Coronavirus Update

Thank you once again to Beverley Sunderland from Crossland Solicitors on Milton Park, South Oxfordshire for keeping us fully informed and briefed on all the latest legal changes so promptly!

The Job Support Scheme announced on the 28th September

Running for six months from 1st November until 30 April 2021, employees who are working at least a third of their normal working hours due to such a decrease in demand will be paid for the hours worked by their employer, but for the hours not worked, the employer and the government will each pay a third of the employee’s wages. As such, at least 77% of the employee’s normal wages will be paid. This will be capped at £697.92 per month. If employees work for more than a third of their normal hours the JSS grant amount will be reduced as the unworked hours to which the grant can be claimed will be reduced. The Treasury has published a factsheet here;  https://www.gov.uk/government/publications/job-support-scheme

The main features of the scheme are as follows:

  • Employers using the JSS will also be able to claim the Job Retention Bonus Scheme of £1,000 per employee still in employment as at 31 January 2021 and earning at least £520 per month between 1 November 2020 and 31 January 2021.
  • All employers with a UK bank account and UK PAYE schemes can claim the grant. Neither the employer nor the employee needs to have previously used the CJRS. It is assumed but has not been confirmed that ‘employee’ has the same wide definition as the current CJRS.
  • Large businesses will have to meet a financial assessment test, so the scheme is only available to those whose turnover is lower now than before experiencing difficulties from COVID-19. There will be no financial assessment test for SMEs. The expectation is that large employers using the JSS will not be making capital distributions, such as dividend payments or share buybacks, whilst accessing the grant.
  • Employees must be on an employer’s PAYE payroll on or before 23 September 2020. This means a Real Time Information (RTI) submission notifying payment to that employee to HMRC must have been made on or before 23 September 2020.
  • For the first three months of the JSS the employee must work at least 33% of their usual hours. After 3 months, the government will consider whether to increase this minimum hours threshold.
  • Employees will be able to join and come off the scheme and do not have to be working the same pattern each month, but each short time working arrangement must cover a minimum period of 7 days.
  • Grant payments will be made in arrears, reimbursing the employer for the government’s contribution. The grant will not cover Class 1 employer NICs or pension contributions, although these contributions will remain payable by the employer.
  • ‘Usual wages’ calculations will follow a similar methodology as for the CJRS.
  • Employees who have previously been furloughed will have their underlying usual pay and/or hours used to calculate usual wages, not the amount they were paid whilst on furlough.
  • Employers cannot top up their employees’ wages above the two-thirds contribution to hours not worked at their own expense.
  • Employees cannot be made redundant or put on notice of redundancy during the period within which their employer is claiming the grant for that employee. This is an important difference from the CJRS.
  • Employers will be able to make a claim online from December 2020 on a monthly basis and grants will be payable in arrears after payment to the employee has been made and that payment has been reported to HMRC via an RTI return.
  • Employers must agree the new short-time working arrangements with their staff, make any changes to the employment contract by agreement (assuming they do not have a short term/lay off clause in their contract already), and notify the employee in writing. This agreement must be made available to HMRC on request.

From 28 September 2020, people in England are required by law to self-isolate if they test positive or are contacted by NHS Test and Trace and employers must not allow them to attend work.

Anyone in England who tests positive for COVID-19 or has been told they have been in contact with someone who has, now has a legal duty to quarantine. Failure to do so is now punishable by fines (see below). The precise rules are contained in the Health Protection (Coronavirus Restrictions) (Self-Isolation) (England) Regulations 2020.

If someone or another member of their household has symptoms of COVID-19, they should, as now, isolate immediately. If someone receives a positive test result, they are now required by law to self-isolate for the period ending 10 days after displaying symptoms or after the date of the test, if they did not have symptoms. Other members of their household must self-isolate for the period ending 14 days after symptom onset, or after the date of the initial person’s positive test.

If someone is instructed to self-isolate by NHS Test and Trace, because they have had close contact with someone outside their household who has tested positive, they are legally required to self-isolate for the period notified by NHS Test and Trace. Both household and non-household contacts must self-isolate for the full period, regardless of whether they have symptoms and, if they develop symptoms and take a test, regardless of whether any test taken gives a negative result.

The regulations also impose sanctions on employers and the providers of agency workers. Workers are obliged to tell their employer/agency that they are required to self-isolate, and provide proof of the need to self isolate,  and where the employer/agency is aware of the requirement for their worker or agency worker to self-isolate, they must not knowingly allow the worker or self-isolating agency worker to attend any place other than the designated place where they are self-isolating (generally their home), for any purpose related to the worker’s or self-isolating agency worker’s employment.

If the worker cannot work from home then, pursuant to existing legislation, they are entitled to SSP for this period. Those on low incomes who cannot work because they have to self-isolate will be entitled to a £500 Test and Trace Support Payment, on top of any SSP or other benefits to which they are entitled.

Penalties for breaching these requirements are on a sliding scale, starting at £1,000 for the first offence and increasing to £10,000 for the fourth and subsequent ones.

