Coronavirus: FAQs for employers

 What do you need to know and what action do you need to take? 

Contents

Workplace closures; and workplace health and safety
Who can come to work, and how do we manage different scenarios?
Self-isolation and sickness absence
Travel
Refusing holiday requests / insisting that workers take holidays
Discrimination
Managing a downturn in work / redundancies
Recruitment to cover shortages
Emergency Volunteer Leave
Data protection
Immigration
Volunteer reservists
Employment tribunals
General legal obligations; Government support for the self-employed

Workplace closures; and workplace health and safety

These issues are discussed at Coronavirus: Workplace health and safety.

Who can come to work? How do we manage different scenarios?

Even if your workplace is open, all staff should still be working from home if possible. The following table provides guidance on managing staff in different scenarios:

Scenario

Employers response

Incapable of work due to illness (whether or not they have tested positive for coronavirus).

The employee will have a right to any sick pay which is due under the terms of their contract or Statutory Sick Pay (SSP) (if they qualify under the normal rules - see Sick Pay).

Well enough to work, but adhering to medical / government advice to self-isolate for a set period of time i.e:

  • Has symptoms of coronavirus;  
  • Lives with someone, or is in a 'bubble' with someone, who has symptoms;
  • Has been advised to stay at home through the 'test and trace system'/'test and protect scheme'

If an employee is well enough to work from home, and they have appropriate homeworking facilities, you can ask them to work from home, in which case you would pay them as normal. However, if they cannot work from home:

Statutory sick pay (SSP) 

SSP regulations (in force from 13 March 2020) provide that a person who is isolating themselves from others in order to prevent infection or contamination with coronavirus, in accordance with points 1, 2 or 3 below, and because of that isolation is unable to work, is deemed to be incapable of work and therefore eligible for SSP (if they meet the other conditions - see Sick Pay).

A person is isolating themselves to prevent infection or contamination with coronavirus if they:

  1. Have symptoms of coronavirus, however mild, and are staying at home for 7 days, beginning with the day (“day 1”) the symptoms started; or
  2. Live with someone who is isolating as per (1) above, and are therefore staying at home for 14 days, beginning with day 1 (from 6 July 2020 this was also extended to anyone self-isolating because they are in a extended or linked household (i.e. a bubble) with someone who has symptoms); or
  3. Are staying at home under (2) above, and develop symptoms of coronavirus, however mild, and are staying at home for 7 days, beginning with the day the symptoms started.

If someone is staying at home in terms of (3) above, point (2) no longer applies to that person.

Prior to 13 March 2020, both the government and ACAS were recommending that you pay SSP to these individuals.

Further SSP Regulations were introduced from 28 May 2020 which provide that, in addition to the above, a person will also be deemed incapable of work when they are isolating themselves because:

  1. They have been advised by a relevant notification that they have come into contact with a person who, at the time of the contact, had COVID-19; and
  2. They are staying at home for 14 days from the latest date which the contact occurred or, if sooner, the date specified in the latest relevant notification.

Anyone who is entitled to SSP when self-isolating can receive it from the first day off work, not the fourth as is usually the case - this applies from 13 March 2020.

Employers with less than 250 eligible employees (as of 28 February 2020) are eligible to receive reimbursement for any SSP which they have had to pay their employees as a result of coronavirus. The reimbursement will be limited to two weeks per eligible employee who has been off work due to coronavirus. This will apply to absences from 14 March 2020 onwards.

Additional contractual sick pay

Whether employees are entitled to additional contractual sick pay (over and above SSP) will depend on the terms of their contract. For those who are not 'sick' (i.e. don't have symptoms) it is unlikely their contract will entitle them to contractual sick pay. Some employers are prepared to pay normal sick pay to employees in this situation even although they are not entitled to this via their contract - however, if you do this, you should make clear that this is a gesture of goodwill, and is not required by the contract, and will be subject to regular review.

Pregnant women

Pregnant women are classed as being at greater risk from COVID-19. Government advice is that pregnant employees should work from home where possible. As such, if they can work from home in their normal role, you should allow them to do so.

If it is not possible for pregnant employees to work from home in their normal role, you should consider whether there is suitable alternative work available that they can do from home and, if so, offer this work - see Maternity: Health and Safety for a discussion of suitable alternative work.

If there is no suitable alternative work that can be done from home, you should carry out a risk assessment regarding their current on-site role. Can you implement measures to avoid the risks associated with COVID-19? In particular, UK Government guidance advises that pregnant employees should keep 2m distance from others. Businesses in Scotland also have a legal duty to take all reasonable measures to comply with social distancing rules, in particular ensuring that a distance of two metres is maintained - failure to do so will be a criminal offence. To avoid risks, and implement social distancing, you may need to alter working conditions or hours of work.

If this is not reasonable or you cannot avoid the risks in her current role, is there a suitable alternative on-site role available that is safe (in light of a risk assessment of that alternative role)? If so, offer this work.

If there are no roles which would allow a pregnant employee to keep 2m distance from others, the UK Government guidance advises that you should carefully assess whether the work involves an acceptable level of risk - however, we would advise that you contact us for advice before allowing a pregnant employee to work in a role in which she cannot maintain 2m social distancing.

If there is no suitable alternative work, or the employee reasonably refuses it, it is likely that you will need to suspend the employee on full pay for as long as necessary to avoid the risks posed by COVID-19 - see Maternity: Health and Safety - this also explains that, if an employee is absent due to maternity suspension on health and safety grounds after the beginning of the 4th week before the EWC (but before the date she notified as her chosen start date for maternity leave) her maternity leave will start automatically on the day after the first day of her absence in that 4-week period. If the employee unreasonably refuses your offer of suitable alternative work, you can suspend her without pay for as long as necessary to avoid the risk.

