Coronavirus Job Retention scheme and furlough

The word furlough generally means temporary leave of absence from work. This can be due to economic conditions affecting one particular company or matters affecting the country as a whole. Until now the expression has not carried any meaning in UK employment law.

Furlough leave has been temporarily introduced by the government during the coronavirus pandemic to mean leave offered which keeps employees on the payroll without them working. As the furloughed staff are kept on the payroll, this is different to being laid off without pay or being made redundant. The ability to furlough employees is designed to support employers who are severely affected by coronavirus.

People who get furloughed must not work for the employer during the period of furlough but usually return to their job afterwards unless redundancies follow.

More information is available on the government website.

Any employer in the country (whatever size) will be eligible for the scheme. Charitable and non-profit organisations are included. The government guidance dated 26 March has confirmed that the UK employers that can apply includes:

  • businesses
  • charities
  • recruitment agencies (if the agency workers are paid through PAYE)
  • public authorities.

To be eligible the employer must have created and started a PAYE payroll scheme on or before 28 February 2020 and have a UK bank account.

Public sector

The government does not expect much public sector use of the scheme because many public sector employees are continuing to work throughout the coronavirus outbreak.

Non-public sector employers who receive public funding for staff costs are expected to continue to pay staff and not to place them on furlough.

The scheme is intended to apply only to employers who cannot cover staff costs due to COVID-19. These employers can access support to continue paying part of their employee’s wage, in order to avoid redundancies. It is not known if any evidence is required to demonstrate eligibility or if there is any room for dispute with HMRC concerning whether the employer would otherwise have made redundancies. It is not known if a large company with sufficient cash flow will be eligible if there is doubt as to whether redundancies would have been made, or if grants will be repayable if employers plan to make redundancies immediately after the coronavirus lockdown and furlough periods come to an end. The government have stated that the payments are grants and not a loan.

Detailed treasury guidance is expected imminently. This should clarify the mechanics of the scheme; all employers are clearly eligible to apply but we do now know the extent of the evidence required.

It is also not known if the owner of a small business who pays themselves a salary is covered. It may be that they can furlough themselves, although the self-employed are not covered. If certain amendments to the Coronavirus Bill are passed then a similar scheme may apply to the self-employed but we do not know if this legislation will be enacted in its present form. 

Where a company is in administration, the administrator will be able to access the Coronavirus Job Retention Scheme.

More information is available on the government website.

The ability to furlough employees under the Coronavirus Job Retention Scheme will be operational from the end of April. The scheme is backdated and will apply from 1 March for at least three months until 31 May (unless extended).

Employers access the scheme through an online portal. Employers should have written to the affected employees confirming that they have been furloughed and should keep a record of this. The employer provides details of the affected furloughed employees online and submits information to HMRC about their earnings and any other information required, which will presumably include the employee’s NI number. Employers should probably:

  • Fairly select employees affected for being furloughed (the government have not said this but it seems sensible).
  • Decide whether to pay 80% of salary or to supplement it.
  • Gain the employees’ written consent unless contractual provisions already cover lay off.
  • Stop the employees from working if they are now working from home, or send them home from the workplace.
  • Calculate the amounts they are claiming from HMRC (this is important).

To work out the amounts they are claiming employers will have to work out the employer NI and minimum automatic enrolment employer pension contributions for all employees.

When the portal is operational employers will apply with their ePAYE reference number, bank account number and sort code and specify the:

  • number of employees being furloughed
  • claim period (start and end date)
  • amount claimed ( the minimum length of furlough is three weeks)
  • employer’s contact name and telephone number.

Timing

Employers are advised by the government to claim in advance of an imminent payroll or at the point when they run their payroll.

HMRC will retain the right to retrospectively investigate and audit employers’ claims.

Once HMRC have the claim and agree the employer’s eligibility a BACS payment will simply arrive directly into the bank account supplied.

More information is available on the government website.

Employers make a collective claim for the group of furloughed employees under the scheme, but it is anticipated that employers may need to make more than one claim throughout the period of furlough.

It’s anticipated that employers will submit one claim at least every three weeks. Three weeks is the minimum length of time an employee can be furloughed for. 

Employers have to pay over the entire grant received for gross pay to the employees plus any top up employers are choosing to pay.

More information is available on the government website.

The employees that can agree to being furloughed are those working for businesses that would otherwise have to dismiss as redundant or lay off part or all of their workforce.

The furloughed employees must have been on the employer’s PAYE payroll on 28 February 2020, including:

  • full-time employees
  • part-time employees
  • agency employees on agency contracts provided they are not working at all
  • zero-hour contract workers provided that they are employees albeit on flexible contracts.
For employees who were changing jobs and were not on the employer's payroll on that date complexities arise - see our FAQ on placing new employees on furlough.

More information is available on the government website.

No, if an employee starts a new job the employer cannot immediately then furlough that new employee and claim reimbursement of 80% of their pay under the coronavirus job retention scheme. The scheme is only open to all UK employers that had created and started a PAYE payroll scheme on 28 February 2020. The relevant employees must have been on the payroll on that date and would otherwise be dismissed as redundant or laid off.

The situation covering new employees would be relatively unusual but some employers may have a recruitment process already underway and have made job offers which have just been accepted. The following applies:

  • Employees hired after 28 February 2020 cannot be furloughed or claimed for under the scheme.*
  • Employees on unpaid leave cannot be furloughed, unless placed on unpaid leave after 28 February 2020.
  • Employees already made redundant or laid off between 28 February and 20 March (when the scheme was announced) are eligible under the scheme if reinstated.
  • Employees on schedule to be made redundant after 20 March 2020 can be furloughed instead of proceeding with the redundancy process. 

*If new employees were not on this employer’s payroll on that date they do not qualify for the scheme with their new employer. An option may be to persuade their old employer to reinstate them so they can be placed on furlough by the previous employer, if the former employer will agree to this. This seems to be permissible within the rules and applies both to employees who were dismissed as redundant as well as those who left voluntarily.

The scheme will then cover the cost of wages backdated to 1 March. This ensures that those people who already been made redundant as a result of the coronavirus are covered.

No employers cannot backdate the furlough period for all employees. The scheme is only backdated to 1 March to cover employees who have already been made redundant as a result of the coronavirus restrictions.

Employers are only eligible to claim the reimbursement once they have agreed the furlough with employees and they have stopped working.

Employers who have just made a group of employees redundant can reinstate those employees and put them on furlough leave.

The government has confirmed the coronavirus retention scheme covers employees who have already been made redundant after 28 February 2020, if they are rehired by the same employer. It is not mandatory for employers to reinstate employees and place them on furlough, but for redundancies that are still in the pipeline, there is a risk of unfair dismissal claims if the furlough option is not considered along with all the usual method of avoiding redundancies.

