Our series of top tips will help you and your team get the most out of homeworking
Q: What do employers need to know about the Kickstart scheme, traineeships, apprenticeships, and flexible apprenticeships?
There are several government schemes offering some partial funding to employers who employ young people following the impact of the COVID-19 restrictions and Brexit.
The main schemes are Kickstart Scheme and apprenticeship and trainee incentive payments. Kickstart is focussed on short-term work and employment training, whilst an apprenticeship is often long-term and centred around specific skill development. The key points are as follows:
This was launched in September 2020 and payments have been extended until March 2022. Applications from employers and providers will continue to be accepted until 17 December 2021. The scheme offers subsidised paid work placements for young people between 16 and 24 years old. It applies to those claiming Universal Credit and are deemed to be at risk of long-term unemployment. The funding covers 100% of the national minimum wage for 25 hours per week for six-months, plus employer’s NI contributions and minimum automatic enrolment pension contributions.
At the start of the scheme small employers with less than 30 vacancies had to use gateway providers, which included private companies, to sign up to the scheme. However, the mandatory requirement for small employers to use gateway providers was removed in February 2021.
More information is available on the UK Government website.
This skills development programme is for young people aged 16 to 24 (or 25 with an education, health and care plan) to provide work experience placements. Employers who offer new work placement opportunities available may be eligible for an incentive payment of £1,000 per trainee. They can claim this incentive for up to 10 trainees per region. Traineeships can last from six weeks up to one year, but most last less than six months There must be at least 70 hours of work experience made available. Employers work with a training provider to design the programme setting out the length of the work experience placement, days worked and how the programme will be delivered. Employers must offer the trainee an interview at the end of the placement if jobs are available in their business and provide an exit interview with meaningful written feedback and advice if no role is available.
More information is available on the UK Government website.
Government apprenticeship incentive
This was first introduced in August 2020 and entails a £3,000 cash incentive for each apprentice hired. Apprenticeship grants and employer incentives were expanded in 2021 with grants extended until January 2022. The closing date for applications is 30 November 2021. For information on types of apprenticeships see below.
Types of apprenticeship
Employers must put the correct contractual arrangements in place when recruiting apprentices so that they can access funding. Apprenticeships may be:
Common law apprenticeships: These do not fall within the special statutory regime and so are common law apprenticeship. All apprenticeships in Scotland are common law apprenticeships. These apprentices may have enhanced protection against dismissal.
Statutory apprenticeship agreements: Statutory apprenticeship agreements apply in England and Wales and must be in a set form. These apprenticeship agreements are usually for a fixed term and in a particular trade or occupation. From 1 August 2020, all apprenticeships in England must follow a Standard. Other forms of Apprenticeship Agreements continue to be used in Wales.
Flexible apprenticeships: A flexible apprenticeship scheme is starting in 2021, which allows apprenticeship agencies to supply apprentices to work with multiple employers for short periods of time. This flexi scheme formed part of the Government’s ‘Build Back Better’ plan and is aimed at sectors that have more short-term and project-based work and may not be able to offer the normal 12 month apprenticeship.
Apprenticeship Training Agencies (ATA) approved by the UK Government will employ and pay apprentices and providing them to employers in exchange for a fee. Different employers can share the fee and responsibility for training. From July 2021 businesses can bid for money to create new agencies ready for the first flexi-job apprenticeships from January 2022 onwards.
The agency must comply with the employment agencies and business legislation and supply information about key terms and conditions, including salary and holiday entitlement; confirmation that the individual has the necessary ability for the role and not charging the individual for their placement. Under the legislation people will become entitled to the same rights after 12 weeks of a placement as a comparable directly hired employee of the end user. Flexi-job apprenticeships may be cheaper for employers.
Apprentices under the statutory apprenticeship schemes have employee status and have employment rights like other employees. They do not have enhanced dismissal protections like common law apprentices.
Advice for organisations seeking to help young people access employment and training opportunities is available in the Employers’ guide to youth employment and UK training programmes
Q: What does the autumn and winter 2021 plan mean for employers?
The UK Government has published its COVID-19 autumn and winter plan for England which summarises the rules that are being removed and the provisions that will be retained. There is a plan A and a plan B to be used if the COVID situation deteriorates. These plans apply in England. Scotland, Wales and NI will make their own rules.
Whether there is a switch from plan A to plan B depends on several variables including: levels of vaccination; waning of immunity; levels of social contact as schools return and offices reopen; and whether a new variant emerges. Hospital and intensive care unit capacity and admissions for both COVID-19 and non-COVID-19 patients are continuously monitored.
The aspects of plan A and B that affect employers are summarised below.
Plan A will be operative until further notice. The five key pillars of Plan A entail:
- Building defences through pharmaceutical interventions including vaccines and antivirals.
- Identifying and isolating positive cases to limit transmission: Test, Trace and Isolate.
- Supporting the NHS and social care.
- Advising people on how to protect themselves and others with guidance.
- Pursuing an international approach to help to vaccinate the world and manage risks at the border.
For employers the Government will update the existing Working Safely guidance to reduce workplace risks. As workers return to the workplace, employers should follow the government guidance in preparing health and safety risk assessments and should establish suitable mitigations.
- Employees must not be allowed to come to work if they are required to self-isolate.
- Employees should stay at home if they are feeling unwell.
- Hand sanitiser should be provided to enable staff and customers to clean their hands more frequently, and employers should clean surfaces which people touch regularly.
- Employers should display an NHS QR code poster for customers to check in using the NHS COVID-19 app and should consider using the NHS COVID pass.
