Episode 158: We explore the ways organisations can be designed to enable flexibility in the face of a crisis, how organisations can and should respond to the coronavirus outbreak and how best to support your workforce through this difficult period.
Q: If we have allowed employees to carry over annual leave from 2020 can we ask them to use it by a particular date?
Many employees will have carried over annual leave from 2020. Special coronavirus regulations introduced in March 2020 allow for this holiday carry-over. In summary, if holiday was “not reasonably practicable” during the pandemic then up to four weeks could be carried over for the next two leave years. Employers can ask employees to use up their annual leave by a certain date, although there are issues to consider (outlined below). Employers may wish to reduce outstanding annual leave once the lockdown ends and businesses return to normal.
Reminder of normal rules
UK workers get 28 days holiday per year including bank holidays. This entitlement cannot normally be carried forward into the next leave year unless the employee:
- agrees this with the employer; or
- is on long-term sickness absence; or
- is on maternity leave and unable to take all of her entitlement as a result.
COVID-19 carry over rules
Under amendments to the Working Time Regulations the normal rules on carrying over annual leave have been modified. The rules apply if it was not reasonably practicable for the worker to take some, or all, of the holiday to which they are entitled due to coronavirus. If so, they can carry over up to four weeks (not the full 28 days) of unused leave into the next two leave years.
This will help support provision of staff in key sectors such as food and healthcare during the pandemic who may have not been able to take holiday as normal (see Working Time (Coronavirus) (Amendment) Regulations 2020). The normal obligations on employers to ensure workers take their statutory entitlement in one year or incur a financial penalty are also lifted.
The COVID-19 holiday amendments to the Working Time Regulations 1998 apply to all employees. Workers who do not have employee status (such as agency workers), and some casual and zero-hours contract workers are also included. The only exceptions are those covered by regulations other than the Working Time Regulations 1998 including some merchant seamen, fishermen, and civil aviation staff, some armed forces staff and doctors in training to whom special rules apply.
Using leave by a particular date
Using leave by a certain date depends upon older standard employment law provisions. These are rarely used by employers but enable them to require workers to take holiday when the employer chooses. The employer must give twice as many days’ notice as the period of leave the worker is required to take. If the employer requires the worker to take two week's annual leave at a certain time, at least four weeks' advance notice must be given. Employers can ask workers to take or cancel holiday with less notice but need the workers' agreement to do so.
Insisting an employee take annual leave during a period of lockdown when government advice prevents them from travelling freely anywhere, is not without risk. Even though employers are entitled to require holiday to be taken, if the employee’s reasons are not taken into account disgruntled employees may attempt breach of contract or even discrimination claims. Employers should consider whether any restrictions including travel restrictions, social-distancing or self-isolation would prevent the worker from relaxing and enjoying their holiday. It may help to acknowledge that travel might not be available but that a beneficial break from working pressures may still be possible. Ideally the employees should agree, which they may do if the employer explains why they need to take annual leave by the certain date.
Q: How can I make sure that employees who have not been furloughed are able to take leave due to them?
Employers can encourage employees who have not been furloughed to take leave due to them in a number of ways.
The first step is to discuss the reasons why the employer wants the employee to take holiday; it may be because the employer is anticipating a busier period later on and wishes leave to be taken before then. Alternatively, the employer may wish to ensure the employee benefits from rest and relaxation by taking as much of their leave as possible. Employers in some sectors will be aware that staff who have been working throughout the pandemic may be at risk of exhaustion and delay to their annual leave may be inadvisable. The rules about annual leave are based on health and safety, so that workers can have a break from working.
Ultimately, employers can force workers to take holiday but it may damage employee relations if employers are too forthright about insisting that employees take leave. A common method of encouraging leave to be taken is a company-wide communication that asks all employees to take a certain percentage of their leave by a certain date.
Under the Working Time regulations, employers can require employees to take leave on fixed dates, providing the employer provides twice as much notice as the period of leave to be taken. Insisting an employee take annual leave during a period of lockdown when government advice prevents them from travelling freely anywhere, is not without risk. Ultimately staff might not want to use annual leave when they feel they can’t do what they used to do. For further details see our Q: If we have allowed employees to carry over annual leave from 2020 can we ask them to use it by a particular date? (above).
Q: We have some employees who are due a lot of TOIL/overtime but are finding it hard to take this time. How would you suggest we manage this?
Employees who are due a lot of TOIL/overtime or normal annual leave may be finding it hard to take this time, so leave is accruing. This is obviously of growing concern for employers who have a duty of care towards employees, especially if they are suffering from stress or potential burnout. The problem is that staff may choose not to take time out away from work if they are still in lockdown or in a high tier restriction and unable to travel or visit family. Others may be unable to book holiday due to the need to continue to work to meet increased demand or provide essential services.
Employers can consider the following:
- Introducing a policy on reasonable notice that asks all employees to take a certain percentage of their leave (say 50%) by a certain date. Remember the rules on carry over (summarised below).
- Managers and business owners can lead by example by taking time off.
- Encouraging employees to take leave proportionately through the leave year, even during any period of higher tier restriction or even lockdown as the purpose of annual leave is a non-working period of rest and relaxation not just travel.