Employers should remember that as part of the redundancy process they have to explore alternatives. Bearing in mind that the aim of the scheme is to ensure that employers who cannot afford to pay staff wages do not make redundancies, employees could at least argue that any redundancy decisions made between the scheme being announced on the 20 March and during the three month period of the scheme, would be unfair.  

Employers who decide they have no alternative but to press ahead with redundancies now, despite the existence of the scheme, should fully consult and keep careful records to show why the redundancies will still be needed despite the scheme’s availability.

When the government ends the job retention scheme at the end of May (unless extended) employers can decide whether there is sufficient work for employees to return. If the work has ceased or diminished, or is expected to cease or diminish, then redundancies can be implemented at that stage following full redundancy procedures for notice, consultation and selection.

The government guidance has confirmed that for both full time and part-time employees, the employee’s actual salary before tax, as at 28 February, is used to calculate the 80% payment. Fees, commission and bonuses are not to be included in calculating the amount.

Employees with two or more employers can be furloughed for each job separately. However, the £2,500 cap applies to each employer individually. So, an employee with two jobs can have 80% of salary reimbursed with a cap of £5,000.

For example, an employee who works two days a week for Employer A and three days a week for Employer B would receive their 80% of their actual salary for those two days if on furlough from Employer A. If their other role continues the employee could receive their normal salary from Employer B as well.

The guidance does not yet cover the position if the employee is then offered additional work from Employer B. It seems that this is simply an inadvertent benefit for the employee.

Under the Coronavirus Job Retention Scheme, all UK employers who would otherwise have dismissed employees during this crisis can access payments for part of the employees’ salary. This is a grant which employers do not have to pay back. The scheme will run for three months (but may be extended as necessary).

HMRC will pay 80% of furloughed workers wages, up to a cap of £2,500 per month.

Employees on who are on sick leave or self-isolating should get Statutory Sick Pay. Employers can place them on furlough leave after the sick pay period if there is no work for them to do and they would otherwise be laid off or made redundant.

The government guidance says that employees who are shielding themselves in line with public health guidance can be placed on furlough. This means employees who are extremely vulnerable (for example, due to organ transplants,  lung cancer, severe chest conditions or immunosuppressed conditions) and who have been notified by the NHS to isolate for 12 weeks.

Yes, employees must be consulted and agree to being furloughed. Changing the status of employees always is subject to existing employment law.

Depending on the wording of the employment contract there may be an ability to lay-off workers. Although lay-offs under the Employment Rights Act 1996 are a different legal concept the wording in contracts may enable some employers to impose a furlough period.

If there is no lay off provision in the existing contract the employer will need to agree with the employee that they going to become furloughed because no work is available. Inevitably employees will mostly agree to this. The main alternative would be dismissal by reason of redundancy with the possibility of a delayed redundancy payment or no redundancy payment (for employees who have worked for less than two years). In most cases employees will agree where the alternative is redundancy.

In some cases, the unions may join in a collective consultation process to agree the furlough change to the existing terms of employment. As normal employment laws apply when furloughing employees, the equality and discrimination laws will apply. For example choosing a disproportionate amount of men or women could lead to discrimination claims later on.

In a minority of cases there may be some negotiation. In sectors like hospitality, some staff may be needed and others not. Some employees may be resentful that they are having to work as they are classed as being essential whilst others are being furloughed on 80% of salary. Others may be resentful that they are classed as dispensable whilst others are working and receiving their full package. Discuss all of the options with employees and stay up to date with the latest on the Government website.

Yes, if employees do not agree to be furloughed employers can dismiss by reason of redundancy if the redundancy definitions are met and a proper process followed.

Some employers may feel that the long-term effect on their business will be inevitable closure or rationalisation. If employers feel furlough is likely to be followed by redundancies it may help to select employees for furlough using a process similar to redundancy selection. This would involve using objective criteria, such as a scores matrix based on skills, productivity, previous appraisals etc.

No, employers can make up the additional pay, but they are not required to do so. 

For employees who have been furloughed employers can choose whether to:

  • Only make the salary payment reimbursed by the government.
  • Pay all of the difference between the grant and the employee’s normal salary.
  • Pay part of the difference between the grant and the employee’s normal salary.

Any extra payment the employer chooses to make will be either the additional 20% of salary, or any amount in excess of £2,500. If management choose to pay more, it will depend upon the business’ overall health and cashflow affecting the ability to fund payments. Concerns about staff retention once the crisis has passed may also affect decisions being made.

The employers affected will have greatly reduced or eliminated income during these three or more months. So many employers will not be able to supplement the government's payment. 

There is no reason why employers could not choose to supplement the salaries initially and then choose not to in later months, although presumably then the employee’s consent to the furlough could theoretically be withdrawn. An employee would be unlikely to withdraw consent when the alternative is redundancy.

The furloughed employees are unlikely to receive £2,500 exactly. More detailed guidance is expected but some principles are already known - see the question on national insurance and pensions below.

At a minimum, employee will receive the lower of 80% of their regular wage or £2,500 per month. Employers can choose to top up the employee’s salary above 80% but they are not obliged to.
 
Fees, commission and bonuses should not be included when working out the 80% figure.

Employees who earn under £3,125 a month will receive less than £2,500. This is because for those earning £3,125 a month, 80% of salary would be £2,500:

  • Employees who earn less than £3,125 a month normally, will get 80% of their salary for three months (or more).
  • Employees earning in excess £3,125 a month will have the £2,500 cap applied. These employees will receive less than 80% of their salary for those three months (or more) unless the employer chooses to supplement it. 

The £2,500 a month figure has presumably been chosen as it is broadly £30,000 a year which is the national median net salary.

No, to qualify for the scheme, the furloughed employees must not undertake work for the employer at all while furloughed. 

Employers can place part of the workforce on furlough whilst some continue to work. The furloughed members of staff must not work at all. Employers should note that this contrasts with the coronavirus support scheme for the self-employed who may carry on in business whilst claiming the support allowance.  

Reduced workload

The coronavirus support scheme does not cover the wages of employees who are still working, but are doing less because work has reduced during the pandemic restrictions. If an employee is working, but on reduced hours, or for reduced pay, they are not eligible for support under the scheme.

Employers must therefore continue paying staff who are still working but working less, unless they vary the employee’s contract by consent. Reducing hours and pay without consent for those who are still working on a reduced basis would be a contractual breach, leaving the employer open to constructive unfair dismissal claims in accordance with normal principles.

The 80% wage guarantee will not cover zero-hour contracts or casual workers, unless they work on the PAYE system.

For casual and zero-hours contract workers who are on the PAYE system with variable hours, their previous pay can be used as a benchmark for furlough pay - see the question on calculating the figures for those who work variable hours for more information.