Employers should also ensure there is adequate ventilation and fresh air for indoor spaces and identify any poorly ventilated spaces, for example by using a CO2 monitor, and take steps to improve fresh air flow in these areas. The Government continues to place high emphasis on this, promising further guidance on the practical steps everyone can take to maximise fresh air to reduce the risk of airborne transmission. The Government will support improved ventilation by providing further advice and support to businesses to help them check their ventilation levels and introduce CO2 monitoring where appropriate. For example, there will be a trial of upgraded air filtration devices on passenger trains.
Under Plan A there is no legal requirement to wear face coverings in crowded and enclosed spaces but the Government continues to recommend this where people come into contact with others that they normally do not meet, for example in crowded places and on public transport.
Test and trace and NHS COVID Pass
Contact tracing through test and trace, regular asymptomatic testing and free testing will continue. School pupils will be expected to test until at least Christmas. Some financial support for those self-isolating will continue until the end of March 2022.
Free lateral flow tests will remain available at least throughout autumn and winter. The Government has warned that universal free provision of tests will end at some stage in 2022 and employers and individuals using the tests will have to pay for them after that time.
NHS Test and Trace will continue to identify contacts of positive cases and ask all contacts to take a PCR test as soon as possible. This contact tracing will continue at least during the autumn and winter. Since 16 August 2021, in England, under-18s and those who are fully vaccinated no longer need to self-isolate if they are identified as a contact, instead they must take a PCR test and only self-isolate if positive. Contacts who are over-18 and not fully vaccinated remain legally required to self-isolate.
Certification and use of the NHS COVID Pass remains encouraged on a voluntary basis. Organisations who use voluntary certification can ask individuals, including those 11 and over, to demonstrate their testing status. Since 16 August 2021, the App tells potential contacts who are vaccinated to take a PCR test rather than isolate.
Organisations can check NHS COVID passes using the NHS Verifier App and there is guidance on using the pass. The pass certifies individuals based on vaccination, testing or natural immunity status. If Plan B (see below) becomes necessary, the pass will change to display full vaccination only. Exemptions continue to apply for those who cannot be vaccinated for medical reasons, for those on COVID vaccine clinical trials, and for under-18s.
The UK Government will monitor the data and have outlined a Plan B for England which will be used if necessary to prevent the NHS from being overwhelmed. However, the Government said the UK should be able to handle another wave of COVID without further lockdowns. The Government have promised that prior notice would be given ahead of a switch to Plan B, although if mandatory vaccine certification comes into force in England the Government would give at least one week’s notice.
The potential Plan B entails:
- Working from home again where possible.
- Legally requiring face masks in certain settings (the precise settings will be decided at the time).
- Asking the public to be more cautious concerning COVID.
- Mandatory vaccine passports in nightclubs and indoor settings with 500+ people, festivals, outdoor settings with over 4,000 people, and any setting with more than 10,000 people. This will not apply to weddings, places of worship, funerals and protests.
In line with UK Government guidance some workers have gradually returned, or are preparing to return, to offices and workplaces. For employers still following working from home or hybrid working they will need to decide what to do going forwards, given there is at least a risk of a switch to plan B. The SAGE committee has advised that working from home is one of the most effective measures for reducing transmission of the virus. Data on risk by occupation consistently show a lower risk for those occupations with higher levels of working from home.
This needs to be balanced against the risks of commuting for many workers and conditions at home, particularly for those living alone or with weaker mental health. The Government state that some businesses have reported that productivity has remained the same or increased. However, other businesses report that working from home guidance poses challenges, such as hampering the exchange of ideas, stifling creativity, and hindering collaboration.
Given that working from home may be advised again before the end of the year employers should remain prepared to respond to Government advice at short notice. Where home or hybrid working is effective employers may wish to continue this in the short term, deferring any longer term decisions until 2022.
Q: Can employers reduce employees’ pay because they are working from home on a full time or hybrid basis?
As the pandemic restrictions are lifted many employers have staff working from home on a full time or hybrid basis. Staff may work from home some distance from their former office location. For example, staff may live and work outside London, whereas previously they worked in London and received a London weighting or increment. Employers may wish to remove increments or reduce an employee’s pay because of the increased home working.
The legal starting point is always that changes to an employment contract require employees’ consent. If employers make pay reductions (or any other contractual changes) unilaterally, then this will be a breach of contract. Those who refuse to agree changes with at least two years’ service may have constructive unfair dismissal claims. There may also be wrongful dismissal claims which do not require a qualifying period.
Consent and risk
If employees do not consent to a pay reduction, the usual strategies for employers regarding changes to contractual terms apply. These include imposing the pay cut anyway, attempting to rely on a contractual flexibility clause, or dismissal and reengagement. These options all entail risk. In addition to the claims referred to above, there may be claims for failure to consult, because dismissal and re-engagement of 20 or more employees requires collective consultation with elected employee representatives. In all cases absence of a fair process and consultation will increase the risk of claims.
If employers want to revise pay, the lowest risk option is to commence a process of seeking agreement to the new terms and conditions. Alternatives include for example, imposing a new pay structure for new starters perhaps phasing out things such as a London weighting.
Some employees will have childcare reasons for being more home based. Pay reductions may then lead to potential discrimination or equal pay claims. Pay reductions for home workers could have the effect of widening the gender pay gap. There could be other discrimination issues too, if one group such as white people, or non-disabled or younger people continue to receive a weighted location allowance, but others do not.
Many employers have yet to come to a permanent decision about hybrid or remote working and how any employee relocations, will affect pay structures. Some employers have shifted to permanent remote working, but many seem to be trialling workplace attendance for two to three days per week. If roles evolve into long term flexible location, then regional pay differentials may reduce in the longer term. On the other hand, if staff are asked to attend the office regularly, their costs are unlikely to be significantly lower than they were before the pandemic.
Employers need to consider future pay policy as part of their consideration of working practices. The effect of increased remote working on pay structures nationally is unknown.