As to whether placing a pregnant employee on 'furlough' via the Coronavirus Job Retention Scheme is an option, rather than maternity suspension on full pay, you should contact us for advice on your particular circumstances. It is unlawful to select a woman for furlough because she is pregnant, in order to avoid your health and safety obligations to adapt her role, offer her alternative work, or suspend on full pay. Contact us if you would like to discuss your individual circumstances. 

'Shielding' i.e. high risk and advised to stay at home 

Some individuals, with certain underlying health conditions, have received individual notifications from the government advising them that they are extremely vulnerable to coronavirus, and should protect themselves by shielding.

The Scottish list of those advised to shield is here. The English list, which is very similar but not identical, can be found here.

The latest Scottish government advice for those shielding in Scotland is here. This advises that shielding should continue until 31 July. We will update this page if further guidance is issued regarding a return to work after 31 July.

The latest UK government advice for those shielding in England is here. This advises that shielding will be paused in England from 1 August. From that date, individuals who have been shielding can go to work, if they cannot work from home, so long as "the business is COVID-safe". They are also advised to continue to follow strict social distancing. So, in England, from 1 August, if those who are shielding are able to work from home, you should continue to allow them to do so. If they cannot work from home, they can return to work, but only if the business is 'COVID-safe'. The guidance does not define 'COVID-safe' but it may be possible to demonstrate that your business is COVID-safe if you have adhered to the latest government guidance for your workplace and the HSE guidance, and the individual is able to adhere to strict social distancing.

Until shielding ends, you cannot ask these individuals to attend work. If they can work from home, you should allow them to do so. If they cannot work from home in their current role, consider whether there is alternative work they could carry out at home on a temporary basis - however, this would be a change to their contract - see Changing Terms and Conditions for advice on managing this.

The government guidance on the Coronavirus Job Retention Scheme indicates that you can 'furlough' these workers if they are unable to work from home.

Although this was not originally the case, amended Regulations now allow for these individuals to receive statutory sick pay, however, the notes to these Regulations explain that statutory sick pay is only intended to be used as a safety net if an employer decides not to furlough these individuals, and they cannot work for home, and they are not covered by another of the employer's policies (such as a 'special leave' policy, which might provide for pay in these circumstances).

Aged 70 or over, or underlying health condition which increases their risk of coronavirus (but not within the group advised to shield)

Arrange for these employees to work from home in their current role, if possible.

If this is not possible, UK Government guidance advises that you should consider if there is an alternative role they can do from home. However, this would be a change to their contract - see Changing Terms and Conditions for advice on managing this.

If this is not possible, consider the following:

  • Carry out a risk assessment regarding their current on-site role. Can you implement measures to control risks? In particular, UK Government guidance advises that these employees should keep 2m distance from others. Businesses in Scotland also have a legal duty to take all reasonable measures to comply with social distancing rules, in particular ensuring that a distance of two metres is maintained - failure to do so will be a criminal offence.
  • If this is not possible in their current role, the guidance advises that they should be offered the option of the safest available on-site roles, enabling them to stay 2m from others.
  • The guidance advises that if they have to spend time within 2m of others, you should carefully assess whether this involves an acceptable level of risk. However, we would advise that you contact us for advice before allowing an employee in this category to work in a role in which they cannot maintain 2m social distancing.
  • If any employee (including those over 70, or with an underlying health condition) refuses to attend work, because (i) they reasonably believe that there is a 'serious and imminent danger' – which could be the case if you have not taken suitable steps to protect against coronavirus; and (ii) the employee cannot reasonably be expected to avert the danger (for example, by maintaining social distancing and adhering to other measures you have put in place), then it would be automatically unfair for you to dismiss them, and unlawful for you to subject them to a detriment (such as a disciplinary sanction) as a result.
  • If an employee is disabled, you may need to make 'reasonable adjustments'.
  • Insisting that these individuals attend at a workplace could amount to age or disability discrimination, unless you can objectively justify your approach.
  • If they are not at work, what will you pay them? They will not be entitled to statutory sick pay. Check their contract to see if it entitles them to contractual sick pay in these circumstances, but this is unlikely.
  • Can you place these employees on 'furlough' via the Coronavirus Job Retention Scheme? So far, unlike those who are 'shielding', it does not appear that these employees are covered by the Coronavirus Job Retention Scheme simply because of their age / health condition - but it may be that you can include them in a group of workers being furloughed for other reasons - see our FAQs on furlough
Contact us if you want to discuss how to manage these workers in your organisation.

Employees who live with a vulnerable person, or are just concerned about coming to work

If an employee is not vulnerable themselves, they may still be reluctant to attend work due to concerns about COVID-19, particularly if they live with a vulnerable person. As with all employees at present, they should be working from home if possible. However, if this is not possible, consider the following:

  • Listen to their concerns, and reassure them as far as possible, highlighting the steps you are taking to reduce risks. UK Government guidance on workplaces states that you should pay 'particular attention' to those who live with individuals who are shielding, but gives no other specific guidance on managing these individuals.
  • If appropriate, explore alternative working arrangements. You might want to explore whether they can do an alternative role from home, perhaps on a temporary basis, but this would be a this would be a change to their contract - see Changing Terms and Conditions for advice on managing this.
  • If they don't come to work, they won't be entitled to statutory sick pay, and it is unlikely you will want to pay them as normal.
  • Government guidance on furlough advises that an individual can be furloughed if they are unable to work because they need to stay at home with someone who is 'shielding'.
  • In some cases, you might want to suggest that they take a period of annual or unpaid leave.
  • Ultimately, in some cases, it may be appropriate to commence disciplinary proceedings on the basis of their non-attendance but you should always follow a fair disciplinary process, and consider all the circumstances. In particular, bear in mind that if an employee refuses to attend work, because (i) they reasonably believe that there is a 'serious and imminent danger' – which could be the case if you have not taken suitable steps to protect against coronavirus; and (ii) the employee cannot reasonably be expected to avert the danger (for example, by maintaining social distancing and adhering to other measures you have put in place), then it would be automatically unfair for you to dismiss them, and unlawful for you to subject them to a detriment (such as a disciplinary sanction) as a result.