For casual and zero-hours contract workers who are self-employed a number of options are available:

  • A self-employed support scheme to claim a taxable grant worth 80% of trading profits, up to a maximum of £2,500 per month, for three months (unless extended).
  • Easier access to benefits to cover a drop in income. This includes removing the income floor for universal credit and moving the application process to an online and telephone process. 

More information is available in our separate question on the self-employed and on the government website.

Employers claim for the higher of either:

  • the same month’s earning from 2019; or
  • average monthly earnings from the 2019-20 tax year.

If the employee has been employed for less than 12 months before the claim, then the employer has to use an average of the actual monthly earnings since the employee’s start date.

For employees who only started during February 2020 the employers will have to use those earnings on a pro rata basis.

Employees staying at home to look after young children are thought to be included in the furlough system in preference to being made redundant. 

Employees eligible for statutory maternity pay or maternity allowance can claim up to 39 weeks of statutory pay or allowance as normal. The same principles apply for normal paternity, adoption or shared parental pay rights.

If the employer offers enhanced contractual rights these are included as wage costs that can be claimed through the scheme.

Yes, furloughed employees’ wages are subject to Income Tax and National Insurance as usual.

Employers also pay employers’ NI and automatic enrolment contributions unless the employee has opted out or has ceased saving into a workplace pension scheme - see the separate question on this below.
 
Employees also pay their automatic enrolment pension contributions unless opted-out.

The Coronavirus Job Retention Grant payments are made to offset deductible revenue costs and must therefore be included as income for Income and Corporation Tax purposes. The amounts paid out as salary are still deducted as employment costs as normal when calculating taxable profits.

Employers are still liable for employer NI and employer pension contributions on behalf of their furloughed employees.

The reimbursement from HMRC covers wages equal to the lower of 80% of the employee’s regular salary or £2,500 per month, plus the associated employer NI and pension (minimum automatic enrolment) contributions.

If employers choose to top-up the 20% of salary above the 80% grant, then employer NI and pension contribution on the top-up amount will not be funded through the coronavirus job retention scheme.

HMRC will issue more detailed guidance on this before the scheme is online.

The normal minimum wage rules do not apply to furloughed employees, as they are not working.

The government have indicated that if workers have to complete online training courses whilst they are furloughed, then they must be paid at least the minimum wage for the time spent training, so for that period employers may need to top up the 80% of salary if the employee would slip beneath the minimum wage, although they would not have to do this  for the remainder of the furlough period.

The support available for employers and individuals to cope with the coronavirus pandemic is changing almost daily. Keep checking the Government website for the latest information.

As part of their coronavirus planning employers should allocate members of senior management to monitor and apply for the measures available to support them including:

All sectors

  • Statutory Sick Pay relief for SMEs
  • The Coronavirus Job Retention Scheme whereby certain employers can claim 80% of ‘furloughed’ employees’ salaries for the next three months.
  • A small business grant funding of £10,000 for all business receiving small business rate relief or rural rate relief.
  • A Coronavirus Business Interruption Loan Scheme offering loans of up to £5 million for SMEs through the British Business Bank.
  • A new lending facility from the Bank of England to help support liquidity among larger firms, to bridge coronavirus disruption to cash flow.
  • Deferral of VAT and Income Tax payments.
  • The HMRC Time To Pay Scheme.

Retail, hospitality and leisure businesses

  • A 12-month business rates holiday.
  • Grant funding of £10,000 for relevant businesses with property with a rateable value of under £15,000.
  • Grant funding of £25,000 for relevant businesses with property with a rateable value between £15,001 and £51,000.

Self-employed

Self-employed individuals or members of partnerships can also claim support provided that their trading profits are under £50,000. See our separate question above for more detail on this.

Yes as employees remain employed during furlough leave statutory holiday will accrue during the furlough period. 

The statutory minimum holiday of 5.6 weeks per year will accrue, but the precise amount of holiday left will depend upon how much holiday the employee has already taken. If the employer provides contractual holiday, above the statutory amount, employers can ask the employees to agree this will not accrue during furlough. However, the right to accrue annual leave under the Working Time Regulations will continue unless the employee books part of the furlough period as leave.

Managing employees who have coronavirus (COVID-19): leave and pay

The government has now introduced measures (starting 23 March) requiring that people should only leave home under a list of 'very limited purposes'. This means people should only travel to and from work where work absolutely cannot be done at home and that many businesses will now close (a full list can be found on the government website). Employers can refer to the homeworking questionnaire and the remote working top tips to manage a widespread move to working from home. Employers should be mindful of anyone who may be more vulnerable due to age, pregnancy or a pre-existing condition and prioritise flexible arrangements for them during this time.

You can find information on the business support measures introduced by the government on the government website.

If your business is able to remain open you should follow the latest government advice if a worker contracts COVID-19.

If an employee contracts coronavirus, this should be treated in the same way as any other sickness absence in terms of payment. If the employer normally only pays statutory sick pay (SSP) during sickness absence, then this is what the employee should receive subject to meeting the qualifying criteria. Employees who are self-isolating on medical advice are also eligible for SSP.

Employers may also wish to apply some flexibility if the employee has contracted the virus because they were on a business trip and consider increasing payment from SSP. The government has now announced that businesses with 250 employees or less will be able to apply to reclaim SSP paid for sickness due to COVID-19. 

Employees on sick leave or self-isolating in receipt of SSP can be furloughed afterwards. 

More information is available on the government website.

If an employee was asked to self-isolate or is suspected of having contracted the coronavirus the employer should probably communicate this to the other employees. There is probably no absolute legal obligation to do this, but an employer does have a duty of mutual trust and confidence and a duty to take care of all employees’ health and safety.

Revealing the name of the infected employee should certainly not be done without the employee’s permission. Revealing details of an infected employee, including their medical situation without permission could amount to a breach of their data protection rights or right to privacy.

However, the information is likely to leak out anyway and employees are more likely to trust the employer’s virus management plans if there is openness about infected persons in the workplace so employers should not try to prevent people finding out. Instead employers and employees and the community as a whole need to work together to minimise the virus spread.

Employers may wish to instruct employees not to talk to the media about any cases.

Self-isolation: managing leave and pay

If an employee needs to self-quarantine (on the advice of NHS 111 or a doctor) the Government has announced new measures that mean they are entitled to Statutory Sick Pay (SSP) from day one. This includes individuals who may be a carrier of COVID-19 but may not have symptoms, and will also apply to people caring for those in the same houshold who display COVID-19 symptoms and have been told to self-isolate. The government has now announced that businesses with 250 employees or less can recover some or all of the costs of SSP, backdated to 13 March 2020, for SSP for staff absence due to coronavirus. Refunds will be handled by HMRC, with procedural detail  to follow.