Employees will resist reductions in their pay if they are continuing to do the same work. Changes to pay based on hybrid or home working will also damage talent retention and morale, especially if some workplace-based colleagues continue to be remunerated in the same way.
Employers should consider all factors. Reduced transport and ancillary costs of attending the workplace, such as clothing, coffees and lunches may improve employees’ financial position. On the other hand, utility bills will increase when working from home, and staff may feel that their pay should reflect this.
For further details see our Q: Should employers alter employees’ pay to take into account reduced commuting costs or increased electricity and heating bills? For consideration of the approaches to varying contractual terms see the Terms and conditions Q: Is it legally possible to vary employees' contractual terms?
Q: Should employers alter employees’ pay to take into account reduced commuting costs or increased electricity and heating bills?
Many employers have staff working from home on a full time basis in the medium or long term because of the pandemic. Employees may be in a better financial position with reduced transport and ancillary costs of attending the workplace, such as coffees and lunches. At the same time though, employees may find that their utility bills increase as a result of working from home. Employers may wish to change an employee’s pay because of these changes and the legal starting point is always that changes to an employment contract cannot be made unilaterally. Most alterations of terms and conditions require employees’ consent and altering pay without this will be a breach of contract leading to claims including unfair dismissal.
A beneficial change such as a pay increase to cover increased utility bills, or more likely allowing specific expenses claims, is a change most employees will agree to (and by accepting and taking the payment the contractual change is deemed accepted by the employee’s conduct, so the change becomes incorporated into the ongoing agreement without the need for express agreement). Deciding to reimburse staff for utility expenses is entirely at the employer’s discretion. Due to the economic pressures on many employers they can decline any requests to reimburse employees for these home expenses. If employers do reimburse heating and lighting etc for staff working regularly from home, then they can pay a tax-free set sum to help with these expenses (see below).
By contrast, a pay cut due to reduced transport costs is a significant negative change to an employee’s terms and employees may refuse consent. In the current situation employees may feel that they have little alternative but to agree as it may be difficult for them to find employment elsewhere. Express written agreement to changes is always the safest option. There will need to be consultation with employees, explaining the rationale behind the reduction.
Absence of consent
If employees don’t consent to a pay cut, the usual options regarding unilateral changes apply to contractual terms:
- Reliance on a contractual flexibility clause: some contracts have flexibility clauses purporting to give the employer the right to vary terms unilaterally. These clauses are often seen as being invalid and are unlikely to cover a pay cut.
- Imposing the pay cut anyway: Employers can make the change unilaterally, informing employees of the reduction and wait to see what happens. If employees continue to work without objecting, the employer can argue that the pay reduction has been impliedly accepted. This approach is high risk as employees can bring claims for breach of contract saying they did not accept the change despite continuing to work. Alternatively, there may be constructive unfair dismissal claims.
- Dismissal and re-engagement: The most extreme option is to terminate employees’ contracts (with proper notice, to avoid wrongful dismissal claims) and then re-engage them on the reduced terms. This is a risky approach and may lead to unfair dismissal claims. The employees can choose to accept or reject employment on the reduced pay. Those who refuse and have at least two years’ service may have unfair dismissal claims. If the employer is proposing to dismiss and re-engage 20 or more employees there needs to be collective consultation with elected employee representatives, and in all cases a fair process and consultation.
If an employer requires employees to work from home tax relief can be given for the additional cost of working from home. This does not apply if the employee is working from home through choice. The rules mean that effectively a tax-free payment equivalent to approximately £300 per year can be made to cover increased costs for working from home. HMRC guidelines allow employers to offer tax-free payments to workers who regularly work from home and this applies to those working from home during the pandemic.
The rules cover:
- additional gas and electricity used while the room is being used for work
- metered costs of water used (a few cups of coffee is unlikely to be substantial)
- cost of work-related telephone calls.
The extra costs listed above must solely be used for work purposes. Items such as rent or internet costs cannot be claimed as they are for both private and business use. Because establishing these expenses is difficult, HMRC accepts a flat rate allowance of £6 per week or £26 per month without evidence to support the actual real costs. Employees with provable higher costs can claim more if they have evidence of the actual costs incurred.
This means that:
- basic rate taxpayer claiming an expenses allowance will pay about £1.20 per week less tax.
- higher rate tax payers claiming an expenses allowance will pay about £2.40 per week less tax.
The expenses must be wholly, exclusively, and necessarily in the performance of the duties of the employment to be deducted from their employment income. Employees can notify HMRC of the utility-related expenses they will be claiming before the end of the tax year and their tax coding notice can then be amended to reduce the PAYE deducted from their salary, thereby increasing their take-home pay.
Although employers decide whether or not they wish to make the payment workers can bypass the employer and claim the tax relief directly from HMRC for the additional household costs incurred. Employees must be prepared to show evidence of their claim by keeping records of their costs. There is a a P87 form available online or self-assessment can be used.
By contrast, the self-employed can claim more than employees including a proportion of lighting, heating, cleaning, insurance, mortgage interest, council tax, water rates and general maintenance costs. These expenses arising from working from home are deducted, reducing the final bill. Expenses are worked out by assessing the amount of time at home for work, and how much of the home is being used. There is also an HMRC’s simplified expenses system.
Q: How do I plan for my staff to continue to work from home?
In England, from 19 July 2021, the legal obligation for home working ended, with the government leaving COVID security to individual discretion. Employees in Scotland, Northern Ireland and Wales are being advised to continue to work from home.
The government’s advice clearly envisages hybrid forms of working. For staff who have worked predominantly from home for nearly 18 months a hybrid pattern or phased return gives workers time to adjust.
In areas where the case rates are high employers should be considering continued home working and be ready to roll back any loosening of restrictions at short notice.
