There have been unprecedented impacts on employees’ rights during this coronavirus pandemic, including the right to health and safety and the right to be paid. Alex Monaco, Founder of Monaco Solicitors and the first ever Employee Rights Day, explains the key laws your business needs to be aware of…
What is the furlough scheme?
The Coronavirus Job Retention scheme, also known as furlough has been able to help employers whose business has been affected by COVID-19.
This scheme allows you, as the employer, to let employees stay at home, as the government will pay 80% of your employees’ salary up to £2,500 per month. These payments will continue until the end of August 2020, being reduced to 70% in September and 60% in October.
Whether employees will accept only a percentage of their wage or 100% (with no upper limit) is something that you should have agreed with your employees in advance. You can’t just put employees on the scheme without their agreement, although, you could make them redundant if they don’t agree.
More detailed information on this can be found in our practical guide on the furlough scheme.
Self employed support
To summarise the scheme available to the self employed:
The deadline for the first grant available has now passed (13th July 2020)
The second grant available is worth 70% of your average monthly profits. Applications for this grant can be applied for from 17th August 2020 and is capped at £6,570.
For more detailed guidance, see our article here.
If an employee is vulnerable, or a danger to a vulnerable person, can they be forced to attend work?
Hopefully, if your employee is pregnant, old, or suffers from a disability or ill-health, you will already know about this and be receptive to proposals for them to work remotely where possible.
Forcing employees to attend work if they live with someone in any of the above categories could also be breaking the law.
The law in relation to the coronavirus is not yet entirely clear, however, we advise that you could be acting unlawfully in insisting that your employees attend work as it may be subjecting them to:
- Constructive dismissal or
- Discrimination relating to pregnancy, age or disability or
- Breach of health and safety law
If an employee is self-isolating and not coming into work, can they be dismissed?
No! You could enforce disciplinary action, but you can’t legally dismiss them. Any attempt to do so would amount to automatically unfair dismissal under s.100 Employment Rights Act 1996.
This kind of dismissal was seen in the case of Harvest Press Ltd v McCaffrey 1999 ILRL 778. Despite not directly relating to the coronavirus, this is a good example of automatically unfair dismissal.
Our more detailed guide on unfair dismissal during the coronavirus is available here.
Can employee salaries be reduced?
If you are justified in doing so, employees’ salary can be reduced. During the coronavirus, we have seen many employers telling employees to take a pay cut. This can be easily justified if other people are also being asked to take a pay cut.
You could simply hand employees their notice and another contract of employment with a reduced salary. You could then insist that if they don’t agree to work the new contract, their employment will end when their notice period is over.
Should you pay employees whilst self-isolating?
If employees have symptoms or have been advised to self-isolate by a doctor or other medical authority, they are legally entitled to Statutory Sick Pay (SSP). Isolation notes can be obtained online on the NHS 111 website.
If your employees are self-isolating despite not showing any symptoms, the current legislation does not entitle them to SSP.
The current legislation again does not entitle employees to SSP if they are vulnerable, for example, old or with underlying health conditions. Again, we would advise that employees get an isolation note online on the NHS 111 website mentioned above, which would entitle them to SSP.
You have to conduct a risk assessment if an employee is pregnant. Where it is unsafe for them to attend work, you must suspend the employee on full pay. At that point, if within 6 weeks of their due date, they will be entitled to start their maternity leave as per the legislation here.
If it is possible to work remotely and you agree to let them do so, then employees will be entitled to their usual pay.
Before taking any action, you should talk to your employees about any concerns they may have and try to agree on the best way forward.
This latest legislation is contained in The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020.
If employees are told to stay off work, are they entitled to pay?
If there is a good reason to ask employees not to attend work, for example, they have recently returned from a country badly affected by coronavirus, or had contact with someone with the virus, you can ask them to stay away.
If you close the workplace or reduce hours of work, then employees are entitled to pay as normal, without any reduction. You will be supported in doing this by the government furlough scheme (see above).
(See S151 Social Security, Contributions and Benefits Act 1992 and S147-154 Employment Rights Act 1996 for relevant legislation)
Employees wanting to take time off work to care for dependents
The government extended the Coronavirus Job Retention Scheme in April to those with childcare responsibilities due to coronavirus restrictions. This has to be agreed between you and your employee as furlough is not an automatic right, but this is great news for parents.
Automatic rights are set out in pre-existing legislation, Section Section 57A-57B Employment Rights Act 1996. This legislation provides that in an emergency, employees have a right to reasonable time off work to care for dependents. This applies where employees are dependents themselves are unwell or their usual school/carers/other providers can’t operate because of the COVID-19 restrictions.
Unless their employment contract or insurance policy provides for payment in these circumstances, this time off will be unpaid. A reasonable amount of time off depends on your employees’ circumstances, but you are required to consider your employees’ case regardless of the inconvenience or disruption their absence could cause the business.
Undoubtedly, the coronavirus does count as an emergency, and what is ‘reasonable’ is ongoing as long as the schools and nurseries are shut, at least.
Will employees be entitled to sick leave and pay entitlements if they get coronavirus?
Employees will be entitled to sick leave and entitlements as with any other sickness if they have been diagnosed with coronavirus or are suspected by medical authorities as having it.
(See S151 Social Security Contributions and Benefits Act 1992)
Redundancies due to COVID-19
Where making over 20 employees redundant, you usually have to consult for a period of 90 days.
However, coronavirus could constitute ‘special circumstances’ which would compress this period, so that you probably wouldn’t have to consult for the full 90 days. Consulting for a reasonable time is probably still necessary, but what is reasonable is not clear. If however, you don’t consult, then it would be procedurally unfair dismissal.
The duty to consult is not defined in statute if less than 20 people are being made redundant. However, this duty generally includes more than one meeting and an opportunity for your employees to make some reasonable input into the decision.
If employees have been laid off because of COVID-19 but want to leave their job, can they choose redundancy?
Employees can write to you to ask for statutory redundancy payment and their notice pay if they have been laid off for 4 weeks in a row, or for 6 weeks in a 13 week period. If you don’t reply, employees have to give their notice as per their notice period (the longer period of either their contract or statutory notice period) and they can resign. This will give them a claim for statutory redundancy pay.
