The picture is changing regularly and, although we will be updating this information on a regular basis, we cannot guarantee that it will be precisely up to date. As such, this information is not a substitute for taking your own legal advice on your particular issue.
This document was updated on 1 May 2020.
A summary of our key recommendations are:
Employers will need to check all their existing contractual terms and policies in order to determine how best to use (and possibly adapt) those depending on their particular circumstances. In addition, you must consider key areas of law, from implied terms of contract (eg trust and confidence, the obligation on employees to follow reasonable instructions) to health and safety law, discrimination, unfair dismissal, redundancy and data protection. We deal with these areas in our guide below.
On 23 March 2020, the prime minister announced that all citizens of the UK should stay at home wherever possible. This guidance is contained here.
The guidance confirms that all employees should only travel to and from work where this is absolutely necessary. All employees who can work from home should do so. Workers who are unable to work from home can continue to travel to and from work.
The guidance also confirms which public facing businesses should close, and which are permitted to stay open. Offices are not included on this list. It is assumed that offices should stay open for only very limited purposes and where this is essential. Employees in offices should therefore not come to work and should follow the stay at home guidance wherever possible, working from home.
Those who cannot work from home and are not required for essential purposes could be placed on “furlough leave” (see below).
Information is provided on which essential public facing businesses and venues are permitted to stay open. Those which are entitled to stay open and whose employees are required to work, should follow social distancing guidance within the workplace as far as possible. The Government’s guidance for businesses which should close and those which are permitted to stay open is included here.
Additional “Q and A” advice has been published by the Cabinet Office regarding what individuals and employees can and cannot do, and is contained here.
The Government has published guidance to employers and businesses on what they should do to stay open safely during the crisis. This is contained here.
This contains a summary of advice for employers and businesses in England to follow to protect their workforce and customers, whilst continuing to trade. It includes social distancing, hygiene, cleanliness, staff sickness advice and staying at home advice.
The advice confirms that for those employees who are not able to work from home, and where their business is not required to shut in accordance with the above guidance, certain practices will be relevant to the majority of business settings, for example:
Additionally, for customer-facing businesses:
The Government has published sector specific guidance on social distancing in the workplace. This guidance is contained here.
The guidance contains a list of tailored advice for different scenarios as an example of how social distancing and other measures might be implemented by employers in England to help protect their workforce and customers from coronavirus while still continuing to trade. Separate advice is available for Wales, Scotland and Northern Ireland.
Those sectors covered are shops running pick-up and delivery services; tradespeople working in people’s homes; construction; manufacturing and processing; retail; logistics; outdoor businesses; farming; fishing and other short-term offshore work; cargo-shipping and long-term offshore work; transport services and waste management.
Those living alone with symptoms should still stay at home for seven days. For those living with others where either they or one of their cohabitees have symptoms, all household members must self-isolate for 14 days from when the first person became ill. Anyone in the household who starts to display symptoms must stay at home for seven days from when the symptoms appeared, regardless of which day they are on in the original 14 day isolation period. This guidance, and more detail as to when to end the isolation period, is set out here.
While the above is stated to be PHE “guidance”, employers have a statutory duty to protect the health and safety of their employees and others. We therefore advise employers to instruct their employees to adhere to this guidance.
There may be an express contractual right for an employer to enable this – for example, a suspension or garden leave clause. There are also implied duties on the employer to protect the health and safety of its workforce and for the employee to comply with reasonable instructions. In these circumstances, we believe both implied terms would apply to make it reasonable for an employer to require an employee to self-isolate in accordance with the PHE guidance.
Employers also need to be aware of this guidance as it will determine who is entitled to sick pay, or statutory sick pay (see below).
For particular roles it may be more justifiable to require an employee to self-isolate even where the guidance does not require them to do so. For example, if they have come into contact with someone who is known to have contracted the virus, but where they are not cohabitees. This is likely to be more justifiable if the employee works with groups who are more vulnerable such as the elderly or those with particular medical conditions.
Self-isolation is different from social distancing. The details on social distancing are set out above under “Should our employees work from home?”
An employee who has symptoms of the virus and is unable to work as a result, will be on sick leave and entitled to SSP as well as any company sick pay.
Where an employee has no symptoms, but is self-isolating in accordance with PHE advice, he or she will be eligible for SSP if unable to work from home. Such employees, however, arguably will not strictly be entitled to receive company sick pay (as they are not “sick”). Employers will have to consider whether to pay company sick pay in such circumstances – depending on the terms of the contract of employment and whether or not doing so would be likely to affect an employee’s decision to self-isolate in accordance with the guidance (with the effect of potentially endangering colleagues). Our advice would therefore be to generally pay company sick pay in such circumstances.