For further details of the legal position regarding home working see the Q: What is the position regarding working from home in England from 19 July onwards?
Employers’ plans should take into account the following:
Employers should revisit their risk assessments and review their return to office and working from home arrangements. Employers need to revisit risk assessments given the new government advice, developments in vaccination and testing and increased virus transmissibility rates. For example, different regions and different employees may have varying risk factors. Employers should usually conduct risk assessments of all the work activities carried out by employees, including those working from home. Undertaking physical risk assessments of each employee’s home is preferable but there is a COVID risk with physical attendance so this may or may not have been feasible. Some home working risk assessments may be conducted using electronic risk assessment questions and providing employees with guidance to follow at home. For employers adopting hybrid working on a short or longer-term basis risk assessments need to be revisited to address all aspects of the working arrangements.
Remote working and workplace risk assessments obviously have some similarities and some differences. For workplace risk assessments see our Q: From a health, safety and wellbeing perspective, what are the employer's obligationsabout managing a return to the workplace?
The government advice issued from July 2021 onwards emphasises consultation with staff on health and safety measures to reduce the risk of COVID-19 spreading. In addition, employers should discuss longer term plans concerning any return or hybrid working and the timing of any phased return.
Employers will have collective discussions with staff perhaps using online town halls. Discussions should take place with any employee representatives as well. Employers must also consult with employees individually taking account of any risk factors and concerns they raise.
In some cases both parties will agree to a full or partial return to the workplace. However, some employees may want to continue working fully from home. If the employee can carry out their normal duties effectively from home, then the employer should at least consider this. At all stages, employers must encourage compliance with the government guidance. Conversely, if home working is to become permanent, some employees may be reluctant for a number of reasons such as domestic violence, lack of heating or distractions of young children or perceived isolation.
For staff remaining in or returning to the workplace, employers will have to follow the new working safely guidance. Overall, this guidance emphasises employers’ high degree of responsibility to care for employees and customers. The government guidance suggests that many of the previous precautions should continue, including social distancing, screens and other measures.
Extra consideration should always be given to those people at higher risk. Although many will be vaccinated this should not automatically be assumed to be the case.
Employers should consult with employees on an individual basis, taking account of any risk factors and concerns they raise.
For further detail on this guidance see our Q: From a health, safety and wellbeing perspective, what are the employer's obligationsabout managing a return to the workplace?
Home working policy
Many employers have planned long term flexible working systems now COVID-19 restrictions have been eased. For example hybrid arrangements with staff working three days per week from home and two in the office. There are many practical and legal matters to address for any period of homeworking including:
- Selection of staff
- Monitoring of performance and output
- Guidance for line managers
- Video conferencing software
- Motivation techniques
- Working time
- Health and safety
- Salary and expenses
- Data protection
- Employees who work from other homes or overseas.
For further information on all of these aspects see our series on getting the most from remote working.
Disciplinary proceedingsEmployers with confidence in their COVID-risk management measures who consider that staff can’t work effectively from home on a long-term basis, may insist on a full time return to the workplace. Theoretically employers can move towards disciplinary action if employees refuse to do so.
There is a risk that disciplinary action could result in constructive unfair dismissal claims while cases remain high and some workers are not yet fully vaccinated (especially, as the government’s advice suggested that a gradual shift away from home working). The safest course of action remains to consider requests for homeworking on an individual basis following the procedure for normal flexible working requests.
The risk of a claim is higher for employees who are able to continue working from home, and employers should have solid reasons as to a full workplace return is needed now.
Alternatives for those who cannot work from home include putting them onto unpaid leave.
Clinically extremely vulnerable employees
The government’s advice on shielding has ended in England. However, employers should still discuss with CEV employees how they are feeling about a potential return to the workplace. The latest guidance on CEV people advises that employers should give extra consideration to people at higher risk and to workers facing mental or physical health difficulties. The advice suggests employers should:
- Take account of employers’ legal health and safety responsibilities and the need to explain the workplace measures adopted especially to CEV people.
- Continue to support CEV workers by discussing with their individual needs and taking any additional precautions advised by their doctors.
- Remember to discuss with disabled workers any possible reasonable adjustments to the workplace or working arrangements.
- Remain responsive to CEV workers’ needs by support them in consideration of the risks of close contact with others. Although part of the CEV advice relates to social contact the precautions are useful in the workplace too. CEV people are reminded to take account of other people’s vaccination status, particularly when not every adult will have been offered two vaccine doses. Other recommended precautions include ventilation.
Q: What should an employer consider if an employee is reluctant to return now restrictions have eased?
Current government advice is that people no longer must work from home if they can. The government has said it would expect and recommend a gradual return over the summer, this applies to those employers that choose to pursue a return to the workplace. For further information on easing see Q: What is the position regarding working from home in England from 19 July onwards? above.
Some employers have already reduced the size of commercial premises and implemented a permanently more flexible system of home and workplace attendance which will continue even when restrictions ease. Others are planning a full return to the workplace.
Employers should consult and explain their plans for when restrictions are eased and their reasons. There are likely to be varying views and some employees will be more motivated to attend the workplace again than others. Employers should bear the following in mind:
- Generally work location is set out in the original contract. Enforced change from office to home or vice versa is technically a fundamental change to employees’ contractual terms. However, when the government imposed home working, both employers and employees had to comply. Mutual agreement is preferable and in some cases trade union involvement may arise.
- The pandemic is exceptional and many employees have already been working from home and have expressly or impliedly agreed to this change.
- Employment contracts usually include mobility clauses which allow employers to make changes to staff work location, usually after consulting employees. These clauses may give employers the ability to change locations as agreement was given at the outset.
- Employers should check original terms and any variations carefully, including mobility clauses to verify what the employee has already agreed to.