- Encouraging employees to take daily regular breaks away from their desk and the inbox, as well as holiday time offline, even if this is time at home, for their wellbeing and health.
- Ultimately employers can compel employees to take holiday by giving notice of a requirement to take annual holiday which is twice the length of the holiday proposed.
Forcing employees to take TOIL accrued due to overtime or to take their annual holiday entitlement is obviously more contentious than encouraging them to take leave by focussing on the benefits. The law allows employers to force time off to be taken, although this normally applies to annual leave portion and not TOIL. There is a risk that forcing leave at a time when employees can’t travel or visit family could be a breach of the implied term of trust and confidence, or discrimination, giving rise to claims including constructive unfair dismissal and or perhaps race discrimination if those with overseas relatives are prevented from visiting them. Dictating the timing of time off also impairs goodwill and staff relations.
Employees can carry four weeks leave over for up to two leave years following coronavirus legislation in March 2020. This overrides the normal rules which prohibit roll over of the working time annual leave from year to year. Employers and employees can agree similar arrangements relating to TOIL. Further detail on carrying over leave is contained in the Q:If we have allowed employees to carry over annual leave from 2020 can we ask them to use it by a particular date? (above).
Q: Are employees entitled to paid time off during the pandemic if their child’s school is closed for any reason such as national or regional school closures?
In January 2021, the Prime Minister announced that colleges, primary and secondary schools in England will remain closed until 8 March apart from vulnerable children and the children of critical workers. Early years settings such as nurseries remained open.
From 8 March onwards there is intended to be full reopening of all schools and presumably the reintroduction of mandatory attendance for all children. Outdoor after-school sports and activities are also allowed to restart.
Different arrangements apply in the devolved regions:
- Scotland: A phased reopening began on 22 February, with pre-school children and children in P1 to P3 returning to school. Senior pupils who needed to complete essential practical work also returned to school on that date.. Children classed as vulnerable and those of key workers are still able to attend school. This is followed from 15 March by P4 to P7 and more senior phase secondary pupils (on a part-time basis). From 5 April all remaining pupils will return to school. Each phase is dependent on the continued suppression of the virus and the impact of sending the first phase of pupils back will be monitored before the second phase. Senior pupils, teachers and school staff will have at-home testing kits when they do go back. Secondary pupils will also need to maintain a two metre distance in school buildings. That included all children in primary one to three, and those in pre-school, heading back to classrooms.
- Wales: From 22 February three to seven year olds will return to school, along with pupils on vocational courses. A decision about a return date for other pupils is expected on 15 March.
- Northern Ireland: schools in Northern Ireland return on 8 March.
As the government’s back to school plans for 2021 have changed several times, employees may have concerns about the closures and, later on, the ability to reopen safely. The position regarding school openings and closures is complex and can change rapidly. Employers should check government advice regularly. Employers and employees should be as flexible as possible, with employers taking account of staff’s childcare responsibilities and individual circumstances.
Government guidance requires schools to have contingency plans in place for remote learning anyway. These plans should be ready to be triggered in case of closures, national or local lockdowns or for when pupils have to self-isolate. Previously the government outlined potential changes to school attendance as a last resort. Where school closures accompany the lockdown, schools will only allow full-time on-site provision to priority groups such as vulnerable children and the children of critical workers. When this happens remote education should be provided to all other pupils. Alternative government contingency planning has previously suggested that in higher alert levels secondary schools may use two week on site rotas followed by two weeks at home to help break chains of transmission. This may be a method that is considered again should the need arise.
When schools return they will attempt to follow COVID-19 secure measures including testing to reduce the risk of virus transmission. Schools were previously being asked to keep children in class or year group sized 'bubbles' together with protective measures such distancing teachers, increased frequency of cleaning and reduction in use of shared items. These measures will continue with additional advice concerning use of masks in school and testing initially by the schools and then by pupils at home.
Outbreaks in school
If there is a positive case or case in a specific school or college, the Public Health England local health protection team will advise on the appropriate action including groups of pupils and staff being asked to self-isolate at home for up to 10 days as a precautionary measure. Schools plans should include remote education for pupils who are self-isolating.
If a school outbreak in is confirmed a mobile testing unit may be used to test those in contact with the pupil or staff who tested positive. All staff, pupils and their families should have access to testing following the return to school in March 2021 if they develop symptoms and schools should have testing kits for children and staff who have been unable to get a test.
In practice there are a limited number of paid and unpaid options (see below) for employers with employees whose child’s school needs to fully or partially close in response to an outbreak. Employees’ legal entitlements to time off when schools and other childcare providers are closed are fairly restricted. However, if there is a national or local outbreak employers may be closed too. If they are in a different area and are not closed they should discuss matters with the employee and be flexible where possible to decide on the most sensible course, even if that is over and above the statutory legal minimum.
Generally, employers can issue reasonable instructions to employees depending on each individual situation. Employers must have communicated and complied with their health and safety duties whilst taking into account any special vulnerabilities (including any guidance for the clinically vulnerable) and those classified as disabled.
