Coronavirus & Employment Law – For Employees | Howells Solicitors

Coronavirus & Employment Law – For Employees

There is lots of information online regarding your rights during the Coronavirus outbreak, many of it is hearsay and gossip. Clare Fowler and Danny Smith, from our Employment Law department, answer some frequently asked questions in regards to your rights at work.

Advice based on general principles of employment law, common sense and government guidance here https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/guidance-for-employers-and-businesses-on-coronavirus-covid-19

Advice updated 30.03.2020

Can my employer stop me using my holiday allowance during the Coronavirus outbreak?

Employers have a legal obligation to allow their employees to take their holidays during the year. However, they also have the legal right to refuse requests for holiday due to business reasons (as long as they are not preventing the employee to take their holiday completely). Therefore, it is possible to decline holidays and to refuse them for a period of time. For example, it is common in the hospitality industry to have a “holiday ban” during key trading times of the year i.e Christmas. This is likely to be found in the staff handbook or the annual leave policy.

The Government has recently announced an amendment to the Working Time Regulations allowing employers to permit rolling over annual leave over the next two holiday years. I suspect this is due to the reasons as above i.e due to furlough etc it is unlikely that employees will be taking many holidays whilst the pandemic is ongoing.

I am aware that should my employer not afford to pay me then the Government will pay 80% of my wages. Is this true?

The Government has announced that those employees who would otherwise be laid off can, by agreement between them and their employer be placed on “furlough”. The Government will then pay up to 80% of your salary (with a cap of £2500 per month) rather than your employer. Your employer may decide to top-up the additional 20%.

Your employer will require your agreement to place you on furlough. The risk is, that if you do not agree then your employer may commence the redundancy process.

I am due to start a new job next week.  I’ve now been told they don’t want me due to the current restrictions.  Should they “furlough” me?

We are not currently aware of any guidance on this point.  You are not on your new employer’s payroll yet.  Clearly they could allow you to “start” and immediately place you on furlough, but there is no way of compelling them to do this.  If you are leaving/have left another job to start this new one you could consider speaking to your current/former employer to see if they would extend your notice period and place you on furlough whilst the scheme is in operation.  However, the scheme applies to “employees who would otherwise have been laid off” – if you had already handed in your notice this probably would not include you.  You cannot unilaterally retract your notice once it’s been accepted.

You won’t have the right to claim unfair dismissal from your new employer.  You could argue for notice pay.  You could also make the point that having gone through the recruitment process and selected you it would save them time and cost in future to keep you on their books.  Essentially you are reliant on the goodwill of either your current, former or new employer in this situation.

My employer terminated my employment before the “furlough” provisions were announced.  Should they take me back?

You cannot force your employer to take you back in this situation – but it is certainly worth asking them if they will, because based on the (limited) information currently available about the furlough scheme where employers can claim 80% of an employee’s salary from the government if the alternative is redundancy, it should be cost neutral to the employer.

The scheme applies to “employees who would otherwise have been laid off” which would include you.  If an informal request does not work, you could lodge an appeal against your dismissal.  You request may be more likely to be granted if you have more than two years’ employment with the employer as you are then protected from unfair dismissal.  It would be possible to argue in an unfair dismissal claim that the employer should have changed its decision on appeal based on new information (the furlough scheme) coming to light.

Of course your employer may have other concerns, for example that even after current restrictions are lifted and the furlough scheme ends, it will still take time for things to get back to normal – it may therefore be able to argue a genuine redundancy situation on that basis.  This may apply particularly in the travel sector.

Will I be paid if I self-isolate due to symptoms of coronavirus?

If you  have symptoms and are too ill to work, you should make your employer aware of this and rest, staying in isolation according to guidance.  You should be paid as you usually would be for sickness absence, as you are ill.  This may be contractual sick pay or statutory sick pay only.  If the latter, you should receive it from day 1 of your sickness, since the “waiting days” requirement has been removed for Covid-19 cases.  You do not need a sick note for your first 7 days absence . The government is asking employers to relax requirements for sick notes after that, but if your employer insists you get one, you should be able to get one online or via NHS 111 .

