Our series of top tips will help you and your team get the most out of homeworking
Q: Are employees entitled to paid time off during the pandemic if their child’s school is closed or if their children’s year group has not returned?
UK schools closed for most pupils from 23 March but remained open for children of key workers and for vulnerable children including those with special education, health and care issue plans in place.
From the week commencing 1 June, some primary and secondary schools will open more fully. This only applies to some year groups and in certain local authorities. National and regional plans with respect to schools are changing as the pandemic progresses and employers should check the most current government and local advice. There is a great deal of variability across the country. For further information on schools reopening see our Returning to the workplace FAQs.
There are a number of paid and unpaid options (see below) for employers with employees whose child’s school remains closed to their year group. Employees’ legal entitlements to time off when schools and other childcare providers are closed are fairly limited. However, employers should be flexible where possible and can decide on the most sensible course even if that is over and above the statutory legal minimum.
Options during full or partial school closure
The pandemic is an exceptional circumstance and both employers and employees should take reasonable steps to prevent the risk and spread of the virus and follow the latest government advice. Current announcements still state that people should continue to stay at home as much as possible. People who can’t work from home (for instance, those working in construction or manufacturing) are being 'actively encouraged to go to work'. However, people should avoid public transport if at all possible. It's crucial that employers remember that the physical, emotional and mental wellbeing of the workforce remains the key principle of managing any return to the workplace.
Office workers can more easily comply with the advice to work from home, and many can work from home in some capacity and be paid as usual. This is not possible in all cases. Employers must continue to communicate openly with employees and workers, to understand their concerns and perspectives. If it is not essential for work to happen in the workplace, then the default should remain that employees continue to work from home, especially where the safety of employees cannot be guaranteed. The Government has released guidance on Working safely during coronavirus for employers attempting to make workplaces COVID-secure and organisations should keep checking the government website for the latest information.
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, furloughing them may be an option. Alternatively, the employer and employee may be able to agree flexible working arrangements including adjustments to hours and times of work.
Unless employees are classed as key workers, or their child’s year group has returned to school, they may have to find alternative childcare if they cannot work from home.
Employers of employees who are unable to work from home have a number of options, which are described below.
Following the launch of its Coronavirus Job Retention Scheme, the updated government guidance confirms that parents whose children cannot attend school can be put on furlough for three-week periods for the duration of the scheme. Employers or employees can initiate a request for furlough although they both need to agree to the arrangement. The guidance makes it clear those who cannot continue working because of childcare responsibilities fall within the scheme.
The employer can currently claim reimbursement of a full 80% of the furloughed employee's wages (up to £2,500 per month) from HMRC, although from August onwards employers may have to contribute towards this percentage.
Furlough may help businesses that would be unable to offer full pay to staff because the business is being impacted by the virus (because of reduced sales, for example). Employers can agree that employees will be placed on furlough leave or may prefer them to work from home if there is work for them to undertake.
Employers are obliged to consider flexible working requests. In the context of full or partial 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. However, during the lockdown, putting alternative arrangements in place involving other people may be in breach of the restrictions on movement and furlough may be a better option.
Unpaid parental leave
Employees 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, then the employees may be able to claim statutory sick pay.
If an employer does not wish to furlough staff, or if the staff are reluctant to agree to the drop in salary, an alternative 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 salary.
Unpaid and other leave
If operations are likely to be severely affected on a long-term basis, employers may consider future plans for when the furlough scheme ends. This may include 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.
For more on the furlough measures introduced under the Coronavirus Job Retention Scheme, see our Furlough FAQs or refer to the government guidance, Claim for wages through the Coronavirus Job Retention Scheme.
For more on employees returning to work and school related matters see our Returning to work FAQs.
Q: Are the lockdown rules different in Scotland, Ireland and Wales?
Public health is a matter that has been devolved to the separate administrations in Scotland, Wales and Northern Ireland, so the rules are different across the four nations of the UK.
The lockdown changes announced on Sunday 10 May apply only to England, and the three other nations have adopted their own approach.