Options during full or partial school closure
The pandemic and it's national and local outbreaks are exceptional circumstances and both employers and employees should take reasonable steps to prevent the risk and spread of the virus and follow the latest national and local government advice. It's crucial that employers remember that the physical, emotional and mental wellbeing of the workforce remains the key principle of managing any return to the workplace.
Since January 2021there has been a further national lockdown which is being progressively lifted between March and June. This still means (until further notice) that people may only leave their home for work if they cannot reasonably work from home. Those who cannot work from home including, but not limited to, people who work in critical national infrastructure, construction, or manufacturing, can continue to travel to their workplace. Other sectors including education, non-essential retail and hospitality are progressively returning to the workplace.
In the event of this lockdown or an outbreak, many office workers can work from home in some capacity and be paid as usual. This is not possible in all cases. Employers must continue to communicate openly with employees and workers, to understand their concerns and perspectives. In many situations if it is not essential for work to happen in the workplace, during the pandemic the default is that employees should continue to work from home. The Government has released guidance on Working safely during coronavirus for employers who have to remain open and are attempting to make workplaces COVID-secure and organisations should keep checking the government website for the latest information.
Difficulties with home working
Home working may be harder for single parents with young children and, because women tend to have more childcare responsibilities than men, employers may discriminate if they facilitate home working for male employees but indicate that it is not working for female ones. If an employee cannot focus at home because of caring for young children it may be possible to agree flexible working arrangements including adjustments to hours and times of work.
Employers of employees who are unable to work from home have a number of other options, which are described below.
The Coronavirus Job Retention Scheme (or furlough) remains open until the end of September 2021 and employees will continue to receive 80% of their salary for hours not worked until the scheme ends. The Government's contribution will be tapered with employers contributing 10% in July, increasing to 20% in August and September.
If schools are closed, furlough remains an option. Employers are not obliged to furlough staff, but if they have less work due to the virus employers may willingly agree to furlough staff although there are some associated costs, in particular regarding employer NICs and pension contributions, and from July, the increasing contribution outlined above.
Earlier government guidance confirmed that:
- Parents whose children cannot attend school could be furloughed under the scheme if the employer agrees.
- Those who cannot continue working because of childcare responsibilities could fall within the scheme.
Employers are always obliged to consider flexible working requests. In the context of localised school closures, there are a number of options available such as spreading working hours out by agreement so that employees can work when younger children are asleep.
Unpaid time off for dependants
Employees have the right to take unpaid time off for dependants which usually lasts only for a short time to organise their care. This period of unpaid leave enables employees to take action necessary because of an unexpected disruption or termination of arrangements for the care of that dependant. This would cover time off to arrange alternative childcare but does not cover extended time off for employees to look after their children themselves.
Unpaid parental leave
Employees who have been with the employer for more than a year can also take unpaid parental leave. Normally notice is needed but employers may agree to shorten the notice period. This leave is 18 weeks per child before the child turns 18 and must usually be taken in blocks of a week with a maximum of four weeks each year.
Sick and self-isolation leave
If parents are self-isolating because they or someone in the household has symptoms of coronavirus, or who has been told to isolate by the track and trace system, then the employees may be able to claim statutory sick pay.
A rare alternative in some situations may be for the employee to take some annual leave. The benefit of this for the parent concerned is that it would be paid at their full rates.
Unpaid and other leave
If employers' operations are likely to be severely affected on a long-term basis, employers may consider plans such as a voluntary special leave policy on a temporary or longer basis where individuals can opt to take paid or unpaid leave. There could be some employees who are willing to take additional time off and would welcome a break, but others may struggle financially if they lose pay. Employers could consider offering a shorter working week or other flexible resourcing arrangements and communicate the business reasons to employees. You may wish to consider short-time and lay-off working arrangements - there's more information on Lay-offs and short-time working on the government website.
Q: How do we respond to an employee who is needed at work but has childcare issues?
Employers should take account of staff’s childcare responsibilities and individual circumstances, and be as flexible as possible in their support. One option for employers with working parents faced with issues due to school closures may be to furlough staff, although this is at the employer’s discretion and there are other options including flexible and home working arrangements (explained below). If an employee is needed at work but has childcare issues, employers should proceed carefully. Ultimately employers may be able to require employees to put other childcare in place so they can return to work, but the initial approach should include fully discussing matters and exploring alternatives.
There may be childcare issues for employees because:
- The school is temporarily closed.
- The school has a class or year group that has to isolate because a pupil has tested positive.
- The school is open but the employee doesn’t feel comfortable sending their child in.
- Their child’s school hours are limited.
- The employee can’t send their child back because they are concerned about a clinically vulnerable adult at home. More information is available in our shielding guide.
In the different scenarios dealt with below, employers should listen to, and attempt to address, the employee’s concerns. Alternative options to consider include whether the employee can be redeployed to a homeworking role, or put on the Job support scheme (while the scheme is in operation), unpaid leave or unpaid parental leave. Other options include annual leave and statutory time off for dependants. Flexible working, part-time working, adjustments to hours and duties and so on, may also be relevant. All these alternatives would need to be agreed. Some employers are reducing the numbers of staff in the office at any one time. For further detail on employers’ options, see the FAQ 'Are employees are entitled to paid time off if their child’s school is closed or their children's year group has not returned?'