It is possible to envisage a scenario where an employee becomes so worried about contracting coronavirus that it causes anxiety symptoms to occur, or worsen if they have a pre-existing condition. If an employee is off sick as a result of anxiety, they would have a right to sick pay, in accordance with the terms of their contract. However, a general concern or apprehension about the impact of coronavirus and the possibility of contracting it should be treated as mentioned above and not be mistaken for anxiety which would justify paid sick leave. Mental ill-health has more information on managing absences caused by mental ill-health.

Unable to work as normal due to childcare issues

Time off for dependants

Employees have a statutory right to 'time off for dependants': they are entitled to a 'reasonable' amount of time off to take action which is 'necessary' in particular circumstances. Time taken off under the statutory right is unpaid, unless you have a policy which provides for payment (or the employee's contract entitles them to payment).

This type of statutory leave is usually intended for short periods of absence to resolve an unexpected situation. In many cases, employees will use this leave if their children are unwell, just until they can arrange alternative childcare, perhaps with grandparents. In light of the potential impact of coronavirus on older people (in particular in light of the guidance for over 70's to limit social contact), however, and government guidance regarding social distancing, it will be very difficult for most parents to find alternative childcare. The exceptional circumstances we are experiencing could justify a longer period of absence being classed as time off for dependants, however, this may vary case to case. Contact us if you want to discuss a particular situation. For more detail on how this right works, and the circumstances in which employees will be eligible, see Time off for Dependants.

Parental leave

Employees can request parental leave if they meet the eligibility conditions (which include having at least one year's service) and give you appropriate notice (usually at least 21 days' notice, but you might be prepared to waive this in the circumstances). In most cases, this would entitle them to take four weeks' leave per child (under 18) in any year (provided they have not already reached the maximum of 18 weeks in total). This will be unpaid, unless you offer an enhanced parental leave scheme which includes a right to pay.

Flexible working

It is not usually appropriate for employees to work from home whilst also providing childcare - particularly with younger children who need constant attention. However, given the current situation regarding school closures, employees may be keen to try and at least continue with some work where possible.

You may want to explore flexible options, for example, can parents split childcare, so that both parents can at least work part-time? Is there an option for your employee to work outside of their normal working hours, when another parent is available to provide childcare? Keep in touch with employees to assess how any arrangements are working. 

Furlough

Employees who are unable to work because they have caring responsibilities can be furloughed. So, employees who have to look after children can be furloughed. For more information on furlough, see our Furlough FAQs.

What proof of the need to self-isolate can we ask for?

In any cases (not just coronavirus), in terms of paying statutory sick pay (SSP), you are only entitled to ask for 'reasonable evidence' of incapacity after the first 7 days of sickness absence - you cannot insist on medical evidence for the first 7 days of sickness absence as a condition of paying SSP.

The government has advised that anyone developing symptoms of coronavirus, however mild, should self-isolate for 7 days, and others in their household should also self-isolate for a period of time in line with government guidance. The government has advised that individuals do not need to call their GP or NHS24 (NHS 111) to self-isolate. They are only advised to contact their GP or NHS24 if symptoms worsen or are no better after 7 days. 

People who are unable to work for more than 7 days because of coronavirus, can now obtain an isolation note through an online service, without contacting a doctor - this will provide employees with evidence that they have been advised to self-isolate due to coronavirus, either because they have symptoms or they live with someone who has symptoms.

The notes can be accessed through the NHS website. After answering a few questions, an isolation note will be emailed to the user. If they don’t have an email address, they can have the note sent to a trusted family member or friend, or directly to their employer. The service can also be used to generate an isolation note on behalf of someone else.

What if we suspect that an absence is not genuine?

In light of the online system for obtaining an isolation note, it will be very difficult for employers to determine whether absences are genuine.

Don't accuse employees of 'malingering', particularly if they have an isolation note, without firm evidence on which to base the accusation. The most effective practical steps you can take are:

  • Carry out effective return-to-work meetings after each absence, as these can be a deterrent. If individuals are working from home, you should still aim to carry these out remotely.
  • Monitor absences rates, and consider how to manage particularly high levels of absence - see also below as regards trigger points.
  • If you have information which suggests that an employee's absence is not genuine - for example, you have evidence that they were not in fact self-isolating - it may be appropriate to commence a disciplinary investigation. However, follow an appropriate disciplinary process, and don't make snap decisions - there may be a good reason for an employee being outside of their home.

Should we count coronavirus-related absences towards our absence 'trigger points'?

Many employers have 'trigger points' in their sickness absence policies (for example, a certain number of absences in a 12-month period, or a certain length of absence), after which they will commence an absence management process with an employee. 

There is no definitive legal position on whether you should / should not take coronavirus-related absences into account for the purposes of absence management trigger points. However, if you were to take disciplinary action against an employee in respect of absences, and those absences included coronavirus-related absences which the employee took in line with government guidance, there is a risk that such disciplinary action would be unfair. Also bear in mind that you may have to make adjustments to trigger points for disability-related absences

We understand that some employers are not counting coronavirus-related absences towards trigger points, but contact us if you would like to discuss your own circumstances. We discuss above what you should do if you consider that an absence is not genuine.

What steps should we take in the workplace if a worker tests positive for coronavirus?

Government advice is set out at: COVID 19: guidance for employers.

If an employee refuses to self-isolate, can we prevent them from accessing our premises? 

As an employer you are under a duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees and anyone else who might be affected by your business. Therefore, you would be responsible for ensuring that those who should be self-isolating do so, particularly if your workforce includes individuals in higher risk categories.

In the first instance you should remind the employee of the risks they pose to others by not self-isolating. If that is not successful, you could consider the option of suspension. Before deciding on whether to suspend, you should check if you have the right to suspend under the employees' contract. If you do not, contact us before taking any further action.