You should NOT attend your GP surgery to get a sick note.  If you would normally be required to report your sickness absence every day, you should check with your employer whether this is still a requirement.  If you have any difficulty reporting your absence, you should keep a record of what you have done – take a screenshot of the “log” of your phone call on your phone, or of the text or other social media message you send.  Keep a paper diary of who you tried to call, when, and the outcome (e.g. phone engaged, left a message etc).

If you have agreed with your employer that you can work at home and you are well enough to work even with symptoms and able to do as much work as you usually would then you should continue to be paid for that work.  It would be a good idea to keep a note (like a diary) of what you are doing in case this is ever queried.

If there is a limited amount of work you can do from home  and you are well enough to work even with symptoms it may be possible to negotiate with your employer for a temporary reduction in hours or pay.  You may be able to maintain your usual pay by using up TOIL you have accrued, or taking paid holiday.  However this needs to be agreed with your employer.

If you are not able to work from home because of the nature of your job, not the fact you are ill, then you are not available for work.  It is unlikely you have any contractual right to be paid in those circumstances, although some employers may be in a position to continue to pay at least in the short term.  You will need to discuss this with your employer. Now the government has told everyone who can work from home to do so,  you may want to discuss “furlough” with your employer, which is the government’s job protection scheme and essentially an alternative to being laid off/made redundant.

If you are staying at home due to government advice – which particularly covers those with symptoms, those in vulnerable groups or living with someone in a vulnerable group, but appears to us actually to cover everyone at this stage – then if you are not “furloughed” (e.g. you cannot work from home and will need to return to work after a period of isolation) you should be eligible for SSP if you earn more than £118 per week even if you are not ill.  SSP is £94.25 per week.  If this is substantially less than you normally earn you should contact your landlord/mortgage provider, utility providers etc to discuss whether you can defer your usual payments.

Will I be paid if I self-isolate due to a member of my household having symptoms of coronavirus?

If you are well yourself and able to work, then if you can work from home and able to do as much work as you usually would then you should continue to be paid for that work.  It would be a good idea to keep a note (like a diary) of what you are doing in case this is ever queried.

If there is a limited amount of work you can do from home  and you are well enough to work it may be possible to negotiate with your employer for a temporary reduction in hours or pay.  You may be able to maintain your usual pay by using up TOIL you have accrued, or taking paid holiday.  However this needs to be agreed with your employer.

If you are not able to work from home because of the nature of your job, not the fact you are ill, then you are not available for work.  It is unlikely you have any contractual right to be paid in those circumstances, although some employers may be in a position to continue to pay at least in the short term.  You will need to discuss this with your employer. Now the government has told everyone who can work from home to do so,  you may want to discuss “furlough” with your employer, which is the government’s job protection scheme and essentially an alternative to being laid off/made redundant.

If you are staying at home due to government advice – which particularly covers those with symptoms, those in vulnerable groups or living with someone in a vulnerable group, but appears to us actually to cover everyone at this stage – then if you are not “furloughed” (e.g. you cannot work from home and will need to return to work after a period of isolation) you should be eligible for SSP if you earn more than £118 per week even if you are not ill.  SSP is £94.25 per week.  If this is substantially less than you normally earn you should contact your landlord/mortgage provider, utility providers etc to discuss whether you can defer your usual payments.

What if I am sick generally (non-coronavirus related)?

You should deal with this as you would with any sickness absence whether you are working at home or still going in to work – report it to your employer in the usual way following the usual requirements – e.g. calling in every day if necessary. If you have any difficulty reporting your absence, you should keep a record of what you have done – take a screenshot of the “log” of your phone call on your phone, or of the text or other social media message you send.  Keep a paper diary of who you tried to call, when, and the outcome (e.g. phone engaged, left a message etc).

It may be harder than usual to obtain a sick note from your GP, who will be extremely busy.  You should check whether your employer will relax its requirements (they don’t legally need one until you have been off for 7 days anyway).  If not you should try to obtain one by calling your GP surgery and making a phone appointment, or via NHS 111.

You should be paid as you normally would be for sickness absence.