- Employers should still act reasonably and consult. Employers could breach the fundamental implied duty of mutual trust and confidence which applies to every employment contract if they behave unreasonably.
- If employers have tactically decided to reduce office space to save costs then it is reasonable to seek consent to continued home working.
Employers in certain sectors who are retaining workplace premises can allow employees to return once COVID-19 risk management measures can be put in place. Property and business insurance may require checking.
The situation becomes more complex if some employees are asked to return and other can work from home. If employers are implementing changes to work location for some staff, they must select fairly without discrimination against women or those of a certain age or disability. They must also make reasonable adjustments for disabled staff who may be mentally or physically adversely affected by a return to the workplace or even by an extended homeworking arrangement.
If employees refuse to return to the workplace employers must proceed cautiously, especially whilst the government advice emphasises a gradual return. The approach for employers who want to secure a full workplace return depends upon the employee’s reasons for refusal. The first stage is always to listen to the employee’s concerns, especially if they are vulnerable or have a disability. Employers should consider employee’s proposals and accommodate them as far as practicable. Every employee should have the opportunity to discuss any concerns well in advance of the day that individual is expected to return and keep a record of any decision-making process. Points to bear in mind include the following.
Comply with all health and safety guidance
Employees have a special legal right if there is any detrimental treatment or dismissal because they refuse to come into work because of a reasonable belief that they or others are in serious and imminent danger. This protection was not designed in relation to COVID but employers must comply with the updated government guidance to reduce risk or employees may be able show a health and safety lapse. If an employee is dismissed for their failure to attend work following their belief of serious and imminent danger then any dismissal could be automatically unfair, and the employee will not need a minimum of two years’ service to bring a claim.
Treat vulnerable employees with special caution
Vulnerable employees may have claims for disability discrimination, negligence, personal injury or a breach of the implied duty of trust and confidence if employers do not handle any return to work properly. The best process will involve an individual risk assessment and discussing concerns about their return to work potentially with occupational health involvement. Discussions about how to facilitate the return can include adjustments to the role, continued home working, the safest available on-site roles, ventilation, continued distancing.
For employees who are disabled under the Equality Act 2010 employers must make reasonable adjustments, which could include allowing the employee to work from home. Severe anxiety could amount to a disability under the Equality Act 2010.
If specific safety concerns have been raised, employers should consider the risks of a whistleblowing claim. Employers must be certain they have taken all reasonably practicable steps to control risk.
If the employee can work from home, this may well resolve the issue. Otherwise, employers must follow current government advice, the factors above including the employee reasons for not attending work and potential discrimination and other rights.
Employees’ views, physical and mental health requirements, vulnerable workers and those with caring responsibilities must be taken into account. Employers making such decisions may be protected by directors' and officers' insurance.
Only after attempting to understand and remedy all concerns may a potential disciplinary process for a refusal to return to the workplace be an option. Employers should only consider this if they are either prepared to pay compensation to settle a claim or if they are confident that all reasonably practicable steps to control COVID risks have been taken.
Employers would need both a fair reason to dismiss and to follow a fair procedure prior to any dismissal for unauthorised absence. The risk of claims is higher for employees who can continue working from home, especially while the government is only recommending a gradual return to the workplace. The employer will need to show why it is now necessary for them to be in the workplace.
If returning to the workplace is the only option and employees cannot agree to this, options include flexible working, or paid or unpaid leave whilst the matter is addressed, taking care to support employee’s mental health and wellbeing.
The situation may ultimately create either a redundancy situation, or a justified some other substantial reason (SOSR) for dismissal for those unable to return. They could be offered a redundancy payment if the employee has sufficient length of service and appropriate procedures are followed. It is worth noting that clinically vulnerable employees are not entitled to receive SSP.
Q: What steps should employers take regarding insurance for employees working from home?
As employers and employees continue to adapt to their new normal, some matters which may have been overlooked previously need to be addressed. This includes remote working insurance for those who are home or remote working on a hybrid or full time basis.
Working from home or other remote locations may mean that existing insurance policies are inadequate. The policies may not cover the employees themselves or their own or the employers’ equipment.
The types of risk to cover include:
- personal injury in the new working location
- damage or theft of company equipment
- cyber-related breaches
- motor insurance for company vehicles traveling to and from the remote working location.
These items may be covered by the employer or employee’s existing policies, but this should be verified. Some employees may not even have home insurance.
Employers could request a copy of the employee's current homeowner's policy to check that there is no significant uninsured liability for either employer or employee, and if they feel it is inadequate they may offer to pay for increasing coverage. Employers must also verify that their business insurance policies extend to home working.
It is unlikely that household insurance will cover business activities unless they have been disclosed to and agreed with the insurer. It is also unlikely that that employer's property will be covered by an employee’s household insurance. The employee's homeowner's insurer should be notified about business activities taking place at home, and similarly, if the employee relocates elsewhere, the insurer of that property may need to be notified and add additional cover for any new equipment in the home.
Household insurance policies are usually intended to cover domestic activities and not commercial ones. As an employer, you are not a contracting party on an employee’s household insurance and so cannot claim on that policy directly. Whilst some standard home insurance policies may cover working from home visitors for work-related matters are unlikely to be covered.
Employers’ liability insurance
Employers' liability insurance is compulsory for employers in the UK. This insurance may extend to staff in remote locations but as insurance policies differ, the policies must be checked. If an employer does not have employers’ liability insurance that adequately covers employees working from home, then:
- the Health and Safety Executive (HSE) can check to see the certificate. If there is not adequate liability insurance (for at least £5 million cover) the employer can be fined up to £2,500 for each day it is without an adequate policy (in practice, most insurers offer higher cover).
- employers who have failed to take out the insurance, risk meeting the costs of any potentially significant claim made by injured employees.