What are the restrictions on business and personal travel?

The government continues to advise against 'all but essential' international travel, except to the countries and territories listed on this page. The EU has also issued recommendations on the easing of travel restrictions (read more here). EU countries do not have to accept the recommendations, but it is likely that they will start to implement these changes. Anyone planning to travel to the EU should check the information on the government website for the specific country concerned or take advice locally.

From 8 June 2020 a requirement was introduced to require certain individuals to self-isolate for 14 days and/or to complete certain contact details on arrival in England/Scotland (here is a link to the rules; and read more in our blog about the requirement to provide information and the restrictions that apply during self-isolation). However, there are a number of exemptions:

  • Sector specific / role specific exemptions: England summarised here.
  • Sector specific/ role specific exemptions: Scotland which can be found here (and which differ from the English restrictions)
  • 'Travel corridor' exemptions will apply to certain countries and territories with effect from 10 July 2020 for England. That means that from 10 July 2020 individuals will not have to self-isolate when they arrive in England, if they are travelling or returning from one of the countries listed in the exemptions provided that the individual has not been to or stopped in a country that’s not on the travel corridors exemption list in the previous 14 days. The travel corridors list is here - check for updates before arranging any travel as it may change.
  • The Scottish Government has not yet announced whether it will recognise the same list of countries in relation to travel corridors. The Scottish Government is expected to publish further information on its website in due course in relation to any such travel corridors. If there are any differences in the list, this may cause difficulties/ complexities for those travelling between England and Scotland as different self-isolation requirements would apply in each nation.

These rules are relevant if you are hosting business visitors to the UK. The rules are also relevant if any of your employees may be impacted by the restrictions for personal or business travel.

If arranging overseas business visits outside of the UK check what local requirements may apply in the country that the visitor is travelling to, as well as considering self-isolation requirements on their return.

If you insist on business travel that is 'non-essential', you could be in breach of your health and safety obligations, and duty of trust and confidence. It could also result in a personal injury claim if the employee falls ill as a result. 

Read more in our travel restriction blogs here and here.

If employees go abroad, will they need to self-isolate for 14 days on their return?

Yes, unless they are exempt from self-isolation under the rules.

If any of your employees are planning any overseas travel for personal purposes, discuss the quarantine requirements with them before they go. If the employee is not able to work from home on their return, you will need to decide what will happen on their return to the UK. Options may include a period of unpaid leave, or a period of extended annual leave to cover the self-isolation period. Contact us to discuss how to deal with this in practice.

Read more in our travel restriction blogs here and here.

If we are hosting a business visitor to the UK, what do we need to do?

Ensure that they are aware of the requirements and arrange suitable accommodation for them to self-isolate in. The timing of their visit will need to factor in the period for self-isolation. You may also want to check that they have suitable travel arrangements in place once they land in the UK to take them to their accommodation to self-isolate.

Read more in our travel restriction blogs here and here.

Can workers carry over holidays they haven't been able to take due to the Coronavirus outbreak?

Workers are entitled to 5.6 weeks' statutory annual leave each year: normally, 4 of these weeks must be taken in the relevant leave year (other than in some cases involving sickness or maternity leave), and the remaining 1.6 weeks can only be carried over if the worker's contract allows for this. Many workers also have additional contractual holiday entitlement over and above this - whether they are entitled to carry this over (or you can insist on it being carried over) will depend on the terms of their contract.

However, the Working Time Regulations have been amended so that workers are entitled to carry forward up to 4 weeks of their statutory holiday entitlement into the next two holiday years immediately following the holiday year in which it was due, if it was 'not reasonably practicable' for them to take the holiday 'as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society)'.

Government guidance sets out various factors to consider when you are determining what is 'reasonably practicable', such as:

  • whether your 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 you taking alternative practical measures;
  • the extent to which your workforce is disrupted by coronavirus and the practical options available to you 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;
  • the ability of the remainder of your available workforce to provide cover for the worker going on leave.

The guidance states that you should try to 'do everything reasonably practicable' in order to ensure that the worker can take as much of their holiday as possible in the leave year to which it relates. Where this is not possible you should provide them with the option to take it at the' earliest practicable opportunity'. Contact us to discuss how this might work in practice.

Importantly, the amended Regulations mean that workers are entitled to carry forward these holidays if they want to do so; but do not give you the right to insist on this carry-over.

If a worker does carry forward some holidays under this provision, you will only be able to refuse a holiday request in respect of that carried-forward holiday if you have a 'good reason' for this - it is not clear from the legislation what will amount to a 'good reason'. 

Where a worker has carried forward holiday, it is generally best practice to allow them to use their entitlement for the new leave year first, as this entitlement will expire before the carried forward entitlement (which lasts for two years). Contact us for more information.

Can we refuse holiday requests (for example, if we need staff to remain at work now, or if we receive multiple requests for holiday later in the year)?

Depending on your type of organisation, and the levels of sickness absence at present, you may have an acute need for staff at this time, and may want to refuse holiday requests. On the other hand, some staff may be reluctant to take holidays at present, as they will be unable to travel. Either way, when the coronavirus outbreak eases and the travel ban is lifted, you may well receive too many holiday requests to accommodate at the same time.

In terms of the Working Time Regulations, you can refuse a request for leave, provided you give as much notice as the amount of leave requested (i.e. two weeks' notice if two weeks' leave is requested). However, many contracts of employment disapply this rule – for example, your contracts might state that an employee must comply with your holiday procedure, and that you can refuse requests – check your contracts and any holiday policy or procedure, and contact us if you need to confirm the position in your own case.

