Employment: What you need to know

COVID-19, has caused huge disruption to workplaces across the UK. As the Government advises people to work from home wherever possible, employers and employees alike are rushing to ensure they understand their rights and responsibilities under the law.

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Employment contacts

Kate Hindmarch

Consultant Solicitor

01522 508 815

Frequently Asked Questions:

Our employment team are currently receiving a large number of questions in light of COVID-19. We have put together a list of the most FAQs to help answer some of the questions you may have. 

What has the Government announced about returning to work?

The current guidance remains that employees should work from home where they can. 

However, since the Prime Minister’s announcement on 10 May 2020 those that could not work from home were permitted to go to work, such as in construction and manufacturing. 

In addition, on 15 June significant changes were made to ease restrictions on business closures. These changes mean that further businesses and venues can open, in particular non-essential retail. Further easing to the restrictions on business closures have been announced on 23 June, with restaurants, pubs and hairdressers due to reopen from 4 July. 

Workplaces are beginning to reopen but not as they were, as they will need to be in the context of a pandemic.

On 11 May, the Government published sector specific guidance to set out what is expected of employers in making workplaces safe for workers to return. Workplaces must be ‘Covid-secure’ and the Government has set out its guidance on the steps employers must take. The return to work guidance currently covers eight workplace settings:

  • Construction and other outdoor work
  • Factories, plants and warehouses
  • Labs and research facilities
  • Offices and contact centres
  • Other people’s homes
  • Restaurants offering takeaway or delivery
  • Shops and branches
  • Vehicles

In terms of what steps must be taken, the guidance covers similar themes. The key areas that employers will need to focus on include:

  • Carrying out risk assessments to ensure that workplaces are safe
  • Training and informing its workforce on preventative measures, such as frequent hand washing 
  • Permitting employees to carry on working from home wherever possible as a priority
  • Ensure that social distancing in the workplace is observed and putting in place screens, providing PPE and hand washing facilities 
  • Reduce contact between workers including staggering start and finish times, reviewing shift patterns, reviewing rotas, reducing gatherings/ meetings

Employers are encouraged to speak with workers, employee representatives and for trade unions to engage with them regarding the steps taken to make the workplace safe.  Employers have a legal responsibility to protect workers and others from risk to their health and safety.

What’s happening with the furlough scheme?

On 29 May 2020 the Chancellor announced changes to the Coronavirus Job Retention Scheme (CJRS). 

These changes include the introduction of ‘flexible furlough’ from 1 July and the level of grant will be slowly tapered from August to October. 

10 June was the final date that an employer could furlough an employee for the first time, apart from parents on statutory maternity and paternity leave who return to work in the coming months. The number you can claim for in any single claim period starting from 1 July cannot exceed the maximum number of employees you claimed for under any claim ending by 30 June.

The CJRS will run until 31 October. 

As of 16 June, the CJRS has been used by 1.1 million employers, to protect 9.1 million jobs and the total value of claims made is £20.8 billion. 

What is being furloughed?

Furloughing is a scheme for employers who cannot maintain their current workforce because of the conditions caused by COVID-19.

It is a way of placing employees on temporary leave and claiming a grant from the Government to cover a proportion of the employee’s salary. 

As announced on 29 May 2020, the Government will be tapering their support over the final months of the scheme as follows: 

  • From 1 July the Government will pay the employer a grant equal to: 80 percent of the furloughed employee’s pay (capped at £2,500 per month), and the associated employer’s National Insurance Contributions (NICs) and minimum automatic employer pension contributions. 
  • From 1 August the Government will pay the employer a grant equal to: 80 percent of the furloughed employee’s pay (capped at £2,500 per month). Employers will be required to meet the cost of employer’s NICs and pension contributions.
  • From 1 September the Government will pay the employer a grant equal to: 70 percent of the furloughed employee’s pay (capped at £2,187.50 per month).  Employers will be required to meet the cost of employer’s NICs, pension contributions and 10 percent of wages to make up to 80 percent.
  • From 1 October the Government will pay the employer a grant equal to: 60 percent of the furloughed employee’s pay (capped at £1,875 per month).  Employers will be required to meet the cost of employer’s NICs, pension contributions and 20 percent of wages to make up to 80 percent.