SSP is normally payable from the fourth day of absence. Under new rules SSP will be payable for the first three days as well.
Where neither of the above applies - for example an employee who is required by their employer to self-isolate because they have come into contact with someone who is known to have the virus, our suggestion would be to treat the absence as “special leave”. They should be paid as usual, whether or not they can work from home.
An employee who self-isolates without being on sick leave or is otherwise not required by the PHE guidance or their employer to do so, and cannot work from home whilst they are self-isolating, may themselves be absent without authorisation and may lose their right to pay. Employers in these circumstances should discuss the issue with the employee and seek to understand the reasons for their behaviour, particularly if they are noted as “vulnerable” in the PHE guidance (see below).
Where an employee has been unable to work for more than seven days because of coronavirus, they will need to provide evidence of illness to their employer. In aid of this, the Department of Health and Social Care announced the launch of an online service where employees can obtain isolation notes. Such notes will satisfy the aforementioned evidence requirement as they provide evidence that employees have been advised to self-isolate, by a medical professional, as they have symptoms of COVID-19 or someone they live with has such symptoms.
The isolation notes can be accessed via the 111 online service.
Following the stay at home guidance issued on 23 March 2020, many people will be working from home wherever possible. Those people who are not able to do so because of the type of work they do, or not required to do so, for example an employee working in a business which may stay open in accordance with the guidance or a keyworker (see below), may be more concerned, particularly if they are in a vulnerable group.
On 17 March 2020, PHE published “Guidance on social distancing for everyone in the UK and protecting older people and vulnerable adults”. This contains details of individuals who may be particularly vulnerable, including pregnant women.
Employers have a duty to protect the health and safety of their employees and need to seek to protect them from the risk of infection, particularly those who are in more vulnerable groups. The employer should therefore review this guidance and follow it as far as possible. In accordance with the guidance, employers will need to consider flexible work practices and strategies such as:
In addition, employers will be expected to follow and adhere to the guidance set out above under “What if our employees cannot work from home?”
Employees who are still at work and are known to be vulnerable should be contacted to discuss any concerns they may have, so that a risk assessment can be undertaken. The guidance states that those who are in vulnerable groups are “strongly advised” to follow the social distancing measures as much as possible. Others should be instructed to follow it as far as is practical and other appropriate measures put in place.
Pregnant employees have special protection under the management of Health and Safety at Work Regulations 1999. Current guidance from PHE states that it is not clear that the virus causes a particular risk to pregnant women. However, pregnant staff may well feel more vulnerable and should receive a sympathetic hearing and have a risk assessment carried out to assess their particular situation.
Employers have a duty under the Equality Act 2010 to make reasonable adjustments if the employee’s condition satisfies the definition of “disability”. Where the Act applies, employers will be under a duty to make reasonable adjustments which will include discussing the issue with the employee and allowing flexible working if reasonably possible. Each case will need to be considered on its own merits and the needs of the business balanced against the risk to the employee.
An employee from a vulnerable group may become very anxious about coming to work despite any adjustments that you can make. If they become ill as a result of such anxiety, they may go on sick leave in which case they will be entitled to sick pay.
Unless they or a member of their household is experiencing symptoms of coronavirus or otherwise on sick leave, vulnerable employees will not be entitled to SSP or company sick pay if they are unable to work from home and feel too concerned to come to work. The alternative for employers in relation to such employees is to continue to pay the employees full pay or to place them on furlough in appropriate circumstances. See our separate guidance on furlough leave.
Further guidance has been provided for those who are clinically extremely vulnerable (ie more than just “vulnerable” as referred to in the social distancing guidance above). The guidance is included here.
Those in the extremely vulnerable group will receive a letter from the Government strongly advising them to “shield” – stay at home and avoid contact with others for twelve weeks. Individuals in this group include those who have received organ donations or suffer from certain cancers.
It will therefore be very important for employers to be aware if any of their employees fall into this category, and they should not be at work other than working from home. The Government has extended SSP, which will now be payable to these extremely vulnerable individuals who are unable to work from home. However, it will also be possible to place such employees on furlough leave if working from home is not possible (see below). The later approach of placing such employees on furlough is likely therefore to be preferable, and would also avoid difficult issues around payment of contractual sick pay if the employee does not have symptoms and is unable to work from home for an elongated period. According to the Government guidance, furlough leave cannot start, however, for someone who is already on sick leave, until their right to SSP has been exhausted.