Refusing all, or many, requests, may leave you with little time later in the year to accommodate everyone. Normally, you should not refuse requests if it would mean that an employee would be unable to take their full statutory annual leave entitlement in the relevant leave year - workers are entitled to 5.6 weeks' statutory annual leave each year, and you must normally allow them to take at least 4 of these weeks in the relevant leave year (other than in some cases involving sickness or maternity leave). You must also allow them to take the remaining 1.6 weeks' statutory leave in that leave year unless their contract allows for this to be carried over. If a worker has additional contractual holiday entitlement over and above this, then whether they are entitled to carry this over (or you can insist on it being carried over) will depend on the terms of their contract. 

However, as noted above, the Working Time Regulations have been amended so that workers are entitled to carry forward up to 4 weeks of their statutory holiday entitlement into the next two holiday years immediately following the holiday year in which it was due, if it was 'not reasonably practicable' for them to take the holiday 'as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society)'.

Many workers are likely to want to carry over some of their holiday entitlement. However, whilst the amended Regulations mean that workers are entitled to carry forward these holidays if they want to do so, they do not give you the right to insist on this carry-over.

If you don't usually allow carry-over, you should clarify that your normal policy will continue to apply in the future, and that you are only allowing carry-over in terms of the amended Working Time Regulations and / or the exceptional circumstances.

If, in future leave years, you want to refuse a holiday request in respect of holiday carried over from a previous leave year due to the effects of coronavirus, then you must have a 'good reason' for doing so. As yet, there is no definition of 'a good reason'. 

Wherever possible apply neutral criteria when prioritising competing holiday requests e.g. first come first served. Strictly speaking, someone with protected rights (i.e. who could bring a discrimination claim) does not get automatic preference over someone without - but you will want to bear in mind the additional discrimination risk that could arise if you refuse a request to someone with protected rights (e.g. a female employee with primary childcare responsibilities who requests time off over the school holidays). Contact us to discuss this further.

Can we insist that staff take holidays?

In terms of the Working Time Regulations, you can give notice to a worker that they must take annual leave on specified dates. The notice must be at least twice the length of the period of leave that the worker is being ordered to take. So if you want to insist on a worker taking 2 weeks' leave, you must give at least 4 weeks' notice.

However, as above, your contracts of employment can disapply these rules – for example, your contracts might state that you can insist on workers taking holidays at a particular time if you give a certain amount of notice, or they might set out particular annual shut-down dates.

The notice does not have to be in any particular form. See our example letter to an employee requiring them to take holiday on specified dates.

In relation to employees taking holidays during furlough - see our FAQs on the Coronavirus Job Retention Scheme.

If you want to ask employees to take a certain number of days holiday, or percentage of their holiday entitlement, by a specified date have a look at our letter requesting staff use up annual leave. This is a request that employees take some holidays, not formal notice requiring them to do so.

Can we cancel a worker's pre-booked holiday dates?

Yes - but you will need to give notice in the same way as discussed above in relation to refusing holidays. You should also exercise caution when doing this, since:

  • You should not cancel leave if this means that an employee will be unable to take their full statutory annual leave entitlement in the relevant leave year. Workers are entitled to 5.6 weeks' statutory annual leave each year - you must allow them to take 4 of these weeks in the relevant leave year, and the remaining 1.6 weeks' statutory leave can be carried over if your contracts allow for this. For anything over and above the basic 4 weeks' statutory holiday, check whether the employment contract gives you the right to insist on carry-over. If not, you will need to get the employee's agreement to this. There are new rules on carry-over of holidays that an employee could not take due to coronavirus - see above.
  • You should have a good reason for the cancellation, and act reasonably (including considering any financial loss to the employee if they are unable to take the holiday) - if you don't, there is a risk that you would be in breach of the duty of trust and confidence (which could lead to a constructive dismissal claim).
  • It could be unpopular and damage employee relations.

If a worker wants to cancel or change their holiday dates, do we need to agree?

The Working Time Regulations don't set out any rules regarding workers who want to cancel pre-booked holiday dates. If your contracts of employment or holiday policy / procedure allow a worker to do this, you should follow your rules for this. However, if you have no pre-existing rules, you are not obliged to agree to the worker's request, but you should act reasonably, for example, taking into account the needs of the business, and the employee's personal circumstances and reasons for wanting to cancel the leave.

If a worker is asking to change their dates, you can refuse to agree to the new dates in line with the advice above on refusing holidays.

Holidays during furlough

For more information on holidays during a period of furlough see our FAQs on the Coronavirus Job Retention Scheme.

What are the discrimination risks associated with responding to the coronavirus outbreak?

It is important to be aware of the potential discrimination risks when implementing measures to respond to the coronavirus outbreak. Consider the impact that the measures will have on certain groups, compared to others. For example, if you are requesting information from employees or workers about their travel plans avoid targeting only certain groups of employees wherever possible, as this could create discrimination or harassment risks.

Bear in mind your duty to make reasonable adjustments for disabled employees, particularly if an underlying health condition means they are at high-risk if they contract coronavirus.

In what will be a stressful time for businesses, it would also be worthwhile reminding all employees (including management teams who may be under increased pressure due to the financial and logistical implications of the virus outbreak) of your equal opportunities policy and acceptable standards of behaviour at work (e.g. their responsibility to treat colleagues of all nationalities equally; the fact that discriminatory treatment, including comments, jokes or remarks will not be tolerated under any circumstances), especially as you may be vicariously liable for their discriminatory behaviour in certain situations. Here is a link to our template equal opportunities policy.

Coronavirus Job Retention Scheme - furloughed employees

We have detailed FAQs on the scheme in our dedicated page: Furlough: Coronavirus Job Retention Scheme.

How should we respond to a downturn in work caused by the coronavirus outbreak?

Please see our dedicated page: Furlough: Coronavirus Job Retention Scheme in the first instance - it is important that you consider that option alongside the others discussed below. The final date by which you can furlough an employee for the first time is 10 June 2020.

