Q: Are employees entitled to paid time off during the pandemic if their child’s school is closed for any reason?

Following the disruption to schools during the pandemic employees may have concerns about future closures. The position regarding school openings and closures and the rules in place is complex and can change rapidly. Employers should check UK Government advice regularly. Employers and employees should be as flexible as possible, with employers taking account of staff’s childcare responsibilities and individual circumstances. 

UK Government guidance requires schools to have contingency plans in place for remote learning. 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 UK Government outlined potential changes to school attendance as a last resort. If school closures are ordered again, schools are likely to only allow full-time on-site provision to priority groups such as vulnerable children and the children of critical workers. If this happens remote education should be provided to all other pupils. Alternative UK 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. 

Schools are now following new operational guidance on COVID-19, including risk assessment, good hygiene, ventilation, and public health advice on testing, self-isolation and managing confirmed cases of COVID-19. These steps should reduce the risk of virus transmission including protective measures such as increased frequency of cleaning and reduction in use of shared items. 

Options for employers

If schools do close again, 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. Employers 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, including to attend work, 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.

Homeworking 

In the event of schools' closures or self-isolation for classes, 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 homeworking 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 those employees who are unable to work from home have a number of other options, which are described below.

Flexible working

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 Test and Trace system, then the employees may be able to claim statutory sick pay.

Annual leave

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 UK Government website.


Q: Once the digital COVID-19 measures end, is there a digital method for employers to check right-to-work documents?

Digital right-to-work checks were implemented during the pandemic and from 6 April 2022 there is a permanent change enabling digital checks of right-to-work documents.

Employers will be able to facilitate remote document checks without physically needing to handle paper documents proving a right-to-work in the UK.

The new legislation is effective from 6 April 2022, but there has been some speculation about when the new system (known as IDVT) will be ready. If the system is delayed, then the adjusted COVID-19 system checks may be extended.

However, in the meantime, employers should:

  • Review onboarding processes and any staff training.
  • Put policies and procedures in place to manage new checking processes
  • Budget for the additional costs employers will have to when using certified identity service providers.
Employers should also note that UK and Irish nationals did not previously fall within the scope of the digital system but the new one applies to them going forwards.
 
For more information see the UK government website.

Information on checking right-to-work documents of overseas nationals is outlined below.


Q: Can employers still conduct video call right-to-work checks for overseas recruits?

During most of the pandemic, instead of conducting the normal manual document checks in person, employers could temporarily conduct video call checks. There was guidance about the temporary adjusted process, including asking for documents digitally and making checks on a video call. This guidance applies until 5 April 2022. This method will no longer be permissible from 6 April.

From 6 April 2022 manual checks will no longer be acceptable for holders of biometric residence permits, biometric residence cards and frontier worker permits. These must now be checked exclusively online using the Home Office’s online right to work check systems.

Employers should ensure that managers have appropriate guidance on right to work checks as the biometric documents (referred to above) will be removed from the list of acceptable documents for conducting manual checks. People with digital status, including those with eVisas and people under the EU settlement scheme already use an online service. 

Employers should note that the IDVT system for British and Irish nationals which carries a fee is different from the free Home office right to work check online systems. 

Retrospective verification It now appears that retrospective right to work checks on those who previously used biometric documents to prove their right to work during a manual right to work check, will not be needed. The guidance also suggests that employers will not need to carry out retrospective checks on anyone who had a special pandemic measures check between 30 March 2020 and 5 April 2022. The critical aspect is that these documents were permissible under the relevant guidance at the time the original check was taken.

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.

Full guidance on how to conduct right-to-work checks are available on the UK Government website.


Q: Are self-employed people, eligible for other help or loans now the Self-employed Income Support Scheme (SEISS) has ended?

Now that the Self-employed Income Support Scheme (SEISS) has ended self-employed people have limited remaining help available. Even if they have to self-isolate or stop work, limited sick pay protections are available as they are not eligible for statutory sick pay. However, other benefits may be available including employment support allowance and Universal Credit.