Up to 1 July, in order to claim under the CJRS an employee must have been furloughed for 3 consecutive weeks and must not ‘undertake work’ during this period. The Government is now introducing furlough flexibility to allow a smooth transition back to work. On 12 June, the Government published updated guidance that sets out a complex mechanism under which employers can flexibly furlough its staff from 1 July.

How will flexible furloughing work?

From 1 July 2020, previously furloughed employees can work for their employers for some days (or part days) and be furloughed for others. For example, an employee could work on Monday and Tuesday and be furloughed on Wednesday, Thursday and Friday. Any working pattern is permitted. 

The rules about what an employee is (and is not) permitted to do when furloughed still apply to the hours/days that they are furloughed.

Where flexible furlough is being used, there are additional record keeping requirements and employers are required to retain (for six years) records of the usual hours worked by each employee (including details of the calculation used to ascertain usual hours) and the actual hours worked.

The guidance states that you need a “new written agreement” to confirm the new furlough arrangement.  

How is the furlough grant calculated for an employee who is flexibly furloughed?

The employer is required to calculate “usual hours” in order that it can be compared with the actual hours worked. There are two different calculations that can be used to work out the employee’s usual hours, depending on whether they work fixed or variable hours.

The Government has prepared examples and has updated its calculator. See: https://www.gov.uk/government/publications/find-examples-to-help-you-work-out-80-of-your-employees-wages/examples-of-how-to-work-out-80-of-your-employees-wages-national-insurance-contributions-and-pension-contributions#fixed-hours

Any furlough claim before 30 June must be made by 31 July 2020.

After 1 July, employers cannot make claims that cross calendar months, a claim must start and end within the same calendar month. 

It is possible to make more than one claim in each month, but each claim must be for a period of at least seven calendar days. 

The only exception to the seven-day claim is if you are making a claim for a few days at the beginning or end of a month (e.g. if you pay weekly and the month end results in a week being split across two months). There, you will need to make two claims (one for each month).

I have notified employees that they will be placed on furlough leave, but I have not received a written agreement from them. Does that mean I can’t claim the money back under the CJRS?

The guidance issued by the HMRC states that to be eligible for the grant, employers must have confirmed to their employee(s) (or reached collective agreement with a trade union) in writing that they have been furloughed. The employer must make sure that the agreement is consistent with employment, equality and discrimination laws and keep a written record of the agreement for 5 years. A response from an employee is strongly recommended to avoid disputes later. 

Please note the position is different for employees who are flexibly furloughed. If you flexibly furlough employees, you’ll need to agree this with the employee (or reach collective agreement with a trade union) and keep a new written agreement that confirms the new furlough arrangement. From 1 July, agreed flexible furlough agreements can last any amount of time. Employees can enter into a flexible furlough agreement more than once.

Can annual leave be taken during furlough leave?

Annual leave continues to accrue during furlough leave. 

The latest guidance issued to on 13 May 2020 states that employees on furlough can take holiday without disrupting their furlough. Employers should however pay furloughed employees their normal (pre-furlough) rate of pay in respect of those days. Where this calculated rate is above the pay the worker receives while on furlough, the employer must pay the difference.

Employers can require workers to take holiday and/or cancel a worker’s holiday, if they give enough notice to the worker. 

The required notice periods are double the length of the holiday if the employer wishes to require a worker to take holiday on particular days and notice of equivalent to the length of the planned holiday if the employer wishes to cancel a worker’s holiday or require the worker not to take holiday on particular dates.

Employers can ask workers to take or cancel holiday with less notice, but need the workers’ agreement to do so.