On Friday 20 March 2020, the Government announced that schools in the UK would be closed to all children except for vulnerable children and children with a parent identified as a key worker.
Key workers, broadly defined, are workers whose jobs are considered critical to the response to the pandemic.
The full list of “key workers” includes: frontline health workers such as nurses and doctors; some teachers and social workers; local and national government workers deemed crucial for delivering essential public services, workers involved in food production processing, distribution, sale and delivery; public safety workers who include police, armed forces personnel, prison staff and firefighters; essential air, water, rail and road transport workers; utilities, communication and financial services staff, including postal workers and waste disposal workers; and some legal practitioners.
Such workers will be able to access care for their children to enable them to continue working.
From the beginning of March, travel to many countries has been severely restricted or banned by those countries entirely. The Foreign & Commonwealth Office (FCO) has been updating its advice regularly, and on 17 March 2020 has advised against all non-essential travel worldwide. That advice is still in place.
In addition, in accordance with the stay at home advice, citizens have been advised not to travel within the UK to holiday homes because this is “non-essential travel”.
New travel bookings
It is clearly advisable to instruct employees not to make new travel bookings in accordance with this advice. The situation is extremely volatile and there is no way of knowing when travel will become easier.
Employees who have existing bookings should contact their insurers to see if they can get refunds and / or their travel agents / airlines to see if their arrangements can be substituted for later travel to other destinations. Their travel insurance may be invalidated if they do travel to countries where the FCO is advising against travel for anything other than “essential” reasons. They should check their insurance policies for the definition of “essential”.
On the basis of the FCO advice and an employer’s health and safety obligations (and the reasonable likelihood that their return travel and work will be disrupted), we believe it would be reasonable for employers to restrict employees from travelling in accordance with the FCO advice (apart from “essential” travel). With many countries restricting entry to their borders, it is likely to be very difficult to travel in any event.
Employers would not be obliged to reimburse employees for any expenses they cannot recover if they are unable to travel. On the basis that we believe that, in most cases, this will be a reasonable instruction, employees failing to comply could be liable to disciplinary action.
Any employees who believe they have “essential” reasons to travel to these areas will need to discuss this with you for you to consider the following:
Most contracts of employment will contain provisions regulating when and how employees can take their holiday. Such provisions are underpinned by the rules set out in the Working Time Regulations.
The Working Time Regulations (WTR) provide that an employer can require an employee not to take annual leave on particular days by giving the employee notice of at least the same length as the period of leave to be cancelled. However, an employer must not cancel a period of annual leave if it means that the employee is not able to take their full statutory annual leave entitlement in that leave year.
Cancelling leave may be an unpopular step with the employee. If an employer cancels a period of leave without a clear business reason, the employee could resign and bring a claim for constructive dismissal. The employee may be able to argue that the cancellation is a breach of the implied duty of mutual trust and confidence, entitling them to resign.
Employers should therefore cancel an employee's booked period of annual leave only in consultation with the employee and after considering all alternative options to ensure that the needs of the business are met. The employer could consider whether or not it would be appropriate to compensate the employee for any inconvenience.
It should be remembered that there is an obligation on an employer to ensure that their workers have an adequate opportunity to take their four weeks' statutory holiday granted by Regulation 13 of the WTR (this does not apply to the additional 1.6 weeks' holiday leave granted by Regulation 13A). This holiday cannot be replaced with a payment in lieu unless the worker is leaving employment.
However, the Government has amended the WTR to create an exemption relating specifically to Covid-19. Where it is not reasonably practicable for a worker to take some, or all, of the holiday to which they are entitled due to the coronavirus, they have a right to carry the four weeks under Regulation 13 into the next two leave years. This will not apply to the 1.6 weeks under Regulation 13A, but can be carried forward one year by agreement between workers and employers.
Similar to the above, an employer can require employees to take leave. This may be done in the current crisis to prevent, for example, a back-log of employees wanting to take time off at the same time when the crisis is over. The rules set out in the WTR or the contract will apply.
It will always be best for an employer to seek agreement with staff if it wishes to impose periods of leave that are not already anticipated in the contract or another workforce agreement.
Due to the potential data protection issues surrounding the disclosure of sensitive personal information (known as ‘special category data’ under the General Data Protection Regulation (GDPR)), we suggest the following:
If there is a real requirement to disclose the infected employee’s name to other employees, the company should be able to rely on its overriding duty under health and safety legislation to protect the health, safety and welfare at work of its staff as the legal basis for disclosing the information under the GDPR and Data Protection Act 2018 (DPA), provided it is clear about the reason for needing to disclose this information.