Recovery loan scheme

A new recovery loan scheme was introduced from 6 April 2021 and will run until the end of 2021. It replaces Bounce Back Loans, the Coronavirus Business Interruption Loans Scheme, and the Coronavirus Large Business Interruption Loans Scheme. UK-based businesses that had support under the previous COVID-19 guaranteed loan schemes are eligible to access finance under the new scheme provided all other eligibility criteria are met.

Recovery loans are therefore the main remaining scheme for businesses of any size and enable loans from £25,000 to £10million until the end of 2021. Companies need to show that their business has been impacted by the pandemic and is viable or would be viable were it not for the pandemic. The UK Government will provide a guarantee to lenders of 80% of the finance supplied. 

The main types of finance available are:

  • Overdrafts of between £25,001 and £10 million per business are available for up to 3 years
  • Term loans of between £25,001 and £10 million per business are available for up to 6 years
  • Invoice finance of between £1,000 and £10 million per business is available for up to 3 years
  • Asset finance of between £1,000 and £10 million per business is available for up to 6 years

Businesses in collective insolvency proceedings are not eligible. Personal guarantees will be taken on facilities over £250,000, but should not be taken on facilities up to that amount. A borrower’s principal private residence cannot be taken as security.

Other rights 

As well as eligibility for loans self-employed workers may have legal rights regarding businesses they work with, depending upon the terms of the agreement with the client and how the arrangements operate in practice. Some workers who are deemed to be self-employed may in fact be protected as employees. 

Kickstart Scheme

The Kickstart Scheme funds new six month paid job placements to create jobs for 16 to 24-year-olds on Universal Credit who would otherwise be at risk of long-term unemployment. Employers can currently start job placements up until the end of December 2021, and funding is available until 30 June 2022 with the possibility of an extension.

The scheme covers England, Scotland, and Wales (with funding for a similar scheme in Northern Ireland). The scheme applies to businesses of all sizes and across all sectors but must not replace existing or planned vacancies or cause existing employees or contractors to lose or reduce their employment.

The UK Government covers the cost of 25 hours work a week at the relevant National Minimum or Living Wage in addition to pension and NI contributions. Employers also get £1,500 per placement for wraparound support.

The job placements must:

  • last six months
  • cover at least 25 hours per week (employers can top-up wages if the role is over this)
  • include support for young people to get work after they finish the scheme if they are not taken on longer term.

There is no obligation to provide a full-time role for the young person once the placement has ended.

Other measures

  • SMEs who employed less than 250 people as of 28 February 2020 could reclaim Statutory Sick Pay (SSP) paid for sickness absence due to coronavirus. The refund covered up to two weeks’ SSP per employee who was off work because of coronavirus. This applied from the first day their employee is off work rather than day three. This ability to recoup statutory sick pay costs finished at the end of September 2021 and any outstanding claims must be made by 31 December 2021. The full cost of SSP returns to being met by the employer. It appears that employers must continue to pay SSP from the first day an employee is unable to work rather than on day three as before the pandemic, making SSP more expensive than before.
  • Temporary rates of 5% VAT in hospitality and tourism businesses finished on 30 September 2021. This was followed by a 12.5% rate of VAT until 31 March 2022. 
  • The self-employed and other taxpayers with income tax liabilities of up to £30,000 can use a "time to pay" facility to spread taxes due in January 2021 over an additional 12 months. 
  • The UK Government announced in the March 2020 budget that the self-employed will be able to claim employment support allowance from the first day of their self-isolation or illness rather than day eight. For those affected by coronavirus the allowance is payable from day one rather than waiting, this applies until 12 November 2021. However, it is only paid to those who are too sick to work and who meet certain conditions and those who are likely to benefit are fairly limited.
  • The UK Government also temporarily changed Universal Credit so that the minimum income ‘floor’ of how much the self-employed person would normally expect to earn in a month, is ignored when calculating entitlement. This means some individuals will be able to claim over the telephone or online for time they spend off work due to sickness. In effect, instead of sick pay the self-employed could obtain support through the benefits system by raising Universal Credit so that the self-employed receive a similar amount to statutory sick pay. This suspension of the minimum floor applied until the end of July 2021 but since August 2021 it is gradually being phased back in, leaving jobcentre work coaches discretion not to apply it if the claimant’s earnings are affected by coronavirus.