The school has a class or year group that has to isolate because a pupil has tested positive. If a class or year group is sent home or a school closes then the employer should discuss matters with the employee to allow the employee to work from home where possible and be flexible where possible to decide on the most sensible course. It may be that the employee is notified to isolate by NHS Test and Trace anyway if they have been in contact with affected pupils.
The school is open, but the employee doesn’t feel comfortable sending their child in. Some employees may refuse to return to work even though schools are open if they feel schools (or their workplace) are unsafe. Employers may be able to require the employee to come into the workplace if it is safe (if work cannot be done from home), in which case the employee will have to try and make alternative childcare arrangements. The employer should listen to the employee’s concerns and consider employees’ proposals about working and accommodate them as far as practicable. Options to consider include continued working from home.
Note on alternative childcare arrangements: Advice on self-isolation and social distancing, especially for grandparents with clinically vulnerable conditions, may make it more difficult for employees to make alternative arrangements for the care of their children, although other members of the same household may be able to assist, or nurseries or childminders could be used as these remain open.
Even during the January 2021 lockdown onwards or where there is a high COVID alert level, registered childcare providers, including nannies, can continue to provide childcare in private homes and gardens. Other ways that parents can continue to access childcare include:
- Vulnerable children and children of critical workers can continue to use a range of childcare including childminders and normal schools.
- People in a support or childcare bubble can also continue to help. A childcare bubble is where someone in one household provides informal (unpaid and unregistered) childcare to a child aged 14 or under in another household. This is to enable parents to work not for social contact.
For further discussion on employees’ entitlement to paid time off during school closures, see our Managing remote working and business closures FAQs.The employee is worried about sending their child back because they are living with a vulnerable adult
If employees are concerned about sending their children back to school because they are worried about a vulnerable adult at home, then the employee may want to keep the child at home. Depending on the nature of the vulnerability, and the age of the child, the clinically vulnerable person may be able to provide some childcare or home education.
Employers can attempt to discuss matters with employees and reach an agreed solution. This could consist of the alternative options referred to above, including furlough, working from home, adjusted working hours, perhaps adjusted tasks that can be undertaken at home or limited non-working time under the Job support scheme. Statutory sick pay is an unlikely option but depends on the exact situation.
If none of these options are feasible, the employee will have to try to make alternative childcare arrangements.
If an employee lives with a highly vulnerable person there is a risk of an associated discrimination claim if employers require those employees to return to work without taking the vulnerability of the vulnerable person into account (although the risks reduce as the vaccination programme is rolled out). Associative discrimination claims may be attempted if an employee is treated less favourably due to the disability of their disabled household member. An employee can claim associative discrimination if they refuse to attend work because someone in their household is shielding or is highly vulnerable. Normally this relates to workplace risks, but the claim could also be attempted because of childcare issues linked to the shielding person.
Risks of disciplining and dismissal
Before the pandemic, an employee refusing to attend work would lead to disciplinary procedures and ultimately dismissal. This remains a final option, but there are many risks in doing so, and all alternative solutions should be exhausted first. If all other options fail, in all employment contracts there is an implied term that employees must follow their employer’s lawful and reasonable instructions. During the national lockdowns many workplaces close, however some remain open including, but not limited to, people who work in critical national infrastructure, construction, or manufacturing - who should continue to travel to their workplace. Employees can potentially be disciplined as a last resort if a continued long-term refusal to attend work is unreasonable.
There is a risk that disciplining employees for refusal to work due to childcare issues will result in a sex discrimination claim. Some employees with mental health issues may be especially anxious about their children or travelling on public transport or returning to work themselves. If an employee’s mental condition constitutes a disability the employer should take extra care in attempting to accommodate their request. Compensation for employees who are found to have been discriminated against is uncapped.
Employers should also remember that as well as concerns about their children, employees may have concerns about the safety of the workplace (see What if our people can't come back - or don't want to travel on public transport?). If employees’ concerns relate to attending the workplace rather than childcare, then they can claim to have suffered a detriment on health and safety grounds, or claim automatically unfair dismissal if the employee reasonably believes there was a serious and imminent danger which led to their refusal to return to work. Whistleblowing claims may also be attempted.
Q: Where a skeleton team has to operate due to sickness, test and trace communications, carers off due to school closures or caring for relatives, how does the employer ensure fairness for those who have to continue to work?
The government has stated that people who can work effectively from home should continue to do so. However, the lockdown is being progressively lifted between March and June 2021. People who can’t work from home (for instance those working in construction or manufacturing), have been able go to work anyway and those in education, non essential retail and hospitality are progressively returning too unless the restrictions in their area change.
People may wish to continue to avoid public transport if at all possible. It's crucial that employers remember that the physical, emotional and mental well-being of the workforce remains the key principle of managing any return to the workplace. Where the safety of employees cannot be guaranteed, employees should remain at home as much as possible. Employers must continue to communicate openly with employees and workers, to understand their concerns and perspectives. If it is not essential for work to happen in the workplace, then the default until at least June is to continue to work from home. The Government has released guidance for employers on Working Safely during Coronavirus and employers should keep checking the government website for the latest information.