It is good practice for employers to treat it as sick leave and follow their usual sick pay policy (or agree for the time to be taken as holiday). You could also advise employees to work from home if possible. Treating the employee as being on paid sick leave or as working from home is advisable and justified. It makes sense, otherwise concerns about lost pay could lead to potentially infected people coming into work.

CIPD also recommends that employers that offer contractual sick pay should provide this if a member of staff is asked to self-isolate by a medical professional even if they have no symptoms. Alternative options to providing sick pay are to allow people who are asked to self-isolate to work from home wherever possible and continue to pay as normal.

Remembering that both employers and employees have general implied duties to look after all employees’ health and safety, this duty must include complying with self-isolation advice, otherwise workplace colleagues could be exposed to infection.

The government has now introduced measures (starting 23 March) requiring that people should only leave home under a list of 'very limited purposes'. This means people should only travel to and from work where work absolutely cannot be done at home and that many businesses will now close (a full list can be found on the government website). Employers can refer to the CIPD's series on getting the most from remote working to manage a widespread move to working from home. Employers should be mindful of anyone who may be more vulnerable due to age, pregnancy or a pre-existing condition and prioritise flexible arrangements for them during this time.

You can find information on the business support measures introduced by the government on the government website.

These are exceptional circumstances that requires both employers and employees to follow government advice and take all possible steps to prevent the risk and spread of the virus. Employers and employees should try to come to a reasonable agreement (eg working from home, if appropriate, or taking time off as holiday or unpaid leave) to follow the latest advice. What’s reasonable will depend on the degree of risk and the individual’s personal circumstances. For example, are they more vulnerable due to an existing health condition, age, pregnancy, mental health condition or caring responsibility?
 
Contractually, if an employee removes their services with no confirmed sickness, the employer is under no obligation to pay and, depending on the precise circumstances, there may be grounds for following normal absence management processes. Given the Coronavirus Job Retention Scheme, the alternative may be to place an employee with caring responsibilities on furlough if there is no work for them to do. 

Employers have a statutory duty of care for people’s health and safety and to provide a safe place to work. There’s also a strong moral responsibility to ensure that employees feel safe and secure in their employment and employers should do everything they can to protect their workforce while complying with latest government advice.

These are exceptional circumstances and both employers and employees should take reasonable steps to prevent the risk and spread of the virus and follow the latest government advice. The government has now introduced measures (starting 23 March) requiring that people should only leave home under a list of 'very limited purposes'. This means people should only travel to and from work where work absolutely cannot be done at home and that many businesses will now close (a full list can be found on the government website). Employers can refer to the CIPD's series on getting the most from remote working to manage a widespread move to working from home.

Businesses now have to deal with the challenge of school closures. Unless employees are classed as key workers they will have to find alternative childcare. Many office workers could work from home in some capacity (in which case they can work and be paid as usual) but it’s unlikely that businesses would be able to offer full pay to staff for that amount of time, especially if the business is being impacted by the virus (e.g. reduced sales/visitors, etc). Employers need to start thinking now about how they will respond; is it appropriate to agree some of the employees will be placed on furlough leave if there is no work for them to undertake?

The government has announced that businesses with 250 employees or less can apply to reclaim SSP paid for sickness due to COVID-19 backdated to 13 March 2020. Refunds will be handled by HMRC, with procedural detail to follow.

If your operations are likely to be severely affected on a long-term basis employers may wish to start considering a future plan now. This may include introducing a voluntary special leave policy on a temporary basis where individuals can opt to take paid or unpaid leave. Be mindful that there could be some employees who are willing to take additional time off and welcome a break, but others may struggle financially if they lose pay. 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 (more information on this is available on HR-inform and on the Gov.UK website). For the furlough measures introduced under the Coronavirus Job Retention Scheme see above or refer to the government website for more information.

Medical evidence is not required for the first seven days of sickness (according to the law), ie employees can currently self-certify those the first seven days and do not need to get a note from a doctor or NHS 111. After seven days, it is up to employer to decide what evidence (if any) they require from the employee. This does not need to be fit note (Med 3 form) issued by a GP or other doctor.

Employers might also need to be flexible with notes as an employee might not be able to obtain a note straight away. Employees who contract the virus or who are self-isolating for more than 7 days can now apply for an isolation note (if required) through a new online service from the NHS website or mobile phone app. More information is available on the Government website.

Most employers should be able to implement sensible plans to respond to the coronavirus (COVID-19) threat assisted by open staff communication and co-operation. The government has now introduced measures (starting 23 March) requiring that people should only leave home under a list of 'very limited purposes'. This means people should only travel to and from work where work absolutely cannot be done at home and that many businesses will now close (a full list can be found on the government website). Employers can refer to the CIPD's series on getting the most from remote working to manage a widespread move to working from home.

In some cases, where there may be a lack of consensus, the legal position may need to be explored further.

Furlough

Furlough is a new concept in the UK workplace. In essence employers can designate employees as a ‘furloughed worker’ where there is no work for them to do due to the coronavirus. The Government reimburse 80% of furloughed workers’ wages to a cap of £2,500 a month. The scheme lasts for at least three months.

Furlough is nothing to do with being sick but relates to downturns in employers’ businesses due to the pandemic. If employees are sick during the furlough period it appears that they are placed onto statutory or contractual sick pay in the usual way and then back onto furlough pay unless normal working has resumed again by the time they recover.

The especially vulnerable who are shielding for 12 weeks in line with public health guidance can be placed on furlough if the employer agrees.

Suspension on medical grounds

This specific type of suspension does not especially cover the coronavirus (COVID-19) situation, unless the legislation so that it does.

Suspension arises when an employer imposes the decision to send an employee home from work, usually on full pay. Most suspensions occur when employees are being investigated for misconduct (often as part of a disciplinary process allowing an investigation to take place) and more unusually for medical health or safety reasons, including during pregnancy to protect the employee. There is legislation giving employers the right to suspend employees on full pay if their health and safety are in danger, for example from certain substances which are hazardous to health including radioactive substances, and certain chemicals and lead carrying poisoning risks. Employees are suspended for their own protection.

The phrase 'suspension on medical grounds' is also used as a generic reference to an employer’s decision to suspend employees for medically related reasons to protect other staff. This type of suspension can potentially apply in the coronavirus (COVID-19) situation. If an employer chooses to suspend employees for a brief period, then as long as this is on full pay, the suspension is likely to be permissible (although strictly speaking it is not a statutory ‘medical suspension’). This is unlikely to arise in the current pandemic as the suspension should be on full pay and employers are more likely to furlough employees in order to obtain government support in paying their wages.

Suspension may arise if employees refuse to work from home, or do not follow precautions. There is an implied contractual duty to ensure health and safety of employees. Instructing an employee not to attend work on full pay is likely to be deemed reasonable if there are rational grounds such as trying to prevent the spread of the virus to non-infected employees to honour legal obligations to them.