The ‘stay at home’ advice remains in place in Scotland, with lockdown extended to 28 May. From that date onwards, the first phase of the Scottish Government’s four-part plan to ease lockdown restrictions is likely to begin. From 11 May unlimited amounts of outdoor exercise per day have been allowed, making use of open spaces close to your home where possible, and avoiding all unnecessary travel.
Some of the restrictions that will be eased in Phase One include being able to take part in non-contact outdoor sports and being allowed to meet members of another household outdoors, providing social distancing rules are still followed.
Members of the public have been advised to wear a face covering in Scotland, such as a scarf or homemade mask, in busy places where social distancing is difficult, including public transport and supermarkets. The Scottish Government has also introduced a test and protect system along with a general plan for safer public transport use.
The Welsh government announced three changes to lockdown rules coming into force from Monday 11 May including:
- Exercising locally outside more than once a day, but not a significant distance from home.
- Re-opening of garden centres, providing the two metre social distancing rules can be maintained.
- Allowing local authorities to consider reopening libraries and recycling centres, provided this can be done safely.
People with specific health or mobility issues may need to travel further than the area around their home to be able to exercise.
In Northern Ireland there is a five-stage plan for easing lockdown restrictions with flexible target dates although it is hoped the final stage will be reached by December.
In the first stage, groups of four to six people who do not share a household will be allowed to meet outdoors while maintaining social distancing, and large outdoor-based retailers, such as garden centres, will also be allowed to reopen. Visits to immediate family indoors will be allowed with social distancing, except where those family members are shielding.
Driving for daily exercise is allowed providing there is a reasonable reason and it is no further than five kilometres from home.
In Northern Ireland and Wales, schools will not reopen before September. In Wales, the education minister has said schools will reopen when it is safe to do so.
In Scotland, schools are scheduled to begin to reopen on 11 August for the beginning of the autumn term. Scottish school hubs have already been supporting vulnerable pupils and the children of key workers, including during the summer holidays. The early August return will involve a blend of school and on-line learning. There will be some special support over the summer for children due to start primary or secondary school.
Q: What are the legal implications employees working from home on a short-term basis? Is the employer liable for employees’ health and safety at home?
The Government's latest announcement (on 10 May) outlined that people should continue to stay at home as much as possible and that people who can work from home should continue to do so. 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.
Q: Where a skeleton team has to operate due to sickness, carers off due to school closures or caring for relative, how does the employer ensure fairness of those who have to continue to work?
The Government's latest announcement (on 10 May) outlined that people should continue to stay at home as much as possible. The Government has stated that people who can work from home should continue to do so but people who can’t work from home (for instance those working in construction or manufacturing), are being 'actively encouraged to go to work'. However, people should avoid public transport if at all possible and it's crucial that employers remember that the physical, emotional and mental well-being of the workforce remains the key principle of managing any return to the workplace. Where the safety of employees cannot be guaranteed, employees should remain at home as much as possible. Employers must continue to communicate openly with employees and workers, to understand their concerns and perspectives. If it is not essential for work to happen in the workplace, then the default should remain for now to continue to work from home. The Government is due to release new guidance for employers to make workplaces COVID-secure and so employers should keep checking the government website for the latest information.
For many businesses the required social distancing measures 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. Clear and honest communication is key.
The options include:
- In line with the latest Government advice, working from home is the first option to consider. 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 arrangement 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.
- Possible later bonuses or time off for those who continue to work although this would need to be handled carefully if some have been furloughed.
- 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.
Q: I’ve heard about short-time working and lay-offs? What are they and should I implement them?
Lay-offs and short-time working are relatively rarely used legal provisions 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.
Q: Most of our workforce are able to work from home, but we have a handful of staff who cannot. It doesn’t seem fair that some staff would be paid (as they are able to work from home) while others wouldn’t because of their job role.
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.
DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.
If you have other queries about COVID-19 not covered above, please contact the CIPD member employment law helpline on 03330 431 217 or visit the Community pages
We know that our members and customers are facing challenging times and we are here to help you. Due to a high number of calls we apologise that your wait time may be longer than usual. We appreciate your patience and will connect you to an expert adviser as soon as we can.
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