For many businesses if social distancing measures remain in place after June this may mean using skeleton teams or bubbles. To ensure fairness for those who can continue to work, the alternatives to arranging cover for the workload of an absent employee to be covered by the employee's colleagues are fairly limited. Clear and honest communication is key.
The options include:
- In line with the latest Government advice, working from home is the first option to consider until social distancing measures lift. Employees may be able to work at home outside normal working hours (if childcare is needed during working hours).
- Placing some employees on the furlough scheme whilst it continues with others still working more hours, but rotating this arrangement where possible.
- Paying the skeleton team who are still working their normal salary with the reduced working staff receiving pay under the furlough scheme.
Other options include:
- Seeking replacement cover from agencies or from a pool of any casual workers who have been used previously, if available.
- Temporary transfers from one branch of an employer to another may resolve a temporary burden of staff shortages.
- Working with the remaining staff and the absent employees to establish other forms of working that may be suitable.
- Possible later bonuses or time off for those who continue to work although this would need to be handled carefully if some have been furloughed.
- Temporarily reduced hours or adjusted closures of the workplace.
- Possible planned decline in productivity or activity for a limited period.
Employers must work with the remaining employees to establish suitable forms of work pattern. Any form of sick leave can place a significant financial burden on a small business especially in a pandemic situation. Covering absent employee’s work inevitably places an additional burden on remaining employees, and will negatively impact business operation and profit. The government has announced support measures for businesses at this time, including the Coronavirus Job Retention Scheme. Information is available on the Government website.
Q: I’ve heard about short-time working and lay-offs? What are they and should I implement them?
Lay-offs and short-time working are relatively rarely used legal provisions that cover situations where there is not enough work for employees to do.
Employers should also consider the Coronavirus Job Retention Scheme and the option to furlough workers. Information is available above and on the Government website.
- Lay-offs: Employer asks an employee to stay at home and not attend work or be paid for a temporary period.
- Short-time working: The employer requires their employee to work less than their regular contractual hours, for example, a three-day week.
Employers can only implement lay-offs or short-time working if there are express, correctly drafted clauses in their contracts. Employees affected may be able to claim redundancy pay. Employers can also implement lay-offs or short-time working if they get consent to a period of lay-off or short-time working at the relevant time. In a normal situation employees may agree to this if they feel their only alternative is redundancy; but they are unlikely to agree to it during the Coronavirus pandemic if they qualify for a a period of furlough as this comes with at least 80% of pay (subject to the £2,500 cap) and is therefore preferable.
Employees may be laid off after the pandemic and those with at least one month’s service who fall within the criteria will be entitled to a small fixed statutory guarantee payment to partially compensate them for the reduction in salary. Employees who are affected for longer periods may be entitled to redundancy pay. The employees must resign with written notice of their intention to claim this. Employers can avoid redundancies if they guarantee employees 13 consecutive weeks of work within four weeks of receiving the employee’s notice.
In the current situation, if workplaces are forced to close to prevent the spread of the Coronavirus, employers may be able to place employee's on SSP or may have to fully pay or furlough qualifying employees. Lay-offs and short-time working may give employers greater flexibility once the Coronavirus Job Retention Scheme ends at the end of October. These methods may enable employers to achieve savings on salaries during subsequent temporary closures if the required clauses are already in the employees’ contracts or if they consent subsequently. Clauses should reserve the right to reduce pay according to the reduction of work. Obviously, such plans are likely to have a detrimental effect on morale and this impact should be considered alongside other potential options.
Employers should also consider the Coronavirus Job Retention Scheme whilst the option to furlough workers continues. Information is available above and on the Government website.
Q: If we are asked to shut as a business, how can we manage this for our casual staff?
The lockdown is progressively being lifted between March and June 2021 but until further notice government advice remains that people who can work from home should continue to do so. People who can’t work from home (for instance those working in construction or manufacturing), can return to the workplace (as long as that workplace meets COVID-secure guidelines). Other sectors, including education, non-essential retail and hospitality, are progressively returning between March and June 2021.
It's crucial that employers remember that the physical, emotional and mental wellbeing of the workforce remains the key principle. Employers must continue to communicate openly with employees and workers, to understand their concerns and perspectives. If it is not essential for work to happen in the workplace, then the default should be for employees to work from home.
The term 'casual' covers a wide range of legal status; workers labelled as casual could potentially be employees, workers or self-employed. Their status may not have been called into question until considering their rights following the Coronavirus outbreak. The government has introduced a range of support measures for businesses during this time, including the Coronavirus Self-Employment Support Coronavirus Job Retention Schemes. More information can be found in the FAQs on these schemes on the government website.
The precise legal rights of casual workers will depend upon their status which is governed by how the arrangement operates in practice and upon the terms of the contractual documentation. Some staff deemed to be casual may in fact be protected as employees.
Statutory Self-Employment Scheme
If the casual staff are not employees on the PAYE system, then, as self-employed persons, they should be contacted by HMRC under the Coronavirus Scheme for the self-employed. The business that provided them with work will not be involved in the process, and the worker should obtain a payment provided that their average profits in the past three tax years were under £50,000. The individuals must be predominantly self-employed rather than employees i.e. their self-employed profits must be more than half of their average taxable income. See our FAQs on Self-Employed workers for more on this scheme.