There are a number of options for employers who need to manage employment costs as a result of the economic impact of the virus. You could for instance:

  • Ask employees to take annual leave, or give them notice insisting that they do so - see Taking Holidays: Notice;
  • Ask for volunteers to take unpaid leave;
  • Agree new terms and conditions (temporary or permanent) e.g. reduced pay; reduced hours and pay; new or varied shift / rota pattern; adjusted start and finish times; varied commission or bonus terms. See Changing terms and conditions for advice on managing a contractual variation. In the current climate, think carefully about timing and engage with employees early in the process. Consider how to manage the process virtually - this might involve a virtual presentation followed by virtual 1-2-1 meetings. How will written consent be obtained? Contact us to discuss the practical implications of changing terms and conditions just now.

To impose 'lay-off' or 'short time' working there must be a contractual right to do so - see the FAQ below. Another option is to seek voluntary lay-off or reduced hours. This could be an attractive alternative to redundancy especially as the employees preserve their continuity of service; remain in the pension scheme; and can go and work elsewhere temporarily.  

If the impact on the organisation results in the need to make redundancies, your normal legal obligations will apply - see Redundancy.

For further advice on these issues, please contact us. See also, What are our options when the Coronavirus Job Retention Scheme closes?

When can we 'lay off' employees, or impose 'short-time working'?

Please see above FAQ about the new Coronavirus Job Retention Scheme in the first instance.

Broadly, laying off employees means providing employees with no work (and no pay) for a period; while short-time working is providing employees with less work (and less than half a week's pay) for a period. Subject to certain conditions, an employee who is laid off or put on short-time working may be entitled to be paid a statutory guarantee payment for a maximum of five days in any three month period (Statutory Rates); and in certain circumstances (including having been laid off or placed on short-time working for four consecutive weeks or for six weeks in a period of 13 weeks) to resign and claim a statutory redundancy payment.

Lay-off and short-time working are temporary solutions to the problem of reduced work and can be attractive alternatives to redundancies, limiting the costs and delaying dismissals. However, they can only be imposed if there is a contractual right to do so – attempting to impose them if there is none risks unlawful deduction from wages and unfair constructive dismissal claims.

Provisions on lay-off and short-time working are most likely to appear in collective agreements or national industry agreements (which may have been incorporated into employees' contracts of employment). The right to lay-off / impose short-time working may also be implied if it can be shown (by clear evidence) that it has been established in that particular business over a long period by custom and practice (this is a strict test and you should be confident it is satisfied before relying on it). There is also the option of trying to agree the introduction of lay-off or short-time working with employees or their representatives – which might be acceptable where it is clear that the alternative is redundancies.

For more information see Lay-off and Short-time Working.

Collective redundancy consultation: do we still have to consult when the business is in financial difficulty?

Please see above FAQ about the new Coronavirus Job Retention Scheme in the first instance.

If you are proposing to dismiss as redundant 20 or more employees at one establishment within 90 days, you must consult appropriate representatives of affected employees (for 45 days before the first dismissal takes effect if 100 or more redundancies are proposed; 30 days if there are between 20 and 99 proposed redundancies). A failure to do so can lead to a protective award of up to 90 days' gross pay per employee.

There is a limited exception to the obligation to collectively consult where there are 'special circumstances' which render it not reasonably practicable to comply. Whether this is engaged will depend on the particular facts and circumstances. Insolvency is not in itself necessarily a special circumstance, however, a 'sudden disaster' (physical or financial) can be and it may well be that the impact of coronavirus would fall into this category (certainly at the start of the outbreak before the Coronavirus Job Retention Scheme was introduced, and particularly for businesses which were closed with immediate effect). Even if that is the case, take steps to comply with the collective consultation obligations as far as possible (e.g. by consulting for a shorter period) – the fact that there are 'special circumstances' does not mean that the requirements can be ignored completely.

For more information go to: Redundancy Collective Consultation.

Redundancy consultation: how do we consult with employees who are at home?

Many, if not all, employees will be working from home at the time of any coronavirus-related consultation exercise. Advance plan for the practical issues.

  • Video calls will be better than telephone calls where possible: can you set up conference calls / Skype / Zoom to facilitate discussions?
  • Think about issuing guidance on ensuring that meetings are confidential; and encrypting infromation being sent to personal email addresses.
  • Is all the information required for selection / redundancy payment calculations readily accessible?
  • The statutory right to be accompanied does not apply to redundancy consultation meetings but is often offered in the interests of fairness (and should be offered at the final dismissal meeting). If you want to allow this, it should still be possible in a virtual consultation exercise by allowing companions to join the phone or video call. You could, for example, allow break out rooms via Zoom.
  • Explain that a notetaker will be present and that the call should not be recorded.
  • If there is a proposal to make 20 or more redundancies at one establishment within a 90-day period there would be an obligation to consult collectively: see below and at Redundancy: Consultation
  • If you need to elect employee representatives, see Electing Employee Representatives, which provides a step-by-step guide, including information on voting for those who are not in the workplace. See also, How will employee representatives carry out their role remotely?

For FAQs on redundancy and furlough go to the page on Ending Furlough and Lockdown.

Can we withdraw a job offer, or delay a new worker's starting date?

Your options will depend on the stage you have reached in the recruitment process:

  • Before offer has been accepted. You can withdraw an offer before an individual has accepted it, but you should keep clear records to prove that it was withdrawn before being accepted. Ensure you clearly communicate the withdrawal to the candidate, as it will only be effective from the date it is communicated to them. If a candidate accepts a position via post, their acceptance can be effective from the date it is posted.
  • Conditional offer accepted, but condition not met. If your job offer was conditional, and one of the conditions is not met, you can withdraw the offer even if the individual has accepted it. You can do this without giving notice or pay in lieu of notice.
  • Offer accepted, all conditions met. Once an individual has accepted an offer, and all conditions have been met (or you didn't include any conditions in the offer) there will be a contract of employment, and you cannot simply withdraw the offer. If you want to terminate the contract, you will need to give notice or pay in lieu of notice. This is the case even if the employee has not yet started work under the contract. The amount of notice will be as per the terms of the contract (and at least statutory notice). The candidate will be due payment in respect of the time from when they were due to start work. So, if they are entitled to four weeks’ notice under their contract, and you issue notice one week before their anticipated start date, you will need to pay them in respect of the three weeks from that start date. Obviously, you could ask them to come to work for that three-week period – if they refuse you would not then need to pay them for that period. 
  • Gross misconduct. Clearly, if an employee is guilty of gross misconduct (for example, you discover they have lied about their qualifications) you can terminate without notice.

