First published 3rd March 2020. Last updated 12th August 2020 at 5:00pm.
As the impact of the coronavirus outbreak continues to be felt, you may have a lot of questions about how it will impact your business and what you can do as an employer. Here we answer some of your complex HR questions…
Q. One of my employees has just travelled back from overseas and some of my staff are refusing to come into work as a result. Do I have to give these employees time off work with pay?
A. An employee who refuses to work is technically in breach of the terms and conditions of their contract and isn’t entitled to payment for their time off work.
Employees can’t refuse to work as a result of the coronavirus outbreak. But it’s up to you as the employer to assess the situation if an employee is returning to work from an affected area and make a decision based on the most recent information available.
Quarantine requirements are in place for some locations. When an employee is returning from one of these areas, they will be required to self-isolate for 14 days.
Q. Do I have to accept working from home requests and what do I do if I don’t have the right equipment for my staff?
A. The current government guidance states that employees may return to work. If your workplace is set up as such that it is possible for employees to work from home, you may consider this as it will reduce the risk and spread of coronavirus.
However, employees have no legal right to have a request to work from home accepted, so ultimately, it is up to you if you do choose to allow this; the government accepts that this will not be possible for all businesses.
If you’re considering letting your staff work from home, you’ll need to think about their health & safety. You might need to carry out risk assessments to make sure your employees are safe to work from home and check that you’ve got enough equipment to allow them to do so.
Q. An employee is self-isolating to take care of someone with symptoms of the coronavirus, should I still pay them?
A. Anyone who’s followed government guidance to self-isolate because they are caring for someone in the same household as them who has symptoms of the coronavirus will get Statutory Sick Pay if they meet the other qualifying conditions.
Government guidance states that anyone living with others showing symptoms of coronavirus (whether that be themselves or someone else), then all household members should self-isolate for 14 days, starting from the day the first person in the household became ill.
Q. One of my employees is off sick because of the coronavirus. Does the normal Statutory Sick Pay rules apply?
A. The Prime Minister, Boris Johnson, has announced that the normal Statutory Sick Pay (SSP) rules won’t apply to anyone who is off sick because of the coronavirus.
Under normal SSP rules, employees who are off sick must wait three days before the right to SSP kicks in, so they don’t get any pay for these first three days. However, it has been announced that SSP will be paid to employees from the first day of the absence, where the absence is because of the coronavirus. This will apply to any sickness logged from 13th March.
As well as this, emergency legislation has been passed to confirm that a person who is self-isolating in line with Government advice relating to coronavirus, is deemed as being incapable of work and therefore will be entitled to SSP.
Employers with fewer than 250 employees will be able to reclaim SSP for sickness due to COVID-19. This will cover up to 14 days’ SSP per eligible employee where the sickness (or self-isolation) relates to COVID-19. The process for this recovery of SSP is yet to be confirmed.
Q. My employee has plans to travel abroad for personal reasons and I’ve already approved their annual leave, can I stop them from going?
A. As long as there are no travel restrictions in place for the destination they are travelling to, your employee can travel as planned. But you should make sure that your employee is aware of any procedures you have in place and what might happen if travel guidance to and from that destination changes.
While you can justify cancelling business travel, you might put yourself at risk of indirect discrimination claims if you stop employees travelling to a specific location for personal reasons.
Employees are required to self-isolate on returning from certain destinations. If this impacts one of your employees you should discuss this with them prior to their leave to agree how this isolation period will be treated – whether they may work from home, use more of their annual leave or you agree for them to take unpaid leave.
Q. I’m worried about my employees not taking their full statutory holiday leave this year because of COVID-19. Is there any government guidance on this?
A. Yes, the government has announced plans to relax holiday carryover laws for the majority of workers from 27th March 2020.
Under new amendments to the Working Time Regulations, workers can now carryover up to four weeks unused annual leave over the next two years, if they can’t take holidays because of the coronavirus.