You should also be careful to keep the personal data that is shared to a minimum. Only disclose it on a strict need to know basis and consider whether you should carry out a data protection impact assessment. Ideally, an employee should be asked to agree to the disclosure of the information as a matter of courtesy but, if they refuse and it is essential to share it, it should be justifiable because of the overriding health and safety duties.
If you have any concerns about the risk of the infection having spread to other employees, you may wish to introduce temperature checks or require medical testing of your employees.
An employee cannot be physically forced to submit to a medical test but employers may have contractual requirements for medical testing which means that an employee who refuses to agree is in breach of contract. Employers should be careful to make any requests in a non-discriminatory way. For example, employees should not be singled out for medical tests on the basis of race or nationality as the coronavirus does not discriminate.
We consider that employees themselves have a duty to tell their employers if they are exhibiting symptoms and they should be instructed to do so.
As above, information about an individual's health will amount to ‘special category data’ under the GDPR and obtaining a medical report will amount to processing for the purposes of the GDPR. The employer should be able to rely on its overriding duty under the Health and Safety at Work Act 1974 (as amended and associated legislation) to protect the health, safety and welfare at work of its staff as the legal basis for processing the information in a medical report under the GDPR and the DPA 2018, provided the company is clear about the reason for processing this information.
Checking the temperatures of your employees may be a legitimate and reasonable management request as it is currently understood that one of the main symptoms of coronavirus is a high temperature. However, such a step should only be considered where necessary (and should not normally be required if employees are working from home). You will only be able to take someone’s temperature if they consent. If someone does not consent to the temperature check but is presenting with other symptoms of coronavirus, employers would have a duty under the Health and Safety at Work Act 1974 to protect the health, safety and welfare at work of their staff, as well as others who may be affected by the employer’s operations.
There is an argument that an employee who refuses to comply with a reasonable management instruction such as to remain at home when asked to or to seek medical advice where they are presenting with symptoms would breach their own duty to take care of their own health and safety as well as the health and safety of others who may be affected by their actions at work.
Practically, it is probably best to carry out temperature checks using an infrared handheld temperature gun as it does not need to touch the skin but can be directed at the person’s forehead. Although the temperature gun is not 100% accurate, it will be sufficient to identify a high temperature. Again, be careful to carry out any checks in a non-discriminatory way. If someone’s temperature is high, the person taking the temperature will need to be able to confirm next steps. These could be to ask the person to go home to self- isolate in accordance with the PHE guidance.
In accordance with the social distancing guidance, an employer should seek to find ways for employees to work from home or adhere to the guidance on social distancing at work if working from home is not possible (see above) . The employer should also check with the employee if they have a particular reason why they are concerned and act accordingly (eg if they are in a vulnerable group – see above).
This will depend on the contractual terms of the employees in question. Many contracts of employment will contain terms that provide for an element of flexibility in working hours or changes to shift patterns on a temporary basis to allow for natural fluctuations in demand. Where the requirements go over and above normal or regular fluctuations, staff would need to be consulted to determine who was able to work longer hours or change shift patterns and if any are unable to do so. Overtime pay or shift allowances may need to be paid in accordance with contractual terms.
Employers will need to consider the effect of the Working Time Regulations and seek to adhere to the requirements for daily and weekly rest periods.
Possibly. However, this depends on whether there is a right to do so in the employee’s contract. If an employer lays off an employee or puts them on short time working in the absence of an express or implied right to do so, the employer will be in fundamental breach of contract, entitling the employee to resign and claim constructive dismissal, breach of contract or unlawful deduction from wages. Employees placed on short time working or lay off for more than a temporary period will have the right to claim a redundancy payment and terminate their employment.
In the absence of a contractual right to lay off staff or put them on short time working, employers would be obliged to continue paying staff in accordance with their contract. However, the Government has confirmed that it will be introducing a means for employers to recover part of an employee’s wages if they remain employed and go on a period of “furlough leave” (see below).
Where flexible working options are not possible, and the employee is not placed on furlough leave, the employer will need to seek agreement with staff on unpaid leave or seek to require them to go on a period of paid leave, in accordance with contractual terms or the rules in the Working Time Regulations (which require a period of notice to be given).
This is a new concept that has been introduced by the Government to protect the jobs of individuals whose roles are affected by the virus outbreak.
See our comprehensive guidance on furlough leave here.