Coronavirus Job Retention Scheme
If the casual staff are employees on the PAYE system the employer may be able to include those staff in its claim for an 80% contribution towards their pay under the scheme.
If casual staff have already been assigned to shifts, the legal position will depend upon the contractual arrangement. Some contracts state there is legally binding commitment once a shift is offered. If so then the organisation may be contractually bound to pay the worker. In other cases, previous custom and practice may mean that a worker is paid for a last-minute cancellation of a shift.
Breach of contract claims can arise if an organisation has agreed work and then attempts to renege on this. Ideally the contract will contain a clear policy on cancellation of work. If no shifts have yet been offered or accepted, then there may be no contractual obligation to pay the individual if there is a Coronavirus related business closure or lock down.
As well as basic contractual rights another legal concept that may come into play is that of frustration. Some contracts can be set aside where an unforeseen event makes it impossible for one or both parties to fulfil the contract. The concept doesn’t arise very often in an employment context. Examples where frustration has been successfully argued by the employer include situations where the employee dies, is sent to prison or is excluded from their place of work by a third party, or where the employee is ill. The law takes a pragmatic approach to how long the employer and employee cannot perform for, how long the contract was for, the terms of the contract and whether the events genuinely makes the contract impossible to perform.
In the context of Coronavirus a three-week closure of a workplace would not frustrate a longer-term ongoing contact because the remainder of the contract can still be fulfilled. However, if a casual worker had a specific arrangement of short term work at the employer’s premises, for example for one month, and the workplace was then closed down during that same time period then the contract may be frustrated, absolving the employer from the obligation to pay.
Casual workers who are self-employed should be able to claim 80% of their average income under the self-employed support scheme. If they cannot, for employers who can afford to do so, paying them something for a last-minute cancellation due to coronavirus closures may be a practical and ethical compromise. Some casual workers may have contractual protection and may threaten to make a claim so a goodwill payment of some expenses, an inconvenience payment, or a commitment to future work if a rota or shift is cancelled at short notice may resolve the situation.
(Previous recommendations of the Low Pay Commission in 2019 to compensate casual workers for last-minute cancellations of shifts have not been implemented as yet.)
Q: When I’m recruiting the law requires us to physically see proof of right to work in order to hire. What happens when contact is restricted. Does that mean no-one can hire?
Employers do not always physically need to see paper proof of a right to work in the UK in order to hire. Where contact is restricted employers can still hire.
There are normally two main ways to check right to work documents - online and manually. Now there is a third way - a video call method to enable employers to continue to hire. The Home Office released guidance on 30 March, regarding right to work checks during the pandemic. From this date all right to work checks can be carried out using video calling without the employer seeing an employee's original documents in person. Employers must retrospectively check original documents in the normal way once the special pandemic measures have ended.
Urgent increases of staff are needed especially if they are engaged in a critical sector, for example healthcare or food supply. There are many people whose work has been affected by Coronavirus closures and who are seeking new roles, despite the Coronavirus Job Retention Scheme helping employers retain staff on the payroll.
For more information on how to carry out the three methods of checking right to work documents see the FAQ 'How do employers conduct video call right to work checks during the coronavirus pandemic?' below.
When recruiting, employers will know that citizens of EEA countries and Switzerland could still enter, live and work in the UK (although this will be limited due to the current coronavirus travel restrictions) until 31 December 2020. Such citizens and their family members living in the UK before 31 December 2020 have until 30 June 2021 to apply for settled or pre-settled status. From 1 January 2021, there is a new immigration system for new arrivals for citizens of all nationalities, including EEA and Swiss citizens wanting to enter the UK from that date. There will be no change to the right-to-work check procedure for EEA nationals who start work in the United Kingdom between 1 January 2021 and 30 June 2021 as there is a post-transition grace period. From 1 July 2021 onwards a new policy will be published but this is not yet available. Currently employers can rely on the following documents to prove an EEA national's right to work:
- an EEA passport;
- an EEA biometric ID card;
- a registration certificate;
- a document certifying permanent residence; and
- an online right to work check proving that the individual has status under the EU Settlement Scheme.
An EEA national will not have a right to work if they:
- arrived in the United Kingdom after 31 December 2020 without working rights (eg, as a visitor); or
- failed to apply to the EU Settlement Scheme before the 30 June 2021 deadline.
There will be no need for retrospective checks for employees who start work on or before 30 June 2021 after the grace period has ended. There is also no change to the checks required for family members of EEA nationals.
Q: How do employers conduct video call right to work checks work during the coronavirus pandemic?
Instead of conducting the normal manual document checks in person, employers can temporarily conduct video call checks during the continuation of the coronavirus measures. There is guidance about the adjusted process, including asking for documents digitally, making checks on a video call, and what to do if someone cannot provide any accepted documents on the government website.
In summary, employers should still check normal acceptable documents to evidence right to work, listed in the right to work check guidance - normally passports, biometric residence permits, identity cards or birth and naturalisation certificates following the method below.