Certificates of liability insurance must be displayed so that employees can see them, stating the minimum level of cover provided and the company or companies covered. Since 2008 certificates can be displayed electronically. There are further fines for failing to display the certificate of insurance or refusing to make it available to inspectors.
The compulsory minimum level of insurance cover must be against liability for injury or disease to employees arising out of their employment (see the Employers’ Liability (Compulsory Insurance) Act 1969). This is part of an employer's duty to care for the health and safety of its employees. Employers’ liability insurance must cover the cost of compensation for employees’ injuries or illness whether they are caused in the normal workplace or working from home.
Compulsory liability insurance covers employees based in England, Scotland or Wales. If employees are normally based abroad but spend more than 14 days continuously in Great Britain, employers will need liability insurance for them. Otherwise, liability insurance is not required for employees based abroad, but the law in the country where they are based may require it. Taking out comprehensive policies to protect employees is always safer.
Insurers must be authorised and the Financial Conduct Authority (FCA) maintains a register of authorised insurers which can be checked online.
Insurance does not absolve employers from their legal responsibilities for health and safety, so risk assessments are still essential.
Employers’ liability insurance for people working from home or in the workplace applies to those who are classed as employees - this depends upon the complex employee status tests.
Some employers are exempt from needing employers' liability insurance, for example public organisations such as government departments and agencies, the NHS, local authorities, police authorities, nationalised industries and some other organisations which are financed through public funds, such as passenger transport executives.
Some family businesses where all employees are closely related may be exempt unless they are incorporated as limited companies.
Public liability insurance
This covers employers for claims which are not made by employees, but claims made against the employer by members of the public or other businesses. Public liability insurance is generally voluntary.
There are increased digital security threats while employees are working remotely must be trained about spotting and avoiding security threats and data breaches, for example, to not download unauthorised or suspicious applications on work devices. Networks should be secured networks. Cyber insurance covers employers’ liability for a data breaches which may involve sensitive customer information (for example credit card numbers, passwords and personally identifiable information).
If employers have supplied computer equipment for use at employees’ homes this should be covered too. Endorsements to the company's property insurance schedule should cover any equipment covered and may specify its location.
For employees who drive for work motor accidents that occur while your employees are working for you may be covered separately by your motor insurance.
Q: What are an employer’s obligations regarding employees smoking, vaping and eating whilst working from home?
Since 2007, it has been illegal to smoke in enclosed public places and workplaces in England and Wales and on public transport. Employers must display ‘No smoking’ signs in the workplace and in vehicles and make sure people don’t smoke in work premises.
However, these rules (and the applicable fines which range from £1,000 to £2,500) do not apply to those working from home. Home workers are generally free to choose if their house is smoke-free or not. However, if more than one person is working from the premises, or members of the public visit in the course of the work, the dwelling should be smoke-free during working hours, or while open to the public.
Whilst statute law does not prevent most employees from smoking when working at home employers can contractually agree or adopt a policy which states that employees should not smoke or vape during working hours, or at least during online meetings when they are visible to other staff.
Realistically, a blanket ban during the hours of work is very hard to enforce when the employees are not visible. Employees are entitled to one ‘rest break’ of at least 20 minutes for every six hours worked.
Whilst it may be difficult for employers to ban employees from smoking at home entirely, in order to honour their health and safety duties a compromise may be to periodically remind employees of the health risks of smoking during the working day combined with restrictions during online meetings.
The smoke-free workplace rules generally do not apply to vaping or e-cigarettes but employers can choose if these are contractually banned from the workplace. At home, the same rules apply.
Eating and drinking
With respect to eating during the working day, employees can of course eat and drink during their lunch or other breaks. However, eating and drinking at their desks gives rise to many potential issues, including accidental damage to office equipment.
There are many variations on a ‘food at desks’ policies and ultimately the choice is one for employers to take. Employers can ban eating any hot and cold food at the actual desks, but permit hot and cold drinks or light snacks. Employees can also be encouraged to restrict eating to their lunch breaks or their 20 minute rest break for every six hours worked.
Employers should be careful not to discriminate against employees on health grounds. Certain medical conditions such as diabetes may dictate certain eating and drinking patterns and so reasonable adjustments should be made for these employees.
An 'eating at desks' ban is hard to enforce during remote working anyway but it can help avoid unprofessionalism and encourage staff to take a break and move to alleviate muscular and skeletal issues from being seated for long periods of time.
Q: What are the considerations for employers if a remote working employee wants to move to a different part of the UK for a brief period?
In principle if a remote working employee requests to work from a different location for a brief period, employers can agree to this. Employers remain responsible for the health and safety of all employees, including those working from home or elsewhere and must assess any risks resulting from the move. For some employers remote working is evolving into a long-term arrangement and employers must regularly review their responsibilities.
If employees are moving around the UK, they should bear in mind that there may be different coronavirus restrictions in different parts of the UK. Lockdown restrictions and the lifting of measures is regulated by the UK, Scottish and Welsh Parliaments and the Northern Ireland Assembly as well as Westminster. In the event of a localised spike in infections, easing of restrictions may be halted or lockdown measures re-imposed on a local basis. If employees are working elsewhere employers need to stay informed about any local measures that may affect them.
Using different remote locations may mean that existing policies covering the employees themselves and the employers’ equipment insurance is inadequate. The employee's personal homeowner insurance and the employer's business policies should be checked to ensure there is no significant uninsured liability for either the employer or the employee.
Employers could request a copy of the employee's current homeowner's insurance and any other relevant policies to check coverage in the different location. If they feel it is inadequate, they may offer to pay for increasing coverage. The employee's homeowner insurer should be notified about business activities taking place at home, and similarly, the insurer of the property where the employee is relocating to may need to be notified. There may also be motor insurance considerations for employees driving for work purposes.
