Coronavirus Employment Law Guidance For UK Businesses

Following last night’s announcement from the Government, imposing more stringent restrictions to contain the spread of the coronavirus, many employers are considering the impact on their business.

We have seen an increase in the number of queries we have been receiving from employers trying to understand the latest guidance and the options for their business.

Below, we have provided answers to some of the most frequently asked questions we have been receiving.

Coronavirus guidance for employers

What if we have to close our business down due to the restrictions?

On 20th March 2020, the Government introduced the Coronavirus Job Retention Scheme to financially support businesses in an attempt to avoid employers having to close down their businesses after the latest measures announced last night.

The Coronavirus Job Retention Scheme allows eligible employers to access financial support to continue paying part of their employees’ salary for those employers who might may have otherwise implemented redundancies, lay off, unpaid leave or other measures for their employees.

The scheme will enable businesses to recover 80% of wage costs for employees on ‘furlough leave’.

Furlough leave is an entirely new concept and is a new class of indefinite leave where the Government reimburses the employer for wage costs, which can be recovered up to £2,500 per month, per employee. There is no limit on the number of employees or the duration. Wage costs is expected to include wages, pension contributions and Employer NI contributions. Employers do not have to top up an employee’s pay to 100%. Some employers may wish to and some may not be able to but this just needs to be made clear to the employees concerned. We do recommend that you adopt a consistent approach.

Furlough leave is for anyone that would have otherwise been laid off or made redundant. It does not help with any situations where employees had agreed to reduce their hours or to a pay cut but where they are still required to work. There is currently no option to do a mixture of reduced hours and furlough leave.

Employees cannot elect to be a furloughed worker without their employer’s agreement. It is also important to note that all businesses are eligible to claim.

It seems that employees will be covered but not other workers (such as casual staff or contractors) or the self-employed.

The scheme is available for at least three months from 1st March 2020 and will be extended if necessary. Employers are urged by the Government to take back anyone they had already dismissed and convert them to this leave instead. Likewise with anyone who is on unpaid leave.

Otherwise, employers may still have the right to lay people off or reduce hours for a temporary period if their employment contracts contain ‘lay off’ or ‘short time’ working provisions. If you have these clauses, you may want to take advice on how to use them.

For employers without contracts that contain ‘lay off’ or ‘short time’ working provisions, you should seek to agree measures with your workforce which could include reducing hours, reducing pay, implementing unpaid leave, using annual leave entitlements and/or changing working patterns. Legally, consultation is usually required before such measures can be introduced, but employees may be more understanding in these circumstances and will want their employer’s business to survive.

Should we restrict our employees work travel?

Yes. Travel is limited to essential travel only.

Do employees need to provide a fit note if they are absent from work due to the coronavirus?

If your employees cannot work because they have been advised to self-isolate, either because they have symptoms or they live with someone who has symptoms, they can self-certify their sickness absence for the first seven days that they are absent from work.

After the first seven days, employees can now obtain an isolation note through a new designated website without having to see a GP.

What about employees with childcare responsibilities now that childcare and schools are temporarily closed for many children?

Our current understanding is that if an employee in this situation and their employer agree, they can use the furlough leave provisions to allow the employee concerned to take furlough leave and get paid for doing so. This may be clarified in the coming days, so please check back for further guidance.

Alternatively, employees are entitled to unpaid emergency leave for dependants, which would include dealing with childcare issues. Strictly speaking, this is time off to make alternative arrangements, not time off to actually care for the child/children. Anything else depends on what you, as the employer, want to agree.

An option here is to allow people to use their paid holiday entitlement, take unpaid leave or to flex their hours of work, if possible, so they can continue working around childcare commitments. We would encourage employers to begin discussing this issue with their employees now to agree ways of working to trial over the coming weeks.

Where employees are unable to work at all because of a lack of childcare and if furlough leave or unpaid leave cannot be agreed, they may have to consider resigning to bring their employment to an end. If they do so, they will not be entitled to a redundancy or termination payment other than accrued untaken holiday.

Technically, they should give you contractual notice of their resignation, but they may be unable to do so because of the situation. If they cannot work their notice, then you are not obliged to pay them for it. It will be a matter of discretion whether you offer any other payments.

What guidance should we be giving to our employees?

Following the further measures imposed by the Government, employees should be working from home, wherever possible. We recommend you update your home working policy – or implement one if you haven’t got one – to make sure employees know what is expected of them.

If you have staff working from home, you need to think about procedures for keeping in touch and how to use technology to communicate with them. You will also need to make sure they have the equipment they need for this.

If some or all the work you do can’t be done from home and your workplace is still in use, we would recommend putting posters up around the workplace (for example, in kitchen and toilet areas) about the virus, its symptoms and good hygiene to increase staff awareness. There are a number of posters available to download from the gov.uk and World Health Organisation websites.

You should check whether you have any staff in the ’at-risk’ categories – those over 70, pregnant women and those with certain serious health conditions – that have been advised to self-isolate for the immediate future. Many of these people will have already begun self-isolating. If people in these groups can work from home then they should, if they are well.

Other groups that may need to self-isolate for 14 days are those returning from high-risk destinations, and those experiencing symptoms or with someone in their household experiencing symptoms. If you have anyone in these groups that is not self-isolating, you should insist they do.

You should also check your eligibility to obtain the latest support measures that have been brought in by the Government, which are available here.

What if I need to let people go?

As explained, there are options to consider to reduce staff overheads before dismissals are necessary. However, if it becomes necessary, some principles to consider are:

• Any casual employees or those on genuine zero hours contracts are not guaranteed any work or pay and employers may stop offering them any hours.
• Employees with less than two years’ service are not entitled to redundancy payments so they can be dismissed with just their notice pay.
• Those with more than two years’ service are entitled to statutory redundancy payments, as well as their notice, if they are dismissed on grounds of redundancy.
• Employers also need to follow a fair procedure before implementing any redundancies.
• Where large numbers of employees are involved, there will be collective consultation requirements to consider too.
• Employers contemplating these actions should get legal advice on the processes and risks involved.

What if I think my business is going to fail?

If you are concerned about this, we recommend you take professional advice as soon as possible. There may be options open to you which, if taken sooner rather than later, can save your business. Business recovery specialists or Insolvency Practitioners will be able to help with this. You should also talk to your bank and any other lenders as soon as possible.

Where can I get more information?

Please use official websites to get more information as other sources might be out of date or unreliable. We would suggest you visit:

• Gov.uk
• Acas.org.uk
• As well as the Public Health England and NHS website for factual and up to date information.