If an employer requires a worker to take holiday while on furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday.

What happens to bank holidays that fall during furlough?

If a furloughed employee usually works bank holidays then their furlough will be unaffected. If the employee usually has bank holidays off, the employer will need to either top up their pay to their usual holiday pay or give the employee a day off in lieu instead.

If the employer decides to continue to treat the bank holidays as statutory annual leave while on furlough then employees should be paid at their normal rate. This means that the employer will need to top up the employees’ pay for those days.

Employers may choose to cancel the bank holidays and require employees to take them later on in the year, with the option that any unused holidays can be transferred into the following holiday year and under new legislation where it has not been reasonably practicable for an employee to take some or all of their holiday entitlement the untaken amount may be carried forward into the following 2 leave years.  

If an employee is unable to come into work because of school closures, are they entitled to be paid?

It depends on the specific situation.

Normally, in the event of an emergency employees can take dependent leave to make alternative arrangements for childcare. However, with schools still shut to the majority of students apart from the children of key workers and certain school years for the time being, you will need to consider how practical it is for employees to work from home while looking after children. The younger the child, the more challenging situation.

If an agreement cannot be reached, then you can offer unpaid leave. Employees who have more than one year’s service can also request unpaid parental leave. This is limited to four weeks per child, per year, for the purposes of caring for a child under the age of 18.

Are employees and workers who self-isolate entitled to any payments?

Employees and workers must receive Statutory Sick Pay (SSP) if they are off work and any of the following apply:

  • they have coronavirus symptoms
  • they are self-isolating because someone they live with has symptoms
  • they are self-isolating because they’ve been notified by the NHS or public health authorities that they’ve come into contact with someone with coronavirus
  • they have a letter from the NHS or a GP telling them to stay at home for at least 12 weeks (called ‘shielding’)

Employees and workers and employees can claim SSP from day one of absence (removing the waiting days) where they are required to self-isolate for any of the above reasons.

The latest guidance is that if anyone has symptoms, they must self-isolate for 7 days if they live alone. If you live with others and you are the first in the household to have symptoms of coronavirus, then you must stay at home for at least 7 days. All other household members who remain well must stay at home and not leave the house for 14 days.

SSP does not apply to those self-isolating as a result of entering or returning to the UK.

Employees may be entitled to enhanced sick pay if their contract gives this benefit.

The Coronavirus Statutory Sick Pay Rebate Scheme has been introduced by the Government allowing employers to claim back employees’ coronavirus related SSP (SSP cannot be reclaimed if an employee is off sick for any other reason). Employers with fewer than 250 employees will be entitled to claim back the cost of providing 14 days of SSP per employee from the Government. 

You can claim back from both the CJRS and the SSP rebate scheme for the same employee but not for the same period of time.

What should we do if an employee, who does not have any symptoms, does not want to come into work due to the fear of catching the virus?

You should speak to the employee to understand their concerns.

There could be any number of reasons someone does not want to come in to work, such as having an underlying medical condition or living with someone else who is deemed high risk. They also need to consider whether the employee can work from home.

Ultimately you will have to decide whether the employee’s refusal is reasonable or not.  If it is, then you could consider granting unpaid leave or time off as holiday. If the refusal is unreasonable, then you may consider what action to take using existing procedures, such as the disciplinary policy. 

It is important to be mindful that employees and workers are protected by discrimination law against unfair treatment and dismissal (even when they have less than 2 years’ service) if it is because of, for example, pregnancy, age or a health condition that is considered a disability. 

Can you lay-off employees temporarily?

Yes, if you have the express contractual right to do so.

In the cases where employers do have it, many are considering temporary lay-offs (where an employee is asked to stay off work unpaid for a temporary period) and / or short-term working (where an employee is asked to work fewer than their regular contracted hours). 

If a contract does not contain these rights, an employee could resign and bring a claim for constructive unfair dismissal or unlawful deduction from wages.

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