You would need to reassure all employees regarding the measures you are taking to keep them safe and follow all the social distancing guidance at work, reminding employees who are concerned about working with their colleagues of the current PHE guidance, their obligations to themselves and others regarding social distancing.
If concerned employees are part of a vulnerable group, you should discuss the issue with them and seek to make flexible adjustments on a reasonable basis, in line with the above advice.
Employees have the right to take time off to help with domestic emergencies. The closure of a school would fall within that entitlement. The employee should inform their employer as soon as reasonably practicable of their absence and how long they expect to be absent. It is the case that this type of leave is only anticipated to last for a few days and is unpaid.
Now that schools have closed, employers will need to deal with employees on a case by case basis – using a combination of unpaid leave, holiday leave, flexible working, home working, or furlough leave wherever possible.
Keeping a record of specific vulnerabilities constitutes the processing of special category personal data for data protection purposes. As the reason for processing the data will be to understand the employee’s potential increased risk of infection with the purpose of protecting their health and safety, it should be permissible under the GDPR and DPA 2018 provided the reasons for keeping it are clear and it is not retained for longer than necessary or shared more widely than is essential.
Where an employee needs to work from home, a health and safety risk assessment should be carried out. It should be possible for the employee to perform their own risk assessment provided the company has a method for recording the outcome of the risk assessment which is tailored to home-working and is accessible to employees working from home. Further guidance and template risk assessment forms can be found on the Health and Safety Executive’s website.
The Home Office has temporarily adjusted right to work checks in order to make it easier for employers to carry them out during the crisis.
The following temporary changes have been made:
Checks continue to be necessary and you must continue to consult the prescribed documents as previously.
Because of Covid-19, some individuals may be unable to evidence their right to work. During this period, employers must take extra care to ensure no-one is discriminated against as a job applicant or employee because they are unable to show their documents.
Details of the revised procedure are included here.
The Government does offer a coronavirus immigration helpline (0800 678 1767). Lines are open Monday to Friday from 9am to 5pm.
With regard to collective consultation, consultation takes place with “appropriate representatives”. There are no rules regarding how such consultation takes place and it can be in person, by telephone or in writing. As such, it should be possible to continue to consult effectively with appropriate representatives even where some may be absent because of illness or self-isolation.
With regard to individual consultation meetings for redundancy purposes, if the individual is on sick leave, the likelihood is that they are also too ill to attend a meeting remotely by telephone or video call. In that case, you should try to postpone the consultation until their period of sick leave has come to an end, until their fit note or isolation note expires if they have one, or until advised by a health professional that they can return to work.
If the individual is self-isolating but is otherwise fit to work, then consider carrying out the consultation remotely by telephone or video call. The format of the meeting should be the same as if the consultation were being conducted face to face.
If the individual is genuinely too ill to attend a disciplinary meeting in person then they are likely to be too ill to attend such a meeting remotely by telephone or video call. In that case, you should postpone the meeting until the person’s period of illness has come to an end, until their fit note expires if they have one, or until their health professional advises that they can return to work.
Alternatively, if the individual is working from home or self-isolating but is otherwise fit to work then you should consider carrying out the meeting remotely by telephone or video call. Ensure that the format of the meeting is the same as if the meeting were being conducted face to face.
Self-employed independent contractors are unable to benefit from the furlough leave scheme (above). The Government will be increasing Universal Credit standard allowance, for the next 12 months, by £1,000 per year. From 6 April the requirement of the minimum income floor will be temporarily relaxed to enable self-employed people affected by the economic impacts of coronavirus to claim Universal Credit, for example if they are required to stay at home or are ill as a result of coronavirus.
The Government has increased the Working Tax Credit basic element, for the next 12 months, by £1,000 per year.
All UK VAT registered businesses can defer VAT payments due between 20 March 2020 and 30 June 2020 until the end of the tax year. Additionally the Government has deferred the Income Tax Self-Assessment payments for the self-employed due on 31 July 2020 to 31 January 2021.
Lastly, all businesses and self-employed people in financial distress, and with outstanding tax liabilities, may be eligible to receive support with their tax affairs through HMRC’s Time To Pay service. These arrangements are agreed on a case-by-case basis and are tailored to individual circumstances and liabilities.
Finally, a “Self Employment Support Scheme” is being set up to assist certain self-employed individuals who have lost profits due to the virus outbreak. This will allow such individuals to claim a taxable grant worth 80% of their trading profits up to a maximum of £2,500 a month. It will be available for three months, but may be extended. Further details on the scheme are expected in mid-May.