If you withdraw an offer, document your reasons for this:

  • This will support your position in the event an individual alleges, for example, that it was for a discriminatory reason.
  • Although employees generally need two years' service to claim unfair dismissal, for most automatically unfair dismissals (such as those connected with pregnancy) they can claim from day one of employment.

You cannot amend the start date without the employee's agreement; however, if the alternative is that you are likely to terminate the contract, individuals may well be prepared to agree to amend the start date.

Can we delay an employee's return from maternity leave?

When your employee originally gave notice of her maternity leave, you should have advised her of the date this would end, assuming she took her full 52-week entitlement. She can then simply turn up on her expected return date, without giving any further notice, and you cannot delay her return from maternity leave beyond that 52-week period.

If she wants to return early i.e. before the end of the 52 weeks, she can choose to do so, so long as she gives eight weeks’ notice of the early return date (and the notice does not need to be in writing). If you wish, you can accept less than eight weeks’ notice or even no notice, but you cannot insist on longer notice, and you cannot refuse to allow her to return early. Note that an employee does not need to give eight weeks’ notice to return early if you originally failed to advise her of the end date for her maternity leave.

An employee can change her mind about an early return to work date (as many times as she wants) so long as she gives the following notice:

  • To return even earlier she must give notice at least eight weeks before the new return to work date.
  • To return later she must give notice at least eight weeks before the original early return date.

If an employee gives insufficient notice to return early, your options are:

  • You can accept less or even no notice; or
  • You can postpone the employee’s return to work to secure the full eight weeks’ notice (although you cannot delay it beyond the end of the 52-week maternity leave period). If you want to postpone the return to work, you should write to the employee confirming her new return to work date - see our example letter. Note that you cannot delay her return to work in this way if you originally failed to advise her of the end date for her maternity leave (see Employer must give notice of maternity end date).

Can we end a fixed-term contract early?

This is discussed at Ending Fixed-Term Contracts.

Also bear in mind that if you end fixed-term contracts early because of a reduction in work / headcount, then those employees should be included in your headcount when considering whether you need to carry out collective redundancy consultation.

What if we need to recruit staff quickly, to cover shortages or meet increased demand?

Although many businesses are dealing with reduced, or even no, demand at present, there are some organisations which will face increased demand, and may be struggling with staff shortages, particularly those in retail, healthcare or the care sector. If you are in this category, some considerations might include:

  • You may want to streamline your usual recruitment processes. Don't, however, miss out some of the important, or even essential steps, such as checking that a worker has the right to work in the UK, or carrying out criminal record checks where these are necessary for the post.
  • You may have to involve staff in running parts of the recruitment process, who have not been involved with this previously - ensure you make them aware of their duties in respect of discrimination and data protection.
  • Consider using fixed-term contracts.
  • If you are asking for volunteers, rather than paid staff, see Volunteers for general advice on their rights.

Emergency volunteer leave

The right to take emergency volunteering leave is not yet in force - it is not clear when (or indeed if) the government will bring these provisions into effect. Here is a summary of what is expected:

Emergency Volunteer Leave will be statutory unpaid leave which a worker can take for a period of two, three, or four consecutive weeks within a set 16-week 'volunteering period', to volunteer in the NHS or other social care services during the coronavirus outbreak.

To be able to take the leave a worker must give 3 working days' notice to their employer, prior to the start of their leave in the form of an Emergency Leave Certificate. The Emergency Leave Certificate is issued by an appropriate authority (e.g. NHS Commissioner, Secretary of State for Health and Social Care, Scottish Ministers, District, Borough and/or County councils) and certifies that the worker has been approved by the authority as an emergency volunteer and sets out the period during which they will be volunteering.

Certain workers are excluded from taking the leave, including those who are employed by an undertaking with less than ten staff or under a contract of employment in the police service. Other Crown, Parliamentary and National Assembly workers are also excluded.

A worker who takes emergency volunteer leave has the right to:

  • the benefit of all their terms and conditions of employment which would have applied had they not been absent, with the exception of conditions regarding remuneration. They would continue to accrue holiday entitlement and they will continue to get normal pension rights.
  • return to the job which they were employed in before they took the leave on terms and conditions no less favourable than those which would have applied if the employee had not been absent.
  • not be subjected to a detriment or be unfairly dismissed because of the fact that they took, sought to take, or made use of the benefits of, emergency volunteering leave, or because their employer believed that they were likely to take such leave.

Data protection issues 

In managing coronavirus, the personal information you collect from workers is likely to include information on:

  • Health, such as whether they have coronavirus, or some other illness, and whether they have any underlying health condition (including a disability).
  • Close family members, or individuals living in the same house, including information on their health.
  • Holiday / travel plans.

Health information is sensitive personal data, as is information regarding sexual orientation (which could be disclosed in response to questions about family / living arrangements). Stricter rules apply to the use of sensitive personal data.

Ensure that you only collect information for a valid reason, for example, to:

  • manage health and safety risks;
  • comply with your legal duties in terms of managing sickness absence, and paying SSP; and / or
  • avoid discrimination (for example, considering whether an individual is disabled and needs reasonable adjustments).

Only collect as much information as you need, in line with your purpose for collecting it; and then only use the information for that purpose.

Think carefully about security and disclosure. Keep personal information secure, particularly sensitive information.