It is also worth clarifying when a person who is self-isolating can only leave the house:

  • to seek medical assistance, where this is required urgently or on the advice of a registered medical practitioner, including to access services from dentists, opticians, audiologists, chiropodists, chiropractors, osteopaths and other medical or health practitioners, or services relating to mental health
  • to access veterinary services, where this is required urgently or on the advice of a veterinary surgeon
  • to fulfil a legal obligation, including attending court or satisfying bail conditions, or participating in legal proceedings
  • to avoid a risk of harm
  • to attend a funeral of a close family member
  • to obtain basic necessities such as food and medical supplies for those in the same household (including any pets or animals in the household) where it is not possible to obtain these provisions in any other manner
  • to access critical public services, including social services, and services provided to victims (such as victims of crime), and
  • to move to a different place where it becomes impracticable to remain at the address at which they are staying

Employees travelling abroad and needing to self isolate on their return

We consider the options open to employers for dealing with employees who’ve returned from countries not on the travel corridor scheme and who must self-isolate/quarantine for 14 days on return to the UK.

‘Travel corridors’, ‘transport corridors’, or ‘air bridges’ allow individuals to travel on certain routes to and from countries with low COVID-19 infection rates without the need quarantine when they return to the UK. I didn’t want to include a list, as no doubt by the time I publish this, the list will have changed!

While the quarantine/self-isolation rules apply to those returning from these countries not in the air bridges list. the government has said it will include other countries if flare ups of coronavirus necessitate such action.

It’s unlawful to break the self-isolation rules. Quarantining employees are not allowed to come to work and an employer cannot ask staff to come to work during self-isolation – so unless they can safely work from home they will be unable to work. A failure on the part of an employee to comply with an instruction to self-isolate (in England, Wales and Northern Ireland) could result in a fine of £1,000.

Do we have to pay staff who are self-isolating when they return from a holiday?

Unless the employee can work from home, doing their current role or an alternative, there is legally no requirement to pay them.

If the employee is returning from business travel they have been asked to go on and must self-isolate, it would be advisable to keep paying them – a constructive dismissal claim may result otherwise.

Employees who self-quarantine – and do not have coronavirus symptoms – are not entitled to statutory sick pay (SSP). Most company sick pay schemes are also unlikely to cover this scenario.

One option may be to relax holiday policies and allow such employees to take any remaining holiday (if they have any left) during the self-isolation period – even if they’re not able to give the usual notice. Alternatively, consider agreeing to a period of unpaid leave.

Another option may be to re-furlough the employee for a couple of weeks – provided they had previously been furloughed for at least three weeks before the rules changed on 1 July.

Special consideration should be given to those who have travelled abroad specifically to say goodbye to a close family member who is seriously ill or to safely celebrate a religious festival.

Can we stop an employee going abroad on holiday?

No but you can quite permissibly discourage them from travelling abroad by pointing out that, should they have to self-isolate/quarantine on their return, they will not be paid.

You can revoke pre-authorised leave by giving notice of the same number of days as the holiday the employee wanted to take (e.g. 10 days’ notice to cancel 10 days of leave). Of course, cancelling pre-booked holiday at short notice will inevitably have employee relations implications and a better approach may be to talk to the employee about changing their holiday plans to a UK-based holiday.

Note that an amendment to the Working Time Regulations allows employees to carry over holiday for the next two years if it has not been reasonably practicable to take it in the current holiday year due to the effects of coronavirus. However, the employee is still able to take holiday, just not able to go to their destination of choice and so this is unlikely to fall into the ‘not reasonably practicable’ category.

 

Can we dismiss someone if they cannot work because of having to quarantine/self-isolate?

There is no specific protection from being dismissed in such circumstances.

However, employees with two years’ service would more than likely succeed in a claim for unfair dismissal if the only reason they were dismissed is because the government changed the rules when they were abroad.

This is because you would not be able to show that an absence from the workplace for two weeks while complying with the law fell within one of the statutory ‘fair’ reasons for dismissal and even if it did, dismissal would not be within a band of reasonable responses. Given that dismissing an employee who is sent to prison for a short period is likely to be unfair, self-isolation for two weeks because an employee took a holiday is far less serious.

However, if an employee ignores a direct instruction and Foreign Office advice and travels to a country where they know they will have to self-isolate from on their return, then this may give rise to disciplinary action and failure to obey a lawful instruction is potential gross misconduct.

What to do:

Get a holiday policy in place which says that:

  • if employees go abroad, they do so at their own risk, and
  • if they have to quarantine/are unable to travel back and you cannot find work for them to do at home/remotely they will have to take holiday/unpaid leave
  • Consider getting evidence of holiday bookings from employees in advance as to where they are going/where they have been, to ensure they are not attempting to come back to work when they should be quarantining.
  • Remember that you have health and safety obligations and you should ensure that self-isolation rules are adhered to, to ensure you can protect others in the workplace.
  • Remember that not everyone travelling abroad will necessarily be doing so for a holiday – staff may be attending a religious festival or visiting a sick relative. In such cases, try to be understanding and supportive.
  • Encourage your staff to keep you in the picture at all times.