If you are already in receipt of sick pay for a Covid-19 related reason (even though you are not ill yourself – e.g. you are in a vulnerable group or household), you should still let your employer know if you become ill for a different reason so they can maintain accurate records.

My employer has told me to take unpaid leave.  I can’t afford to. What should I do?

All business have access to the government’s “job retention scheme”.  This should cover 80% of your wages up to a maximum of £2,500 per month, and at present does not seem to be time limited.  Your employer can (but doesn’t have to) designate you a “furloughed worker” and you have to agree.  This would cover employees who would otherwise be laid off or made redundant.  You need to ask your employer why it is not intending to access this scheme.  This would appear to be a good alternative to unpaid leave and therefore if your employer won’t agree to “furlough” you then you are likely to have a legitimate grievance and a possible claim for constructive unfair dismissal.  Please contact us for further advice.

I am 28 weeks pregnant.  I was intending to start my maternity leave in 6 weeks.  My employer has asked me to start it early.  Do I have to agree, and will I still get Statutory Maternity Pay (SMP)?

Your employer cannot force you to start your maternity leave earlier than you have notified them that you intend to start, unless you are off work for a pregnancy-related illness in the 4 weeks before the week (Sunday to Saturday) that your baby is due.  The earliest your paid maternity leave can start is the 11th week before your baby is due. If your baby is born early, your leave starts the day after the birth.  Whether you agree to your employer’s request will therefore be a matter of common sense and personal choice depending on whether you are able to continue working from home and therefore being paid in full, or whether you are only going to be entitled to Statutory Sick Pay, which for many people will be less than Statutory Maternity Pay, particularly in the first 6 weeks of leave.

Entitlement to SMP is based on what you earn in the period up to the 15th week before your baby is due.  If you have earned enough (at least £118 per week) during that period you should still receive SMP from your employer even if they stop paying you or move you on to SSP now.  You can check your entitlement here:

https://www.gov.uk/pay-leave-for-parents

It’s possible you could argue you were medically suspended by your employer in which case you should receive full pay.  At this early stage it’s not clear what view an Employment Tribunal would take of that and it would probably seek to balance the interests of the employer and employee in this unusual situation.

A failure to pay SMP if you have qualified for it would be pregnancy discrimination and would give rise to several claims you could pursue in the Employment Tribunal.

Practically speaking, if your employer refuses to pay SMP you need to contact DWP regarding Maternity Allowance so you have some income.

https://www.gov.uk/maternity-allowance

Will I still accrue holidays if I am self-isolating and not working due to the virus?

Yes.  We are not currently aware of any provisions that would change this.  If you are an employee, unless your employment is terminated, you remain employed and would continue to accrue paid holidays.  For some employees (e.g. those on zero-hours contracts) or if you are a worker your holiday entitlement may change as it may be based on the actual hours you work.  You should as usual keep a careful record of the hours you work so you can ensure you agree with the amount of holiday your employer says you have accrued.

The Government has advised that I should work from home. Does this mean that I now have the right to work from home?

Unfortunately, even in the current circumstances, employees do not have the right to work from home unless agreed by the employer. However, this should not prevent you from asking to work from home. You may wish to explain how this would work in practice and what you would do in order to ensure that your work is carried out. Employers should place serious consideration to requests from staff to work from home. Working from home is a far better to the business than staff falling sick.  You should keep evidence of the work you are doing at home in case this is ever called into question.

I’m concerned that I may catch coronavirus. Do I have to come into work?

Unless you cannot work from home, government guidance suggests that you should avoid coming into work if at all possible.  If you can, arrange with your employer to work from home.   This may mean you carry out some tasks that would not normally be part of your job.  You should discuss with your employer whether (1) you can do all or part of your normal job or other tasks from home; (2) if not whether you can be placed on “furlough” – the government has made provision for this and if you and your employer can agree this the government will pay 80% of your wages up to £2,500 per month.  If your employer forces you to choose between coming into work against current government guidance or being dismissed, your dismissal may well be unfair.  Try to have as much communication with your employer as possible in writing (by email or text/social media messaging).  If this is not possible, make a note after each phone conversation including the date and time of the conversation and what was said, by whom.

