ADVICE ON CORONAVIRUS FROM IDU
Date: April 09, 2020 by idu-net
– UPDATED 28 APRIL 2020 –
This is advice is intended to provide you with clarity and to help you make the best decisions about what you do during the “lockdown”. See here for the government’s strict measures: https://www.gov.uk/government/publications/full-guidance-on-staying-at-home-and-away-from-others
This is not an alternative to specific advice. If you are unclear about anything, or you are in disagreement with your employer, please contact us before taking any significant decisions. If this general advice does not cover your query, please contact us.
Should I be “self-isolating” or “shielding”?
In general, anyone who is not a “Key/Essential Worker” (see below) should be at home and practising social distancing wherever possible.
There is specific government advice if you suspect you are infected or if you live with someone who is suspected to be infected. The advice is to self-isolate. See here for that advice: https://www.nhs.uk/conditions/coronavirus-covid-19/self-isolation-advice/
If you are identified as a person specifically at risk of becoming seriously ill from Coronavirus, you may be advised to “shield”. See here for that advice: https://www.nhs.uk/conditions/coronavirus-covid-19/advice-for-people-at-high-risk/
Employers must respect this. Workers following advice to self-isolate should get sick pay. Anyone shielding should be placed on the Coronavirus Job Retention Scheme (see below). Please contact us for advice if this applies to you. Statutory Sick Pay (“SSP”) is currently available from day 1 (rather than the usual day 4) of sickness absence. As normal, you can self-certify for the first 7 days. For sickness absence beyond 7 days, rather than seeing your GP, a fitness certificate can be obtained online here: https://www.111.nhs.uk/covid-19
Testing for the Coronavirus
This is currently available for a number of priority groups, which are:
- Social care workers and residents in care homes (with or without symptoms)
- NHS workers and patients without symptoms where there is a clinical need, in line with NHS England guidance
- All essential workers including NHS and social care workers with symptoms
- Anyone over 65 with symptoms
- Anyone with symptoms whose work cannot be done from home (for example, construction workers, shop workers, emergency plumbers and delivery drivers)
- Anyone with symptoms living with those described above
We will also test anyone who has symptoms of coronavirus that lives with those identified above.
See here for more information: https://www.gov.uk/guidance/coronavirus-covid-19-getting-tested#who-can-be-tested
Note, at present, the tests only detect a current infection, not whether you have had the infection and subsequently recovered. There are broadly two ways to get a test: via your employer or as a direct individual request. See here for how to arrange a test: https://www.gov.uk/guidance/coronavirus-covid-19-getting-tested#arrange-a-test
Can your employer force you to go to work?
The default position for everyone is that you should stay at home. You should only leave the home to exercise, for a medical appointment or to shop (if visiting a shop is necessary). Unless you are an Essential/Key Worker, this means, in general, people should not be going to work in person.
At present, there is no law directly preventing your employer asking you to come to work. The question – like any instruction from an employer regardless of Coronavirus – is whether the instruction is a reasonable one. If the instruction is not reasonable, then the employer risks constructively dismissing you. We certainly do not advise members to immediately resign if asked to attend work. Rather, if you are unhappy at being asked to attend work, contact us for specific advice.
When might it be reasonable to ask you to attend work?
If travelling to work and/or being at work means you cannot keep 2 metres from other people at all times, then, unless you are an Essential/Key Worker, it is difficult to imagine how it could be reasonable. If your job can be done in some way from home, then this should be what happens.
Every situation is different and we urge you to get in touch for specific advice if you are unsure.
Worried about personal protective equipment (“PPE”)?
Employers have a responsibility to provide a safe working environment for you. This is a right all workers have, including Essential/Key Workers. If you are concerned about the provision in your workplace, please contact us for advice.
Will I be paid if I cannot do my job?
All – but only – those paid through PAYE on or before 19 March 2020 are expected to be covered by a new government fund called the Coronavirus Job Retention Scheme (“the Scheme”), if the employer decides to use it in your case. This includes agency workers. The Scheme will give your employer enough money to pay you 80% of your normal pay (up to a maximum of £2,500 per month gross), thereby keeping you on the payroll. Your employer could (but does not have to) pay you the difference. The Scheme is expected to run until 30 June 2020, though it may be extended further.
The purpose of the Scheme is to avoid redundancies, lay-offs, short-time working and unpaid leave. The aim is that anyone made redundant, laid-off or on unpaid leave due to the Coronavirus will benefit from the Scheme, if those measures were taken on or after 28 February 2020. Employers are encouraged to effectively reverse those original decisions and follow the guidance for accessing the Scheme.