The prospective employee emails a scanned copy or a photo of their original right to work documents via email or a mobile app. The employer then:
- Has a video call with the worker who holds up the original documents to the camera.
- Checks the documents being held up against the digital copy of the documents.
- Records the date of the check in the usual way.
- Marks the document copy as an 'adjusted check undertaken on [X date of April or May] due to COVID-19'.
If the worker has a current Biometric Residence Permit or Biometric Residence Card or status under the EU Settlement Scheme the employer can use the digital right to work checking service while doing a video call if the job applicant gives permission
After the coronavirus measures end, employers must carry out retrospective checks within eight weeks of the measures ending. The retrospective checks apply to existing employees who:
- started working during these measures
- required a follow-up right to work check during these measures
The previous two methods of checking, online and manual checking, can also be undertaken, as outlined below.
Digital online checks
The normal digital right to work checking service is still operational and allows employers to check whether staff have the right to work in the UK digitally without taking physical copies of the original documents.
The digital Employer checking service is available on the government website and is a free method for employers to check the following prospective employees:
- Non-EU (or EEA) nationals holding biometric residence permits or cards.
- EU citizens who have been granted settled status, pre-settled status or temporary leave to remain under the EU Settlement Scheme.
The prospective employee must choose to join the online checking service which generates a ‘share code’ which they can then share with the intended employer. The employer still must keep evidence of the right to work check, usually a PDF of the profile page confirming the right to work with the individual’s photograph and the date of the check.
Employers should save the profile page electronically or in hard copy, for the length of the individual’s employment and two years afterwards. Employers then confirm to the employee that they are keeping this data to ensure compliance with data protection provisions.
Other applicants such as EU/EEA nationals who do not have settled status will still have to prove their right to work through documents, such as their passport in the traditional manual check or the video call method.
Manual right to work checks involve obtaining original versions of the identity documents and checking their validity, photographs, dates of birth and expiry dates in the presence of the prospective employee.With social distancing these physical checks are more difficult and the video call check should be undertaken instead in many cases. Some employers may still be attending a workplace as normal, for example, if they are key workers. If the representative of the employer and the prospective employee have no symptoms (and neither have been advised to self-isolate) it may be possible to take a photocopy of documents, provided NHS advice is followed, including washing hands after handling the document.
There are several companies that offer document validation and authentication of documents ranging from mobile-phone software to specialised document scanners which check the authenticity of documents. The government offers guidance on document scanner technology.
Sometimes where an applicant applies from overseas the original right to work documents can be authenticated by a notary and checked before commencing work when the contract is issued.
Employers who either intentionally employ illegal workers or who fail to conduct the correct checks will face penalties if the employees are subsequently discovered to have immigration status which does not permit work in the UK. Conducting any of the above methods of checking provides employers with a statutory excuse that the employer has verified the employee’s right to work in the UK. The defence helps avoid fines if the prescribed checks were carried out in good faith, although fines are rare.
Q: What happens if employees have visas that expire and cannot be renewed during the coronavirus pandemic?
A practical problem during the pandemic is that most visa application centres in and outside the UK have beenclosed and appointments have been cancelled at various points during the pandemic. The UK centres within the UK have mainly stayed open during the January 2021 lockdown so in-country immigration services should be open. Visas and biometric applications and appointments therefore cannot be processed within normal timescales.
Visa extensions: those in the UK
The Home Office guidance says that anyone in the UK who intended to leave the UK but has not been able to leave, with a visa or leave that expires between 1 March 2021 and 31 March 2021 may request additional time to stay, known as ‘exceptional assurance’. Originally people had a grace period to fully extend visas through an online application process, but now the exceptional assurance system is a promise of extra time to stay that falls short of proper leave to remain.
This is only for those who can’t leave the UK before expiry of their visa due to COVID-19 travel restrictions. Those affected can basically contact the Home Office via email to have their UK visa extended as a short-term protection against any adverse action or consequences after the original visa expired.
Non-EEA nationals on a short-term visa can apply to regularise their stay from within the UK, instead of being required to go to their home county to make the application.
Request for an assurance
The request for those asking for additional time involves applying with full name, date of birth, nationality, Home Office reference number, visa details and the reason for request together with evidence showing the reason for difficulty leaving. If, for example, the difficulty is finding a flight then evidence is needed of the confirmed flight ticket.
Exceptional assurance applies in the short-term only to prevent any adverse consequences after leave has expired but it does not grant leave. Those issued with ‘exceptional assurance’ can apply for leave to remain to regularise their stay before the expiry of the exceptional assurance.
If visa conditions allowed for work or study this can continue during exceptional assurance. If people want to switch work or study routes commencing work may be possible whilst the application is pending.
If visas or leave expired between 24 January 2020 and 31 August 2020 there are no future adverse immigration consequences if no application was made to regularise the stay during this time. Those who have not applied to regularise their stay or submitted a request for an exceptional assurance since then must make arrangements to leave the UK.
Visa extensions: those outside the UK
A COVID Visa Concession Scheme applies to those with permission to live in the UK but were unable to come back here due to coronavirus travel restrictions and whose permission expired while they were abroad. Those who are eligible can travel back to the UK for three months to apply properly to extend their stay. This applies to those who left the UK before 17 March 2020.Those who left the UK after that date only qualify for the concession in exceptional circumstances such as the serious illness or death of a close relative overseas or travel for medical treatment.