Assumptions that employees should be suspended because they may have the virus solely on the basis of ethnic or racial background would be discriminatory and a breach by the employer of the implied term of trust and confidence.

Sickness absence

Broadly speaking, sickness absence from work is absence that is attributed to sickness by the employee and accepted as such by the employer. In the current coronavirus (COVID-19) context it appears that sickness absence will cover employees:

  • who test positive for the virus; and
  • those with potential virus symptoms; and
  • those who self-isolate because they are given a written notice issued by a GP or by NHS 111. Employees can now also apply for online isolation notes.

Employees who have no symptoms and self-isolate without medical advice or without the employer’s consent are unlikely to be on sick leave, depending on the circumstances.

Self-isolation

Self-isolation means staying at home and avoiding contact with other people. Employees with symptoms, those who have been in close contact with a coronavirus-infected person in the UK, or who have travelled to an affected area abroad may need to do this for 14 days to limit infection.

The term 'self-isolation' is used generically and would also cover those doing so as a precaution following more distant contact with an infected person and the majority of those following the government's measures introduced from 23 March to stay at home apart from in very limited purposes referred to above. Statutory sick pay (SSP) is payable to those with symptoms or who self-isolate on medical advice. Following emergency government legislation, this should now start on day one in coronavirus (COVID-19) cases rather than after the usual first three days. More information is available on the government website.

Employees who choose to self-isolate without written medical notice or symptoms are not entitled to statutory sick pay, although the government may review this.

Protecting the workforce and remote working

Please note, the government has now introduced measures (starting 23 March) requiring that people should only leave home under a list of 'very limited purposes'. This means people should only travel to and from work where work absolutely cannot be done at home and that many businesses will now close (a full list can be found on the government website). Employers can refer to the CIPD's series on getting the most from remote working to manage a widespread move to working from home.

If your business is able to remain open the legal position concerning taking employees’ temperatures in connection with the coronavirus is similar to the medical testing of employees for other reasons. The easiest way for employers to take employees’ temperatures or conduct medical tests is to seek the employees’ consent. The contractual terms agreed in the employment contract or accompanying policies may be of assistance to employers who want to check employees’ temperatures at work.

Employee’s consent

Employers who wish to monitor employees’ temperatures should openly explain the current coronavirus advice, their concerns and risk management strategy. Employees may then consent to having their temperatures taken.

If employees do not consent and there is no contractual provision or agreed policy covering the situation then taking an employee’s temperature is unlawful. Certainly, an employer should not try to force employees into having their temperature taken, or issue threats of suspensions, disciplinary or dismissal processes. Informed consent is needed, and consent cannot be given under pressure or duress.

Contractual provisions

Express terms: Some employment contracts have clauses in them which impose an obligation on employees to undergo drugs testing, providing a sample, of urine, hair, saliva or blood etc. Depending on the wording of the clause, taking a temperature might be covered by these clauses.

If an employee refuses to comply with a pre-existing clause which encompasses taking temperatures, then the employee may be in breach of contract by refusing to co-operate. If there is a clear clause which covers taking temperatures then refusal might provide grounds for a disciplinary or dismissal procedure.

Implied terms: A possible course of action for employers who wish to insist on testing (without an express clause) would be reliance on a possible implied contractual term that employees should comply with a reasonable request from their employer. On the one hand, employers do have a duty to protect the safety of their workplace under the Health and Safety at Work Act which includes ensuring that employees are not infecting others with the coronavirus. On the other hand, from a practical point of view, an employee may be infected with coronavirus without yet having a raised temperature. So, temperature checks may not be the most justifiable or effective method for protecting the workforce. Different businesses such as public transport and healthcare also pose different safety risks where testing may be more justified.

Whether insisting on taking temperatures is reasonable (without an express clause) depends on a number of factors including the employee’s role, official health advice on precautionary measures at the time, the employee’s symptoms and the alternative causes of action, such as self-isolation, that are available. It is preferable for employers to suggest working from home or self-isolation rather than trying to force a reluctant employee into temperature or other testing.

Data protection

If employers do test temperatures, the recording of temperature testing data needs to be handled appropriately because the data (similarly to drug testing) is likely to be covered under data protection law.

Any data that an employer has about an employee’s temperature, symptoms, where the employee has been and whether he or she has tested positive for coronavirus is sensitive personal data and additional requirements apply to ensure the data is processed legally. It is preferable for employers to have a policy document covering the processing to ensure compliance with key data protection principles including transparency, data minimisation and security requirements.

Employers should be entitled to process such employee information on the basis of the employer’s health and safety duties. This is provided that it can be shown that temperature information is necessary to protect the health, safety and welfare of employees. Employers should consider and document the risk to employees and any alternatives to obtaining and processing the data that have been considered. The health and safety context, such as decisions relating to office closures or disinfecting the workplace will also be relevant to justify the processing. (See paragraph 1, Schedule 1 Part 1 of the UK Data Protection Act 2018 and Article 9(2)(b) GDPR).

Please note, the government has now introduced measures (starting 23 March) requiring that people should only leave home under a list of 'very limited purposes'. This means people should only travel to and from work where work absolutely cannot be done at home and that many businesses will now close (a full list can be found on the government website). Employers can refer to the CIPD's series on getting the most from remote working to manage a widespread move to working from home.

Risks at work

Pregnant women have extra statutory protection to ensure they are protected from risks at work. Employers have a duty to protect all employees and an even higher duty towards any staff who are pregnant. The latest government advice is that pregnant women be extra cautious and avoid non-essential contact as much as possible so you should offer working from home as much as possible.

Where it is not possible to offer home working, pregnant employees can be offered suitable alternative employment on a temporary basis (that could be done from home) or suspended from work on medical grounds (on full pay). If the pregnant employee remains suspended until the fourth week before the expected week of childbirth, this triggers the commencement of her maternity leave.

Pregnant employees

Employees who are pregnant during this crisis can start maternity leave as usual. If a woman’s earnings reduce due to a period on furlough or statutory sick pay prior to  maternity leave starting this may affect statutory maternity pay if the leave reduced the average weekly earnings.

Leave and pay

For staff already on maternity, paternity or adoption leave or shared parental pay normal rules for statutory pay apply. For example, eligible mothers will be entitled to claim up to 39 weeks of statutory maternity pay or maternity allowance. The rate is 90% of average weekly earnings for the first six weeks, followed by 33 weeks of pay at 90% of  average weekly earnings or the statutory flat rate (whichever is lower). The statutory flat rate rises to £151.20 a week from April this year.

Enhanced contractual maternity, paternity, adoption and shared parental pay are included within the wage costs that employers can claim back through the Coronavirus Job Retention Scheme.