Health and safety
Employees must take reasonable care of their own health and safety. Anyone working outside of the workplace should keep in regular contact with their manager and notify them of any health and safety risks.
Employers could decide to carry out risk assessments by sending someone to visit a proposed permanent location. An inspection can take place subject to any COVID-19 or other risk although this is impractical if the relocation is short term. Similarly, IT professionals can visit each remote working location and examine the connection to the company's network (see below).
If the home or other remote office space is going to be used for some time the employer could send a safety consultant to produce a report. Alternatively, or additionally, remote workers can be trained in proper use of equipment. The training should be documented and updated as necessary. Employers can check that:
- employees feel their proposed location enables them to work safely be done safely
- employees have the correct equipment to work safely and that their equipment is secure
- managers keep in regular contact with the employee
- reasonable adjustments are made for any employee who has a disability
- chairs, desks and lighting are appropriate and designed to help prevent injuries and provide appropriate support
- electrical, phone and computer wiring is safe and secure with surge protection and avoidance of trip hazards
- smoke, fire and carbon monoxide detectors are installed and tested regularly
- locks and alarms are appropriate to secure office equipment.
Employers should check that their home working policy covers other locations, setting limits and guidelines as to what is allowed. Anyone other than the employee should be prohibited from using the company computer or network.
Other matters to check with the employee include the overall security of any remote desktop, laptop, tablet, mobile and other devices that have access to company servers and networks. These should be as secure as any computer in the home office. Employees should be prohibited from using laptops or other devices attached to the company's network on public Wi-Fi connections for example in a café.
Other considerations include:
- a cyber security review of the remote working location
- robust ID and password combinations, back-ups, firewalls and other defences that are updated regularly
- the protection of access to sensitive information especially if there is third party access at the home or other working location
- IT may wish to check that the internet service provider each employee uses offers the latest generation of security enhancements
- the possibility of cyber insurance.
Employers should have regular discussions with employees around their remote working arrangements and ensure they support their health and wellbeing.
Q: What are the implications if employees ask to work overseas during any working from home period?Now most restrictions have been lifted, returning to the workplace is mainly at employers’ discretion. Employers will have to decide upon the safest ways of working in line with COVID-risk guidelines; this means that some employers may not plan to return to the workplace until later in the year and others not at all.
If employers decide to extend remote working arrangements some staff may request working overseas for a short or longer period. This may be to see family overseas or because they feel the other country is safer. Obviously, some roles can be performed effectively overseas and others cannot.
Once quarantine arrangements are lifted the decision is one for employers to make (following discussions with employees). Below we outline some practical points, including a number of hidden issues for employers to consider.
Practical steps and policy
Larger employers who get numerous requests to work overseas may adopt a brief written policy to ensure requests are dealt with consistently and fairly and that all risks are evaluated fully. Matters to address in the policy or written agreement include:
Timing: How long may the employee work overseas for? The beginning and end date (if any) should be agreed in advance. Remember that a shorter period of working abroad may reduce some of the tax and immigration matters referred to below.
Health and safety: Employers have statutory and implied contractual duties to protect employees’ health and safety. This includes a safe home working environment. There may also be local health and safety requirements in the host country which employers may not be aware of without seeking local specialist advice. Employers can attempt to get employees to agree that they are working from home at their own risk and that the employer is absolved from responsibility for any losses suffered but such exclusion clauses are not always enforceable.
Employment rights: Employers and employees should check employment protections in the host country. There may be restrictions on working hours, rates of pay, holidays, union collective bargaining and disciplinary and grievance processes.
Tax and national insurance: Specialist local advice may also be needed on taxation in both the UK and the host country. The employer can ask the employee to shoulder responsibility for any additional local or national income taxes, registration fees or payments which may be payable. The employer can request written consent to any extra deductions from wages needed. See the separate Q&A below on taxation for employees working overseas during the pandemic.
Quarantine: Employees will also need to comply with quarantine periods which can change suddenly both in the host country and on their return to the UK. See our FAQs on quarantine.
Privacy: If employees process or store data the employer needs to ensure its data protection policies and any additional national laws are complied with. GDPR will apply if the data being handled belongs to an EU citizen.
Pensions, health care and life insurance: Consider whether the employee still qualifies for existing benefits or needs new health cover.
Choice of law and jurisdiction clauses: Most written UK contracts have a 'Choice of law' clause which specifies that UK law and jurisdiction applies if the employer and employee end up in dispute over their contract. It may be prudent to check the employment contract contains such a clause.
Immigration: Immigration visas and status issues depend upon the length of stay, the host country restrictions, and the employee’s nationality. Some countries, including the UK, had special COVID-19 visa extensions. EU and other nationals may have issues of settled or pre-settled status when they return to the UK which should be clarified before they travel overseas. Similar issues can arise with indefinite leave to remain, permanent residence or naturalisation. Immigration issues in the host country are similar. Shorter stays may be seen by the host country as a business visit for which permission may not be required depending upon the host. In some places any work is prohibited in any context without a visa for example, Hong Kong.
For further information on other overseas matters, including insurance, health and safety and cyber security please see our FAQ on employees who relocate within the UK (above).
Q: We have agreed that some home-working employees can be based in another country during the pandemic. What is the taxation and national insurance position?
If remote working employees are based overseas during the pandemic employers must consider the taxation position both here and in the host country. Generally, UK employers should continue to deduct PAYE income tax and employee national insurance contributions and pay employer contributions whilst employees work overseas. Several countries have special COVID-19 tax exemptions and relaxations but in some places normal rules apply. Employers or employees may need income tax and immigration visa advice on liabilities in the relevant location. Employers are also advised to set out the employee’s liabilities for income taxes, social security or local fee declarations in writing.