Local authorities

The UK Government established a £500m fund to support economically vulnerable people to be allocated by local authorities. The coronavirus grant schemes managed by local authorities have been closing but some help remains. More information can be found on the UK Government website where there is a Business Support Finder to check eligibility.

Wales, Scotland and Northern Ireland

The separate nations have power to decide any extra support for businesses in their areas. Although most schemes are now ending some remain, as outlined below.

Scotland

Extensive support has been made available in Scotland with many sector-specific provisions. The remaining support includes one-off restart grants for business in the retail, hospitality and leisure sector to support the costs associated with the expense of reopening. Other measures include extending rates relief for retail, hospitality, leisure and aviation businesses for the whole of 2021/22. A complete list of remaining support is available on the Scottish government website.

Wales

The Welsh Government has a package of support, including 100% business rate relief for retail, leisure and hospitality businesses with rateable values up to £500,000 applicable for the whole of 2021-22. Commercial tenants who cannot pay their rent are protected from eviction until 25 March 2022. Entrepreneurship grants and loans support are available for new businesses and micro-businesses who have been trading for less than two years to help start and grow a business.

Northern Ireland

For businesses in Northern Ireland, the business support still available includes apprenticeship incentive schemes and payments to support the retention and recruitment of apprentices. A 12-month holiday from business rates applies for the full 2021-22 financial year for specific sectors approved by the NI Executive. Other support includes a creative individuals’ recovery programme.


Q: What happens if employees have visas that expire and cannot be renewed during the coronavirus pandemic?

A practical problem during the pandemic was that most visa application centres in and outside the UK were closed and appointments have been cancelled at various points during the pandemic. Whilst in-country immigration services should now be open, application processing may still take longer than usual.

During the early stages of the pandemic people who could not leave the UK before expiry of their visa due to travel restrictions were entitled to various concessions and visa extensions to protect them against any adverse action or consequences after the original visa expired. Most of those concessions ended from 19 July 2021.

The position is now that employees with visas that are about to expire or have expired must take all reasonable steps to leave the UK where it is possible, or should apply to regularise their stay in the UK.

Exceptional assurance
Originally people had a grace period to fully extend visas through an online application process, but 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 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. 

There may be exceptional cases where people are unable to return to a country or territory listed as non-red if that nation has closed their borders or where quarantine facilities are temporarily over-subscribed – in these cases exceptional assurance can be requested as well.

Request for an assurance
People can submit requests for exceptional assurance by emailing the home office to ask for additional time  with their 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. 

During the time in which the request for ‘exceptional assurance’ is pending the person will continue on the conditions as per their current or most recently expired visa.

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. 

The system is a means to protect those who cannot leave the UK due to COVID-19 restrictions it is not to facilitate travel, other than to return home.

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. If people have already been given assurance but are unable to leave the UK by the assurance date they must reapply stating it is a subsequent application with new supporting evidence.

Other changes

A variety of other changes affect other applicants including doctors, nurses or paramedics working for the NHS whose visas expired between 1 April 2021 and 30 September 2021 as they may be eligible for a free extension to their visa. This scheme covers other frontline workers, including dentists, radiographers, social workers and pharmacists. The full list of eligible professions is on the UK Government website.

Family members with visas due to expire can also their visas extended or a year. Family members of NHS workers and social care who die from COVID-19 are entitled to indefinite leave to remain.


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.


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