What would happen if I am made redundant?

Despite the current circumstances, the normal rules about redundancy apply. Depending on the number of people potentially being made redundant, your employer may need to commence collective consultation and formulate fair selection criteria. Should you be selected for redundancy then you should be paid your contractual notice pay and statutory redundancy pay. Your redundancy pay will be tax free and you can calculate it here – https://www.gov.uk/calculate-your-redundancy-pay

What if I want to work from home but my employer says I can’t?

You need to discuss this with your employer and try to reach agreement.  They may have legitimate concerns about safety, insurance cover, data security and the amount of work available.  You should set out clearly what you think you could do, how you will do it, and why you think it will benefit the employer.  There is no legal right to force your employer to let you work from home rather than make you redundant or ask you to agree to furlough.

What if I don’t want to work from  home but my employer says I have to?

If you have legitimate concerns about working from home you need to raise these with your employer – these could relate to the equipment available to you, lack of workspace or privacy, or practical difficulties in doing your role.  Hopefully you will be able to reach agreement, if not you could consider raising a grievance.

What if my employer makes me redundant rather than placing me on “furlough”?

Based on current guidance this would appear to be a legitimate option, you cannot force your employer to put you on furlough.  But in testing whether or not a redundancy dismissal was fair, an Employment Tribunal would look at whether there was a “suitable alternative”.  Your employer would therefore have to be able to explain why government-funded furlough was not a suitable alternative to dismissal.

My employer has put some people on “furlough” but expects me to work from home, I think this is unfair, what can I do?

If you work from home for your normal hours either doing your normal duties or a variation on your normal role you have agreed with your employer, you should receive 100% of your normal pay.  It is up to your employer to decide to offer furlough.  Their position may change as the situation develops.  Your role may be necessary to keep the business in good shape for when current restrictions are lifted.  If you disagree with your employer’s decision or feel it has been made for the wrong reasons you should discuss it with your employer and if necessary raise a grievance.  For the moment the choice about whether to offer furlough or not appears to be the employers.  If your employer has given you a legitimate management instruction to work from home and can justify why that is needed, then if you refused they could have grounds for dismissing you for misconduct.

My employer has put some people on “furlough” but expects me to work from home.  I’m now ill and only getting paid statutory sick pay, not 80% of my pay, what can I do?

You can talk to your employer about the difficulty this will no doubt be causing you.  However, the legal position is that if you are not “furloughed” and get ill, then if you have no entitlement to company sick pay, you can’t force your employer to pay you more than SSP.  When you are well enough to return to work you should continue to receive 100% of your usual pay.

My employer has put me on “furlough” but is still asking me to do bits of work from home, what can I do?

The government guidance available to date specifically says that if you are on furlough you should not work for your employer.  So you can legitimately say that you are unable to carry out work even at their request.  If you are treated badly because of this it could give rise to potential claims and you should consider taking advice.

I’m a keyworker and my employer has asked me to work more hours. Do I have to do this and will I be paid?

If you are salaried paid then your contract of employment should state your usual hours of work. There may be a clause that states you are to work outside these hours. Depending on the wording of the clause, you may have to work outside of your normal hours and you may not be paid. However, it may be the case that your hours of work have substantially grown and in this case the wording of your contract could mean that your employer may not be able to force you to work. However, as a keyworker, the government has identified that your role is important and therefore you may feel that you happy to work additional hours for extra payment. Make sure you discuss this with your employer so you know what to expect when you receive your pay.

If you are hourly paid, then depending on the wording of your contract, your employer may be permitted to increase your hours and you should be paid.

In every case, the Working Time Regulations continue to apply and you are entitled to rest breaks. Furthermore, unless you have signed an “opt-out” there will be a limit, under law, of the hours that your employer can ask you to work.

Both Danny and Clare offer telephone appointments, and free 30 minute consultations for some matters.  If you would like to discuss your business with them you can email Howells to make an appointment at [email protected], visit our website or call us:

Sheffield0114 249 66 66

Barnsley0122 680 51 90

Rotherham0170 936 40 00

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