In the 27 EU and some other countries the UK currently has double tax treaty agreements. If so, employees may be exempt from income tax. An employee does not need to become a tax resident in a host country if they are on a short stay and therefore will not qualify for income tax. However, if an employee does become a tax resident or if a double tax agreement is not in place, the host country will have the ability to tax employment income earned working there.
Employers and employees should monitor the employee’s residence; in a double tax treaty country the number of days in the host country must not generally exceed 183 days in a year, although in some places the relevant time periods may vary. Other periods such as holidays in the host country may count towards the 183-day threshold.
Prior to 31 December 2020, payments such as UK national insurance contributions remain payable and similar social security payments did not need to be paid in the EU host country. The current arrangements for social security payments which may be payable in the EEA and Switzerland need to be checked. However the EU-UK Trade and Co-operation Agreement announced on 24 December 2020 includes a protocol on social security co-ordination. There is guidance on the rights of UK nationals in the EU, EEA or Switzerland to UK benefits and pensions from 1 January 2021 and an overview of the social security coordination provisions in a summary produced by the government.
In places with no reciprocal agreement, employers must normally deduct employee national insurance contributions and pay employers’ contributions for a year. This may be in addition to the host country’s social security contributions, as these obligations usually apply in the country where the employee is physically working.
Individual residence: If the employee is subject to tax in the host country, they can remain a UK tax resident and subject to UK income tax. Following completion of the appropriate tax declarations, they may be able to get credit for at least part of taxes paid in the host country.
Employers’ residence: Employers should assess the risk of whether an employee’s work in a host country could be seen as creating an establishment for the employer. If the remote working is short term this may not count as permanent establishment. However, an employee may be entering into contracts for the employer while in the host country and this may inadvertently count as setting up a new base, leading to local corporate taxation liabilities. Any income tax exemption in the double taxation treaty may be lost.
In addition to the above the employer and employee may have other obligations in the host country. For example, they may need to register with the local town hall, pay business rates or report on the employee’s income. Local advice may be needed.
This is a complex issue and employers are advised to seek specialist advice.
Q: If we are asked to shut as a business, how can we manage this for our casual staff?The government has released guidance for employers on Working Safely during Coronavirus and employers should keep checking the government website for the latest information.
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 Income Support Scheme and the Coronavirus Job Retention Scheme. 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 have been contacted by HMRC under the Self-Employment Income Support Scheme. 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 a 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 that 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 or a promise of future work 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.
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?
The rules over right-to-work checks were made more flexible during the pandemic whilst physical contact was restricted. Employers do not always physically need to see paper proof of a right-to-work in the UK in order to hire. However, the flexibility over right-to-work checks during the pandemic ends on 5 April 2022.
There are normally two main ways to check right-to-work documents - online and manually. During the pandemic there was a third way - a video call method to enable employers to continue to hire. The video call method is coming to an end and, as the Home Office is resuming normal immigration and right-to-work enforcement, employers should review their procedures.
The Home Office guidance regarding right to work checks during the pandemic meant that all right-to-work checks could be carried out using video calling without the employer seeing an employee's original documents in person. From 5 April 2022, updated Home Office guidance says video call checks will no longer be permissible. The simplest solution is for employers to return to checking applicants’ original right-to-work documents in person where possible.
For more information for employers who are still working remotely and the remaining methods of checking right-to-work documents see the Q: Can employers still conduct video call right-to-work checks work as they did during the height of the coronavirus pandemic? below.
When recruiting, employers will know that citizens of EEA countries had until 30 June 2021 to apply for settled or pre-settled status in the UK. Since 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. From 1 July 2021 onwards a new policy applies. 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 started 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: Can employers still conduct video call right-to-work checks work as they did during the height of the coronavirus pandemic?
During the majority 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 adjusted process, including asking for documents digitally and making checks on a video call. This guidance applies until 5 April 2022.
Following the end of the adjusted process employers should manually 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.
The previous temporary method entailed seeing scanned copies or photo of the original identity documents via email and the worker holding up the original document on a video call to check against the digital copy. From 6 April 2022 these video call checks will no longer be permissible. Employers should return to checking applicants’ original right-to-work documents in person where possible.
Employers who have still decided to operate remotely should ask the prospective employee to send original copies of documents verifying their right to work to their employer, by courier. The employer can then still verify the individuals identity over a video call.
After the coronavirus measures end, the original rules said that 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
However, the guidance now 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 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. Online checks will only be possible if employees have been provided a share code by the Home Office, which enables them to prove their immigration status.
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 for 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.
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 but if the representative of the employer and the prospective employee have no symptoms (and neither have been advised to self-isolate), the employer can 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 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.
If an employee is returning to a country or territory currently listed amber or red but have not been able to do so and they have a visa, leave or ‘exceptional assurance’ that expires before 30 September 2021 they 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 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 green 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.
A variety of other changes affect other applicants including doctors, nurses or paramedics working for the NHS whose visas expire 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 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.
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 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. 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. 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 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.
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.
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 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 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.
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 employers conduct disciplinary and grievance processes during the coronavirus restrictions?
Since the shift to working from home during the pandemic many employers have implemented home working and many continue to do so on a full or hybrid basis. Acas has 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 measures taken to reduce risk (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.
Workplaces that are open
If the workplace, the employer should consider whether a face-to-face hearing can be safely arranged. The employer must follow guidelines on working safely during COVID-19, including carrying out a risk assessment. All those involved in the procedure may eb able to attend safely.
If the employer goes ahead with a face-to-face meeting, the employee and their chosen companion should be able to attend the meeting in person if the employee wishes.
If the workplace is closed completely and in-person hearings are not possible the following main options are available:
Pausing the relevant process
Pausing disciplinary and grievance processes may be possible. Some managers, HR staff and witnesses will be working from home 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 may 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.
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
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