Please note, the government has now introduced measures (starting 23 March) requiring that people should only leave home under a list of 'very limited purposes'. This means people should only travel to and from work where work absolutely cannot be done at home and that many businesses will now close (a full list can be found on the government website). Employers can refer to the CIPD's series on getting the most from remote working to manage a widespread move to working from home.

The term 'casual' covers a wide range of legal status; workers labelled as casual could potentially be employees, workers or self-employed. Their status may not have been called into question until considering their rights following the coronavirus outbreak. The government has introduced a range of support measures for businesses during this time, including the Coronavirus Self-Employment Support Coronavirus Job Retention Schemes. More information can be found in the FAQs on these schemes on the government website

The precise legal rights of casual workers will depend upon their status which is governed by how the arrangement operates in practice and upon the terms of the contractual documentation. Some staff deemed to be casual may in fact be protected as employees.

Statutory self-employment scheme

If the casual staff are not employees on the PAYE system, then, as self-employed persons, they should be contacted by HMRC under the Coronavirus Scheme for the self-employed. The business that provided them with work will not be involved in the process, and the worker should obtain a payment provided that their average profits in the past three tax years were under £50,000. The individuals must be predominantly self-employed rather than employees i.e. their self-employed profits must be more than half of their average taxable income. See our FAQ on this scheme.

Coronavirus Job Retention scheme

If the casual staff are employees on the PAYE system the employer may be able to include those staff in its claim for an 80% contribution towards their pay under the scheme.

Contractual issues

If casual staff have already been assigned to shifts, the legal position will depend upon the contractual arrangement. Some contracts state there is legally binding commitment once a shift is offered. If so then the organisation may be contractually bound to pay the worker. In other cases, previous custom and practice may mean that a worker is paid for a last-minute cancellation of a shift.

Breach of contract claims can arise if an organisation has agreed work and then attempts to renege on this. Ideally the contract will contain a clear policy on cancellation of work. If no shifts have yet been offered or accepted, then there may be no contractual obligation to pay the individual if there is a coronavirus related business closure or lock down.

Frustration

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.

Practical points

Casual workers who are self-employed should be able to claim 80% of their average income under the self-employed support scheme. If they cannot, for employers who can afford to do so, paying them something for a last-minute cancellation due to coronavirus closures may be a practical and ethical compromise. Some casual workers may have contractual protection and may threaten to make a claim so a goodwill payment of some expenses, an inconvenience payment, or a commitment to future work if a rota or shift is cancelled at short notice may resolve the situation. 

(Previous recommendations of the Low Pay Commission proposals in 2019 to compensate casual workers for last-minute cancellations of shifts have not been implemented as yet.)

On 26 March the government announced help for the self-employed which is similar (but not identical) to the coronavirus job retention scheme.

Self-employed people can claim taxable income support worth 80% of their average monthly income, capped at £2,500 per month if they are adversely affected by the coronavirus pandemic. 

Their income will be calculated by taking the average of their income over the last three years. Income is based on PAYE salary not dividends which do not count towards the average income. This coronavirus self-employment income support scheme will be open for at least three months. 

The eligibility criteria are that:

  • The self-employed person must have submitted a tax return for 2018-2019*.
  • The self-employed person must have trading profits in 2018-2019 of under £50,000.
  • Self-employed people who earn more than £50,000 p.a. do not qualify.
  • The self-employed person must make more than half of their income from self-employment.
  • Employees who work for an employer but have some separate self-employed work on the side which is less than half their income will not be eligible.

*Self-employed people whose tax return has not been submitted and is still due after the 31 January 2020 deadline, can still submit a late tax return for 2019 for a further four weeks from 26 March.

Yes, the self-employed can claim the new income support payments and continue working for their business. This is in complete contrast to furlough leave under the coronavirus job retention scheme for employees - under that scheme the employees must not continue to work for the employer.

The self-employed person or partner must have lost trading profits due to COVID-19 which presumably will be assumed if profits fall over this period.  

Eligibility for self-employment income support depends upon the individual’s income being under £50,000 on average for the last three years; no equivalent restriction applies to employees on furlough under the coronavirus job retention scheme.
Self-employed people do not have to initiate the application. It is understood that HMRC will contact them with instructions and then the grant will be paid directly into their bank account in one lump sum payment. Effectively, the self-employed who are eligible will get their 80% of March, April and May's money as a lump sum in June.

Self-employed income support is unlikely to be operational before the end of June. So self-employed people may need to borrow money to help with cash flow over the next few weeks until their income support application is processed. There are also business interruption loans available and the July self-assessment tax payments can be delayed for six months.

People who first became self-employed in the tax year 2019-2020 (and do not therefore quite have a full year of accounts) will not be able to claim under the scheme.

Those who are ineligible for the Self-Employed Income Support scheme may be able to claim Universal Credit although those with more than £16,000 in savings may be restricted in what they are able to claim.

No, self-employed people do not have to have traded for three years to claim under the coronavirus self-employment income support scheme, but they do have to:

  • have traded in the tax year 2019-2020
  • be trading when the application is made (or would be trading except for the pandemic)
  • intend to continue trading in 2020-2021.

The self-employed person or partner must have lost trading profits due to COVID-19. The 80% is based on average monthly income over the past three years. This means that figures for average trading profits in 2016-2017, 2017-2018, and 2018-2019 will be used and these must be under £50,000 on average.

If the person started trading after 2016, HMRC will use the years for which a self-assessment tax return has been submitted to calculate the average profits. The profits must be more than half of the individual’s average taxable income over those three years.

Yes, if profits are over £50,000 on average the self-employed person will not be eligible, whereas if the profit is under £50,000, they will be.

Self-employed people, who have to self-isolate, or whose work stops, have limited sick pay protections as they are not eligible for statutory sick pay although other benefits are available.

Self-employed income support

There is a new self-employed income support scheme which provides freelancers and self-employed people with guaranteed earnings during the pandemic. The payments depend upon the self-employed person’s previous tax returns and will be administered by HMRC. This scheme provides state help for self-employed workers in a similar way to the scheme for reimbursement of furloughed employees’ salaries. See the question on the assistance available to self-employed people above for more information.

Other rights 

The other precise legal rights of self-employed workers depend upon the terms of the agreement and how the arrangement operates in practice. Some workers deemed to be self-employed may in fact be protected as employees.

If workers deemed to be self-employed do in reality have employee status then employers should consider the new support measures introduced by the government, including the Coronavirus Job Retention scheme and furlough leave. 

Further state help

The 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 isolation or illness rather than day eight. 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 benefit is worth £73.10 a week, or £57.90 for the under-25s.

The government is also temporarily changing 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 to universal credit. 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 will be given support through the benefits system by raising universal credit so that the self-employed receive  a similar amount to the £94.25 statutory sick pay.

The government has also announced a new £500m fund to support economically vulnerable people which will be allocated by local authorities. More information can be found on the Government website.

