMRC will be reimbursing the employer and a new system needs to be set up to enable this reimbursement since the current system does not allow for it. Currently, it is anticipated that this will be operational before the end of April.
  • The system is open to abuse, so record keeping is essential.

Statutory Sick Pay (SSP)

  • The government has passed legislation to deal with SSP – The Health Protection (Coronavirus) Regulations 2020 which confirms that those who self-isolate because they are given a written notice by NHS 111 (and not just doctors) are deemed to be incapable of work and entitled to sick pay. Employees can self-certify for the first seven days.
  • SSP for Covid-19 will apply from day one. Small and medium sized businesses with fewer than 250 staff will be reimbursed for the first 14 days of SSP.
  • Those who live in the same household as someone with symptoms will also be eligible for SSP as they are self-isolating.
  • However, if they live with someone who is designated as vulnerable (shielding) and will be written to and told to stay at home for 12 weeks, then they are not entitled to be off work.
  • If the employee is themselves the vulnerable person (written to re shielding) then they would be entitled to SSP and should be off work. It is possible to furlough a shielding employee instead the guidance suggests but not whilst they are on sick leave.
  • Anyone who chooses not to come to work as they are concerned about the situation and does not have a written notice is not entitled to SSP.
  • Those who are self-employed do not get it either but can claim Universal Credit if they are eligible.
  • Those on sick leave (signed off or self-isolating cannot be furloughed) until the end of that period.

Home working, school closures and key workers

  •  All children are to remain at home unless their parent is a key worker. The list of key workers is much wider than NHS staff.
  • If you consider your staff are key workers, you need to communicate that to them – this may not apply to all staff.
  • If an employee is looking after their children due to school closures and cannot come in or is not really working from home then this is time off unpaid.
  • Employers should now have home working in place. If employees are working from home, managers need to have a frank discussion as to what actual work can be done from home and whether their pay should be reduced accordingly depending on their working hours or whether furlough leave can be used instead.

Closure of a site or factory

  • If the employer decides to close a site or factory due to the spread of, or the risk of spread of Covid-19, then the rule is that the employer must pay the employees as they were ready and willing to work.
  • If work can be undertaken at home, then the employer can request that all employees do so. Otherwise, the employee still gets paid.
  • If the site closure is due to insufficient work, the employer will need to consider whether they can put their workers on short-time working and/or lay off within the contract of employment or whether furlough should apply.

This article does not constitute legal advice and employers are encouraged to take specific legal advice on the scenario they face. This update is a statement of the current position as at the time it is written.