As a result of this amendment, you should start tracking holiday carryover for your workers immediately. It’s also worth putting together a holiday carryover policy if you haven’t already, so you can update workers on the new rules. You should communicate these changes to your employees as well so that they’re aware of the update and your company’s expectations for managing requests.
Please be aware that annual leave continues to accrue and may be taken, even if an employee’s laid-off or on furlough. If an employee has leave booked whilst on furlough, the employer should top up their pay to ensure they receive full pay during the period of annual leave.
Q. My employee is suffering from the symptoms of coronavirus. What should I do?
A. As an employer, you have a duty of care to your employees. So if you notice that someone appears to be unwell, discuss this with them privately and check whether they have sought medical advice or are aware of the symptoms of coronavirus and guidance published relating to self-isolation.
If not, they should be made aware of the symptoms and encouraged to review and follow government guidance. Under current guidance, employees are not required to contact NHS 111 unless they feel they cannot cope with their symptoms at home, or symptoms worsen, or the symptoms do not get better after 7 days.
Q. Can I furlough my employee if they have another job?
A. If your employee currently has more than one employer, they can be put on furlough by one employer and continue to work for another, if it is permitted within their employment contract.
If they are put on furlough by more than one employer, they will receive separate payments from each employer. The 80% of their normal wage up to a £2,500 monthly cap applies to each job.
Q. One of my employees is on maternity but due to return in the next few weeks, what should I pay them?
A. An employee on maternity or a similar type of leave can continue to draw the relevant statutory payments. When the employee returns to work, if there is work for them to do they will return as normal, otherwise, you may need to seek to agree a period of furlough in line with the guidance.
Employees who had been on maternity leave may still be placed on flexible furlough, even if they had not been on a period of furlough prior to 10 June.
Q. Can my apprentices be furloughed in the same way as other employees?
A. Yes. Your apprentices can be furloughed and they may be able to continue to train whilst they are placed on furlough. However, for the time spent training, you must ensure you pay them at least the apprenticeship minimum wage, national living wage or national minimum wage as appropriate.
In the event that the amount you can claim falls below the appropriate minimum, you will need to top up the shortfall. The top up is just for the time spent training.
Q. I have an employee on a fixed-term contract which is due to end. Can they be placed on furlough?
A. Yes, subject to scheme guidance. You may also renew or extend a fixed-term contract without breaking scheme terms. If a fixed-term contract ends because it is not renewed or extended, you will no longer be able to claim for them.
Q. I have some employees carrying out training and volunteer work whilst on furlough. Is this ok?
A. Yes, employees may undertake both training and volunteer work whilst on furlough as long as they are not providing services to (or making money for) your company. If your employee is earning less than the national minimum wage whilst on furlough and they spend time in training which attracts the minimum wage entitlement, you will need to cover the shortfall for the time spent training.
Q. Can I make my employees use hand sanitiser?
A. You can’t force your employees to use hand sanitiser. But it is good practice to promote good hygiene within your workplace.
So make sure that hand sanitisers are readily available to your staff and encourage them to wash their hands regularly.
Q. We have transferred employees after 19 March 2020 under TUPE, but the work is now on hold. What happens with the employees who have transferred, can they be placed on furlough?
A. Employees, including those who transferred after 19 March 2020, can be placed on furlough. The new employer is eligible to claim under the coronavirus job retention scheme in respect of the employees of a previous business transferred after 19 March 2020, provided the TUPE or PAYE business succession rules apply to the change in ownership.
A final thought…
It’s important to think carefully about any situation linked with the coronavirus outbreak before you make any decisions that impact your staff.
As an employer, you may risk breach of claims if your employees are laid off without pay, or if employees are laid off with pay but for longer periods than can be justified.
In all cases, you should talk to your staff first before making a decision. This will give them time to make any appropriate arrangements and should make the process run more smoothly. If you have any doubts, seek employment law advice.
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