Business continuity

The government has now introduced measures (starting 23 March) requiring that people should only leave home under a list of 'very limited purposes'. This means people should only travel to and from work where work absolutely cannot be done at home and that many businesses will now close (a full list can be found on the government website). Employers can refer to the CIPD's series on getting the most from remote working to manage a widespread move to working from home.

Home working has many practical and legal implications including health and safety at home. Having a home working or remote working policy is always a good idea, the policy can then be relied upon if a temporary period of home working becomes necessary.

There are many practical and legal matters to address including:

  • Supervision: Check the home working policy addresses how to supervise staff, communicate with them and monitor performance and output. Provide guidance for line managers as reporting in at regular times can help combat isolation and stress. Employers might need to install video conferencing apps such as Skype so that meetings can occur remotely. Staff must easily be able to communicate with the employer, and other people they work with. Managers should be aware that different motivation techniques may be needed for home workers.
  • Equipment: Think about equipment requirements such as laptops, couriers, stationery, photocopying, printing etc. Will the employee require specific equipment? How will this be funded, installed and insured and who is permitted to access it? Employers should consider computer virus protection and other security measures is there someone available by telephone to help with IT issues. There is no obligation on an employer to provide computer or other equipment necessary for working at home but given the latest Government advice employers should do what they can to enable homeworking.
  • Working time: Employers may need to specify any changes to hours of work. Will the employee need to be available for work during strict office hours or work a specified a set number of hours per day? There may be more flexibility over working hours in a working from home arrangement, but the Working Time Regulations 1998 should still be complied with, including the working week and daily rest break.
  • Health and safety:Employers are responsible for an employee’s health, safety and welfare both when working in the employer’s premises and when working from home. This means that employers should usually conduct risk assessments of all the work activities carried out by employees, including those working from home. Bearing in mind that a coronavirus workplace closure is likely to be short term, undertaking physical risk assessments of each employee’s home will not feasible. As the risks of being at work will have been deemed higher than working from home, employers may decide that home working risk assessments for short periods of home working may be conducted using some electronic risk assessment questions and providing employees with guidance to follow at home. You may wish to refer to the homeworking questionnaire to get you started.
  • Salary and expenses: Salary and benefits should obviously remain the same during a period of home working although changes to expenses may be appropriate if normal travel expenses and allowances are no longer needed.
  • Data protection: Employers should make sure data protection obligations are maintained. An employee using their own computer should still process information in compliance with data protection principles. Employers may need to include express terms reserving a right to monitor work communications on home-based devices and set out a reminder about home security, confidential information, passwords, shredding etc. How data is transferred between home and the workplace also needs careful consideration.

The World Health Organisation has declared the coronavirus a pandemic and the government has now introduced measures (starting 23 March) requiring that people should only leave home under a list of 'very limited purposes'. This means people should only travel to and from work where work absolutely cannot be done at home and that many businesses will now close (a full list can be found on the government website). Employers can refer to the CIPD's series on getting the most from remote working to manage a widespread move to working from home.

For businesses that are able to remain open this will mean skeleton teams will have to operate. To ensure fairness of those who can continue to work the alternatives to arranging for the workload of an absent employee to be covered by the employee's colleagues are fairly limited.

The options include:

  • In line with the latest Government advice, working from home is the first option to consider. Employees may be able to work at home outside normal working hours (if childcare is needed during working hours).
  • Placing some employees on furlough leave with others still working but rotating this arragement after three weeks where possible.
  • Paying the skeleton team who are still working their normal salary with the non-working staff receiving 80% of pay under the furlough scheme.


Other options include:

  • Seeking replacement cover from agencies or from a pool of any casual workers who have been used previously if available.
  • Temporary transfers from one branch of an employer to another may resolve a temporary burden of staff shortages.
  • Working with the remaining staff and the absent employees to establish other forms of working that may be suitable.
  • Closure of the workplace temporarily.
  • Possible planned decline in productivity or activity for a limited period.

Employers will need to work with the remaining employees to establish whether other forms of work pattern may be suitable. Any form of sick leave can place a significant financial burden on a small business especially in a pandemic situation. Covering absent employee’s work, inevitably places an additional burden on remaining employees, and will negatively impact business operation and profit. The government has announced support measures for businesses at this time, including the Coronavirus Job Retention scheme. Information is available on the government website.

Lay-offs and short-time working are relatively rarely used legal provisions which cover situations where there is not enough work for employees to do.

Employers should also consider the Coronavirus Job Retention Scheme and the option to furlough workers which may be more suited to the current situation. Information is available above and on the government website.

  • Lay-offs: employer asks an employee to stay at home and not attend work or be paid for a temporary period.
  • Short-time working: the employer requires their employee to work less than their regular contractual hours, for example a three-day week.

Employers can only implement lay-offs or short-time working if there are express, correctly drafted clauses in their contracts. Employees affected may be able to claim redundancy pay. Employers can also implement lay-offs or short-time working if the employer gets consent to a period of lay-off or short-time working at the relevant time. In a normal situation employees may agree to this if they feel their only alternative is redundancy; but they are unlikely to agree to it during the coronavirus pandemic as a period of furlough comes with at least 80% of pay (subject to the £2,500 cap) and is therefore preferable.

Employees may be laid off after the pandemic and those with at least one month’s service who fall within the criteria will be entitled to a small fixed statutory guarantee payment to partially compensate them for the reduction in salary. Employees who are affected for longer periods may be entitled to redundancy pay. The employees must resign with written notice of their intention to claim this. Employers can avoid redundancies if they guarantee employees 13 consecutive weeks of work within four weeks of receiving the employee’s notice.

In the current situation, if workplaces are forced to close to prevent the spread of the coronavirus (COVID-19) virus, most employers will still have to fully pay or furlough employees. Lay-offs and short-time working may give employers greater flexibility once the Coronavirus Job Retention Scheme ends. These methods may enable employers to achieve savings on salaries during subsequent temporary closures if the required clauses are already in the employees’ contracts or if they consent subsequently. Clauses should reserve the right to reduce pay according to the reduction of work. Obviously, such plans are likely to have a detrimental effect on morale and this impact should be considered alongside other potential options.

Employers should also consider the Coronavirus Job Retention Scheme and the option to furlough workers. Information is available above and on the government website.

It is inevitable that in some sectors not all people could genuinely work from home and still be productive. Others may be needed in a workplace, laboratory or warehouse.

A similar situation is arising in many sectors during the coronavirus pandemic, for example:

  • Although schools are closed to most pupils a skeleton staff is being retained to care for the children of key workers. This means that some teachers will be working in the school, some will be paid but at home.
  • Although restaurants are closed many are providing a takeaway service. This may mean that some kitchen staff are working but all waiting staff are not.