You should only disclose personal information on a 'need to know' basis. With most other illnesses, it is unlikely that you would be justified in disclosing a worker's health information to their colleagues or third parties. However, given the attempts to contain coronavirus, you are likely to be justified in disclosing some information – but only in so far as is necessary. The Information Commissioner's advice is that you should keep staff informed about cases of coronavirus in your organisation, but that you probably don't need to name individuals, and you shouldn't provide more information than necessary.

On this basis, if someone in your organisation tests positive for coronavirus, think about who needs to know, and how much they need to know – this could vary on a case-by-case basis. In some cases, you may need to disclose the identity of a worker with coronavirus to certain colleagues and some third parties - this may be necessary in order to identify individuals with whom they have been in close contact. In all cases, only disclose as much information as is necessary – for example, even if you are justified in disclosing that a worker has coronavirus, you should not provide colleagues or third parties with additional information on the worker's condition, or their family or travel arrangements.

If you receive a request from a third party for information about any of your workers with coronavirus or the impact of coronavirus on your workers, consider carefully before responding. Remember that individuals may still be identifiable even if you do not share their name or date of birth. Certain public bodies have powers to mandate the provision of information. If in doubt, ask for more information on why the information is being requested and the purpose for which it will be used.

For general information, see also Data Protection: Health Information.

For staff working from home, ensure they are aware of the data protection issues arising from this - such as IT security, maintaining confidentiality when working in a shared space and appropriate destruction of documents if these are printed. This may involve providing workers with additional IT equipment and introducing specific policies on data security and confidentiality when working from home.

You can find more information on data protection issues by reading the below blogs from our Brodies data protection team:

You can also find further information in the below guidance notes: 

Immigration FAQs for employers

On 24 March 2020, UK Visas and immigration introduced special measures to take account of the Coronavirus outbreak and to alleviate the effects for those who have visas expiring in the next few months.  Some frequently asked questions about these measures and also other important immigration issues which employers are asking about in light of the Coronavirus outbreak are set out in our Legal Update COVID-19: Immigration FAQs for employers.

Do we still need to carry out right to work checks?

Yes, right to work checks still have to be carried out. However, on 30 March 2020 the Home Office published guidance confirming that for now right to work checks can be carried out through a live video link as long you have been sent the original document. Therefore, there is no requirement to meet in person. 

The guidance states that retrospective checks must be carried out following the end of the temporary COVID-19 measures.

For more information have a look at the guidance or contact us.

Do we need to pay volunteer reservists if they are called up?

No, army reservists are paid service pay by the Ministry of Defence while mobilised. You will not be reimbursed if you do pay them. Contractual benefits can be suspended; and annual leave does not accrue during mobilisation.

Financial assistance is available to employers in respect of absent reservists (e.g. to cover recruitment and training costs, subject to a daily cap). See Time off for Reservists for more information.

Are employment tribunal hearings still happening?

This is discussed in our blogs: Employment tribunal hearings during the COVID-19 pandemic and Employment tribunal hearings: road map published for the months ahead.

For more information, or to discuss an individual tribunal case, please contact us.

What legal obligations should we be aware of in deciding how to respond to coronavirus?

Health and safety: As an employer, you are under a duty to ensure, so far as is reasonably practicable, the health, safety and welfare of all employees and anyone else who might be affected by your business. Following the outbreak of coronavirus, you should consider: carrying out risk assessments; implementing measures in relation to hygiene (which might include providing cleaning equipment for workstations); how to manage travel and work-related events; and ensuring those who require to self-isolate are kept away from the workplace.

Duty of trust and confidence owed to employees: a breach of the duty of trust and confidence will leave you at risk of a constructive unfair dismissal claim. Ensure, in particular that:

  • you act in accordance with the express terms of an employee's contract (e.g. in relation to sick pay);
  • those employees who don’t require to self-isolate are not overworked to the detriment of their health and safety; and
  • employees are not subjected to humiliating treatment in front of others (e.g. inappropriate or discriminatory behaviour shown toward specific nationalities).

Duty not to discriminate against those protected under the Equality Act 2010: see above.

Duty to make reasonable adjustments for disabled employees: consider whether disabled workers require reasonable adjustments as a result of their disability. For those in high-risk categories as regards coronavirus, this could include arranging more flexible working patterns, or home-working arrangements.

Your options in responding to a downturn in business: see above.

Government measures to support the self-employed

The self-employed income support scheme will entitle those who are self-employed, or a member of a partnership in the UK and who have lost income due to Coronavirus to claim a taxable grant based on their average trading profit over the previous three tax years (2016/17, 2017/18 & 2018/19). 

Eligibility criteria

Self-employed individuals, including members of partnerships, are eligible if they:

  • submitted their Income Tax Self-Assessment tax return for the tax year 2018-19;
  • continued to trade in 2019-20 and intend to keep trading in 2020-21;
  • carry on a trade which has been adversely affected by COVID-19;
  • have average self-employed trading profits of no more than £50,000 and at least equal to their non-trading income.

Individuals can continue to work, start a new trade or take on other employment including voluntary work.

For more details on the scheme, including eligibility criteria, see the Government's guidance. The eligibility criteria are the same for both grants; and individuals will need to confirm that their business has been adversely affected by coronavirus when applying for the second grant. 

First grant

The first grant will be worth 80% of your average trading profits, paid out in a single instalment covering three months of profit (capped at £7,500 in total). Applications for the first grant opened on 13 May and will close on 13 July.   

Second grant

The second grant will be work 70% of your average trading profits, paid out in a single instalment covering three months of profit (capped at £6,570 in total). An individual does not need to have claimed the first grant in order to be eligible for the second grant. Applications will open in August, with further information available on GOV.UK on 12 June.

Other support

Other support for those who are self-employed includes:

  • deferral of Self Assessment Income Tax and VAT payments
  • Small Business Grant Fund
  • Business Interruption Loan Scheme
  • Bounce Back Loan
  • Universal Credit
  • Employment and Support Allowance 
  • Child Benefit.