Indefinite leave to remain
For those accruing continuous residence in the UK for the purposes of indefinite leave to remain absences caused by travel disruption due to the pandemic do not count towards the 180-day maximum.
Those with indefinite leave to remain who have been outside the UK so long that it has lapsed have to apply and pay for a returning residents visa but most of this can be refunded.
A variety of other changes affect other applicants including doctors, nurses or paramedics working for the NHS whose visas are automatically extended by one year if due to expire before 31 March 2021. This scheme covers other frontline workers, including dentists, radiographers, social workers and pharmacists.The full list of eligible professions is on gov.uk.
Under the first phase of the scheme to October 2020 staff did not need to apply as NHS employers will identify staff eligible for automatic extensions. Under the further extension covering visas expiring between 1 October 2020 and 31 March 2021 staff have to apply to have visas extended for free.
Family members with visas due to expire also have their visas extended.Family members of NHS workers and social care who die from COVID-19 are entitled to indefinite leave to remain.
Other changes include some affecting those on Tier 1, 2,4 and 5 visas. Normal requirements have been altered for example to accommodate employees who have been furloughed. There are also relaxations of the current restrictions on the number of hours certain visa holders can work or volunteer for the NHS as a doctor, nurse or paramedic for tier 4 students, tier 2 workers where the NHS job is a second job.
EA citizens changesWhen recruiting, employers will know that citizens of EEA countries and Switzerland could only still enter, live and work in the UK (although this will be limited due to the current coronavirus travel restrictions) until 31 December 2020. Such citizens and their family members living in the UK before 31 December 2020 have until 30 June 2021 to apply for settled or pre-settled status. From 1 January 2021, there is a new immigration system for new arrivals. Citizens of all nationalities, including EEA and Swiss citizens wanting to enter the UK from that date will need to meet the requirements of the new rules at that time.
Q: How do employers conduct disciplinary and grievance processes during the coronavirus restrictions?
Since the government’s advice on the 23 March to stay home, employers have implemented home working wherever possible. A minority of employees may be on suspension pending a disciplinary process, and other disciplinary and grievance processes may be outstanding. Acas has now released guidance on carrying out disciplinary and grievance procedures during the coronavirus pandemic and employers can consider the following points.
The approach employers can take will depend upon the nature of the offence or complaint, whether the workplace is open and on the social distancing measures (you should refer to Government guidance on Working Safely during Coronaviruson this). Some minor offences may be resolved by an informal telephone discussion. More serious matters may need the approaches referred to below if social distancing prevents normal disciplinary processes.
If the workplace is closed and in person hearings are not possible the following main options are available:
Pausing the relevant process
Pausing disciplinary and grievance processes until the crisis has passed has some advantages. Some managers, HR staff and witnesses will be working from home or on furlough and may have difficulty in proceeding with the process. In some cases, the investigation may not be possible remotely and pausing the process may be the obvious solution.
Pausing the process has the disadvantage of increasing stress for the employee. It may also mean there is an unresolved clash between employees which could cause further problems if they are still working together either in the workplace or from home.
If the process is paused, the reason for the pause should be explained to the employee and ideally their consent should be obtained. If the employee prefers to have the disciplinary or grievance paused for a few weeks until an in-person hearing can be arranged this is a safer course of action than insisting on a remote hearing. However, if the matter is very serious the employer may be unable to pause the process.
Continuing with investigations and hearings
Mangers who are working from home can conduct investigations into disciplinary and grievance matters from home and hold hearings remotely. If this process is followed this should be explained to the employee and ideally their consent should be obtained.
The investigating manager can discuss matters with the employee concerned, with witnesses taking careful notes. Interviews can be recorded provided consent is obtained. Other evidence, such as social media posts or emails, can be accessed remotely. The employees, witnesses and companion must all have access to, and the skills to use, any requisite technology.
The investigation must be fair and thorough. At the end of it the employer will have to decide whether to hold the disciplinary or grievance hearing remotely or suspend the process until further investigation is possible. If the employee is accused of gross misconduct and the potential outcome of the disciplinary hearing is dismissal, extra care should be taken to minimise any disadvantages to the employee resulting from the remote hearing process. If the employer concludes that it is possible to hold a remote hearing this smay not make a dismissal unfair, provided that all other steps are fair and thorough including the investigation and the evidence. The employee must be given full details of the allegations, time to consider them and the right to have a companion involved.
An employee may refuse consent and might argue that holding hearings remotely is a breach of the implied term of trust and confidence which would lead to the potential of resignation and constructive unfair dismissal claim.
If any of the parties involved are on furlough, the situation becomes more complicated; see our Furlough FAQs for more information.
DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.
If you have other queries about COVID-19 not covered above, please contact the CIPD member employment law helpline on 03330 431 217 or visit the Community pages
We know that our members and customers are facing challenging times and we are here to help you. Due to a high number of calls we apologise that your wait time may be longer than usual. We appreciate your patience and will connect you to an expert adviser as soon as we can.
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