Some employees may simply be able to work from home and others not. These situations are very uncomfortable for management and some decisive choices will need to be made. The first point is that the legitimate reasons for the disparity of treatment must be explained to the employees to help them understand the employer’s rationale. Generally, from an employment law perspective treating employees differently is legally permissible as long as there is not a discriminatory reason for the choice. As long as there is no discrimination employers can decide who works from home and who doesn’t, bearing in mind the latest government advice. If employees are vulnerable, pregnant or are in an at-risk group then this may assist the employer’s choices about prioritising who is asked to carry out work that can be done at home.

Similar issues arise with the new ability to furlough workers. Effectively sending some staff home on 80% (or 100% of pay) may not sit well with some employees who are still attending work for the similar remuneration. Differential treatment always causes problems. Employers will have to explain the reasons behind their choices. In some situations, it may be possible to rotate employees working from home so that it feels fairer, although each period of furlough leave must last for at least three weeks before it can be rotated. In other situations, employers may feel able to promise future bonuses to the employees who are still working, provided the business is able to honour that pledge.

Employers do not always physically need to see paper proof of a right to work in the UK in order to hire. Where contact is restricted employers can still hire.

There are two main ways to check right to work documents - one of these methods is entirely digital. Even with the latest government advice employers can still hire. Urgent increases of staff are needed especially if they are engaged in a critical sector, for example healthcare or food supply. 

There are many people whose work has been affected by coronavirus closures and who are seeking new roles, despite the new government scheme to help employers retain staff on the payroll.

Manual checks

Manual right to work checks involves 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. The employer keeps a clear photocopy of the document which may be a passport, biometric residence permit, identity card or birth and naturalisation certificate. The employer finally records the date the check was made.

With social distancing these physical checks may be more difficult. Provided the representative of the employer and the prospective employee have no symptoms (and neither have been advised to self-isolate) it should be possible to take a photocopy of documents, provided NHS advice is followed including washing hands after handling the document.

Digital checks

In some cases, the government’s digital right to work checking service allows employers to check whether staff have the right to work in the UK digitally. The employer then does not need to take physical copies of the original documents.

The digital service is available on the government website and is a free method for employers to check certain individuals’ right to work. It is currently possible to check the following prospective employees:

  1. Non-EU (or EEA) nationals holding biometric residence permits or cards.
  2. 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 the individual  can then share with the intended employer. The employer still must keep evidence of the right to work check, usually a pdf of the profile page confirming the right to  work with the individual’s photograph and the date of the check. 

Employers should save the profile page electronically or in hard copy, for the length of the individual’s employment and two years afterwards. Employers then confirm to the employee that they are keeping   this data to ensure compliance with data protection provisions. 

Other applicants such as EU/EEA nationals who do not have settled status will still have to prove their right to work through documents, such as their passport in the traditional manual check.

EU reminder

Right to work checks remain unchanged until 31 December 2020. When recruiting, employers will know that EU citizens can still enter, live and work in the UK (although this will be limited due to the current coronavirus travel restrictions) until 31 December 2020.

EU citizens living in the UK before 31 January 2020 have until 31 December 2020 to apply for settled status. Those arriving after 31 January 2020 can apply for European temporary leave to remain until 31 December 2020 which then provides the ability to live and work in the UK for three years. From 1 January 2021, there is a new immigration system for new arrivals. 

Other points

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.

It is 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 either the manual check or the online check 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.

Yes, provided that the volunteering meets the criteria and time limits below employers do have to give employees time off for emergency coronavirus volunteering. Over 750,000 people have volunteered so far to help in the coronavirus pandemic, volunteering to help the NHS or elderly in the community. Special legal provisions have been brought in to help this volunteering effort. More information is available on the government website.

Employees on furlough leave

These employees can volunteer as long as they do not provide services to or generate revenue for their own employer. Furloughed employees can volunteer to help (e.g. the NHS) or elsewhere subject to current movement restrictions.

Employees and workers not on furlough leave

Employees and workers can take special leave to volunteer to help organisations such as the NHS and social care providers. A full list of other organisations will be issued by the government.

Those working for small employers with fewer than 10 employees, civil servants and those working in the legislature, and police officers are excluded.

Length of leave

Emergency volunteering leave is taken in blocks of two, three or four weeks within a 16-week period. An employee or worker can take a maximum total of eight continuous weeks of voluntary leave in two consecutive 16 week periods.

Volunteering certificate

Emergency volunteering certificates are issued by the Department of Health, the NHS, or local councils. The employer must be given the certificate three working days in advance of the emergency volunteering leave. 

Payment

The volunteer can be compensated by the body they are volunteering for but during the period of leave employees are not entitled to their normal salary. They remain entitled to all normal terms and conditions of employment which apply when he or she is not absent from work.

Employee travel and planned annual leave

Workers who have not taken all of their statutory annual leave entitlement by the end of 2020 due to COVID-19 have a new legal right be able to carry it over into the next two leave years. Employers’ leave years will vary - in some cases this year long period aligns with the calendar year, in other cases the financial year, the academic year, or the anniversary of when the employee started employment. 

UK workers are usually entitled to 28 days holiday per year including bank holidays. This entitlement cannot normally be carried forward into the next leave year unless the employee:

  • agrees this with the employer; or 
  • is on long-term sickness absence; or
  • •is on maternity leave and unable to take all of her entitlement as a result. 

Payments in lieu of holiday are usually disallowed unless the worker is leaving the employer.

New provisions

To prevent workers losing their holiday, and to enable key workers to keep working, the normal rules on carrying over annual leave have been modified. This will support provision of staff in key sectors (such as food and healthcare) during the pandemic without them losing out on holiday entitlement.

Employers can now allow up to four weeks (not the full 28 days) of unused leave to be carried into the next two leave years. The rules say that it must be ‘not reasonably practicable’ for the worker to take some, or all, of the holiday to which they are entitled due to the coronavirus. If so they can carry four weeks forward for two years. The remaining 1.6 weeks of holiday can be carried forward by one year by agreement.

These amendments to the Working Time Regulations 1998 apply to all employees. Workers who do not have employee status such as agency workers, and some casual and zero-hours contract workers, are also included (see Working Time (Coronavirus) (Amendment) Regulations 2020). The only exceptions are those covered by regulations other than the Working Time Regulations 1998 (including some merchant seamen, fishermen, and civil aviation staff, some armed forces staff and doctors in training) to whom special rules apply.

The normal obligations on employers to ensure workers take their statutory entitlement in  one year or incur a financial penalty are also lifted.

If you have other queries about COVID-19 not covered above, please contact the CIPD member employment law helpline on 03330 431 217 or visit the Community pages

We know that our members and customers are facing challenging times and we are here to help you. Due to a high number of calls we apologise that your wait time may be longer than usual. We appreciate your patience and will connect you to an expert adviser as soon as we can.

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