July 6, 2020
After many months of unprecedented restriction on business as well as our general way of life, it is a relief to see the gradual relaxation of the UK’s lockdown measures. Over the last few weeks, shops have sprung back into life, while this weekend has seen the partial relaunch of our pub and restaurant scene as well as other areas of the hospitality sector. We certainly have no shame in admitting our delight at finally being able to get ourselves to a proper hairdresser!
But as restrictions are eased, it is crucial that employers stay up to date with the regular changes to government guidance as well as ensuring they are aware of the potential legal issues they will face over the coming weeks as their businesses restart or they begin to reopen their offices. With the Job Retention Scheme slowly winding down, many businesses will also be left with tough choices with some being forced to restructure and deal with the unfortunate but inevitable redundancies this will result in.
We have been advising many clients in respect of these issues over the past few weeks and it is clear that there are certain questions that are repeatedly being asked of us. We therefore thought it would be helpful to collate our answers to these questions and these are set out in the FAQs below.
Many questions at this time will of course be fact specific and require bespoke advice but hopefully the general guidance below will prove useful. We would of course be happy to provide more specific advice at any time so please do reach out to any of the listed contacts if you need further help.
Furlough Leave Arrangements
How can furlough leave arrangements be brought to an end?
This will depend on the terms of your furlough arrangement. Assuming that your furlough letter gives you the ability to end the furlough leave on a date of your choosing, you should simply need to inform the individual (ideally in writing) that their furlough leave is ending and that you expect them to return to work by a particular date. You may also want to consider whether any new contractual changes are required to an individual’s contract after they return.
Further contractual considerations will be required if the furlough agreement did not address how the furlough leave would end or if you intend to terminate the employment or engagement rather than bringing the individual back to work.
Can we continue to use the furlough scheme?
Yes, the Job Retention Scheme is set to continue until 31 October 2020. Provided that the relevant individuals have been furloughed for at least 3 weeks prior to 30 June 2020, you can continue to furlough them and you can do so on a flexible basis, as is explained in more detail in our briefing note of 16 June 2020.
However, from 1 August 2020 you will be required to contribute towards the furlough pay being received by your workers and you can find out more details about the level of contributions required in our briefing note of 2 June 2020.
Can you make someone on furlough leave redundant?
Yes, the Job Retention Scheme guidance is clear that employers do not have to bring furloughed workers back to work. However, you should take care to ensure that any dismissals comply with contractual and statutory requirements. For employees with at least 2 years’ service, this will mean following a fair redundancy process and the payment of a statutory redundancy payment.
Care should also be taken when selecting individuals for redundancy, particularly when some staff are furloughed and others are not. It may be prudent in some situations to consider whether it would be fair to delay redundancy decisions until a later date if the individual in question could be (or remain) furloughed prior to their dismissal.
In what circumstances is Statutory Sick Pay (“SSP”) payable?
SSP is a payment of £95.85 per week which is payable for up to 28 weeks to employees or eligible individuals who are paid via PAYE.
Eligible individuals will usually be entitled to receive SSP if they are unable to work due to illness for four or more days. However, the SSP legislation has recently been updated in light of COVID-19. This means that for COVID-19 related sickness absences, SSP will be payable from day one of absence and individuals will be deemed to be unable to work if they need to self-isolate because they:
- are suffering from Covid-19;
- have COVID-19 symptoms (i.e. a new continuous cough, a high temperature or a loss of, or change in, their normal sense of taste or smell);
- live (or are in an extended household*) with someone who is suffering from COVID-19 or who starts displaying the symptoms; or
- are shielding for the period specified in a shielding notification sent to or in respect of them or until such time as they are sent a further notification advising them that they are no longer required to shield (if earlier); and/or
- have been told to isolate further to the Government’s ‘Test and Trace’ initiative.
*NB this only applies to households in Scotland and Wales.
SSP generally cannot be reclaimed from the Government but small companies which had a PAYE payroll scheme on or before 28 February 2020 and which had fewer than 250 employees on 28 February 2020 will be able to reclaim SSP paid in respect of the first 14 days of any COVID-19 related sickness absence.
Returning to Work
All businesses will need to carry out a thorough COVID-19 risk assessment prior to their staff returning to the workplace. Staff should be consulted in respect of this risk assessment and employers with more than 50 employees are expected to publish it on their website.
We would expect the risk assessment to identify the measures the business will be taking to minimise the risks of COVID-19 and it is likely that in many cases additional policies will need to be implemented to ensure these measures are adhered to. This may include health monitoring policies (e.g. covering temperature checks and health declarations), policies on quarantining and policies on staggered working times.
Given the likelihood of potential sickness absence over the coming weeks, it would also be advisable for businesses to review their sickness absence policy or introduce one if there isn’t one already in place.
Will I need to get consent in order to take staff temperatures or to ask them about COVID-19 symptoms?
No. Data protection legislation requires that, if you process personal data, you must have a lawful basis for each purpose. Consent is one such lawful basis but it is not the only lawful basis and is often not applicable.
The most applicable lawful basis that businesses are likely to rely on is that the processing is in the legitimate interests of the company. This lawful basis is only applicable where such interests do not prejudice the rights, freedoms and interests of the individual in question. Given the challenges that COVID-19 presents to many industries, it is likely to be in the legitimate interests of the business to collect staff temperatures and issue COVID-19 questionnaires and this will not prejudice the interests of the individual.
Of course, this will only be true where the temperature is being collected for the purpose of ensuring that staff (and their families) are being protected from contracting COVID-19.
What if someone refuses to let us take their temperature or refuses to respond to any questionnaire?
This is unfortunately not straightforward. If the individual was not obviously exhibiting any COVID-19 symptoms, they wouldn’t be entitled to SSP (if eligible) (see above) so if you sent them home it is possible you may need to pay them full pay. You could consider not paying them on the basis that they have refused to comply with a reasonable management instruction. However, such measures could lead to an employment dispute with the particular individual.
As a first step, we would therefore recommend that you talk to the individual to understand why they are not willing to have their temperature taken / complete a questionnaire and to see if you are able to address their concerns. Further advice may then be required at that stage depending on their response.
What can we do if an individual refuses to return to work?
Under government guidance, all individuals other than extremely vulnerable individuals are able to attend work if they cannot work from home. You should therefore firstly consider whether there is a need for the individual to attend work or whether they can carry out their work from home.
Assuming that the individual cannot work from home, we would recommend that you seek to understand why they are unwilling to return and whether there is anything you can do which would make them feel comfortable to do so.
You cannot force an individual to attend work so, if you aren’t able to reach agreement, the issue comes down to whether you will continue their employment or engagement and, if so, whether you will pay them. Furloughing may also be an option, provided that they have already been furloughed prior to 30 June 2020 and they meet the other eligibility requirements.
If the individual is unwilling to return because of concerns about their health and safety and their employment status is that of “worker” or “employee”, care should be taken to mitigate the risk of employment disputes arising.
You should also bear in mind that certain vulnerable individuals may be regarded as having a disability and be protected from discrimination under the Equality Act 2020. It would therefore be advisable to seek specific legal advice in such circumstances.
How should we deal with individuals who have protected characteristics?
If individuals have a protected characteristic (e.g. they are disabled, within a certain age bracket or pregnant), they will be protected from discrimination on the grounds of that characteristic. You will therefore need to ensure that any measures you take do not discriminate against individuals on the grounds of these characteristics.
For individuals with disabilities, you should also remember that you have a duty to make reasonable adjustments and this may include putting in place extra health and safety measures for those who may be at greater risk from coronavirus. Similarly, for pregnant individuals, you are required to carry out a risk assessment and any COVID-19 risks should be factored into this.
We would always recommend that you seek specific legal advice when dealing with any individual who has or may have a protected characteristic.
What should we do if an extremely vulnerable individual wants to come back to work?
We would advise that you recommend that the individual follows government guidance and remains at home for the time being.
If you were to allow the individual to return to work at this stage, you would be going against government guidance and exposing the individual to significant risk. It is therefore likely that you would be found to be in breach of health and safety legislation.
This is likely to change with effect from 1 August 2020 when the guidance is due to be relaxed so that extremely vulnerable individuals will no longer be advised to shield.
In the meantime, under the amended sick pay regulations, extremely vulnerable individuals are deemed to have an incapacity for SSP purposes. You may also wish to consider furloughing them, assuming that they are eligible.
Can we send someone home if we are worried they have COVID-19?
Yes, you can send an individual home. However, assuming they are fit to attend work under government guidance (e.g. they don’t have symptoms and aren’t required to self-isolate) and they are ready, willing and able to attend work, they should technically receive full pay for the time they spend at home unless their contract permits otherwise.
In some circumstances for individuals on short term contracts, it may therefore be more advisable to terminate their employment or engagement although care should be taken with this option, particularly with employees who have more than two years’ service or with individuals who have a protected characteristic.
What can we do if an individual doesn’t follow the measures we have put in place?
If you have put in place measures to help mitigate the risk of COVID-19 and these measures have been communicated to individuals, but an individual fails or refuses to comply with them, it is likely that you could legitimately terminate that individual’s employment or engagement.
If the individual is an employee with more than two years’ service, we would advise that you follow your internal disciplinary procedure before making any decision to dismiss and that you take legal advice in the event that you do wish to dismiss the individual.