The Scheme is for when your employer decides not to use you and places you on “furlough”, which is the new kind of leave designed for access to the Scheme. This may be because the government measures have affected all or some of the business, or because the employee needs to stay at home because of shielding advice. Anyone advised to shield (or living with a person advised to shield) can be furloughed. Your employer can decide if they will or will not furlough you.
A public sector employer can furlough in the same way. If they do furlough you, they will either pay you from existing public funds or the Scheme.
In our view, a responsible employer should seriously consider placing any non-Essential/Key Worker on furlough, if home-working is not possible.
You cannot be asked to do any work by an employer who has placed you on furlough. The minimum period of furlough is 3 continuous weeks. If your employer expects you to carry out any work, this will end the furlough. A worker can be placed on furlough multiple times, provided each period is at least 3 weeks long.
Steps to take for the Scheme:
- Your employer should write to you to formally place you on furlough
- If your employer is not paying the deficit in your salary, they require your agreement to pay you less (note that the alternative may be redundancy)
- You stay at home, not doing any work for your employer until the furlough ends
- Your employer applies to HMRC to access the funds, which are now available
- You are paid in the normal way
See here for further relevant information:
When sufficient notice is given, provided you are not on another kind of leave, it is always the case that an employer can determine when annual leave is taken. An employer may legitimately decide to allocate annual leave to workers as a means of managing the situation according to the needs of the business. If you believe your employer is acting unreasonably in how they are allocating annual leave, get in touch for advice.
If you had a holiday booked but can no longer go, your employer can (but does not have to) agree to cancel that planned leave so that you can take it later in the year.
If you are sick or advised to self-isolate, you should be on sick leave. If this coincides with your planned annual leave, your employer cannot insist that you use your annual leave at this time. Note that you can choose to be on annual leave if this is a better financial option than sick leave. This principle also applies in ordinary circumstances.
If you are on furlough, it is still not clear whether an employer can force you to take annual leave at the same time. What is clear is employees are permitted to take annual leave, which may be appropriate if it means you are paid more than 80% of your salary.
Our view is that a similar approach to sick leave should be applied to furlough (i.e. you cannot be forced – but can agree – to take annual leave when on furlough). Please contact us if you are being forced to take annual leave. A practical solution may be to ask that your disagreement be noted and to revisit the issue once the furlough period ends.
Likewise, there is still a lack of absolute clarity on the amount that should be paid in respect of annual leave taken during furlough. We are aware of some employers paying this at 80% of normal pay (i.e. the same as the amount paid during furlough). We disagree with this approach and it seems this practice is inconsistent with the Government’s guidance. Please contact us if you are concerned that you are being underpaid in respect of your annual leave during furlough.
Finally, even if an employer is permitted to force staff to take annual leave during furlough, they must still exercise this right reasonably. We take the view that it is plainly unreasonable for an employer to use furlough as an opportunity to absorb all your annual leave for the year. Please let us know if this is happening.
Redundancy, Lay-offs, Short-Time Working and Unpaid Leave
In summary, employers require a contractual right to lay you off and the legal requirements for a fair redundancy still apply. We fully expect that the Scheme will be used instead of these measures. Where this is not the case, please contact us for specific advice.
Maternity, Paternity and Shared Parental Leave
Statutory pay for these schemes is unaffected. Enhanced-contractual pay is treated like regular pay and can be protected under the Scheme, if you are furloughed when on any of these kinds of leave.
If you suffer a reduction in income, you may be entitled to Universal Credit. Members are advised to see here for eligibility: https://www.gov.uk/universal-credit/eligibility
Who is an “Essential Worker” or “Key Worker”?
The government recognises that there are some jobs that cannot be done from home and are essential. If you fall into these categories, it is important that you do go to work, provided that you are fit and you do not have reason to think you are infected. There is now free Coronavirus testing to all Essential/Key Workers (see: https://www.gov.uk/government/news/coronavirus-testing-extended-to-all-essential-workers-in-england-who-have-symptoms). Schools are providing childcare services to the children of those working in the following sectors (these descriptions are pasted from the government’s advice published on 19 March 2020):
Health and social care
This includes but is not limited to doctors, nurses, midwives, paramedics, social workers, care workers, and other frontline health and social care staff including volunteers; the support and specialist staff required to maintain the UK’s health and social care sector; those working as part of the health and social care supply chain, including producers and distributers of medicines and medical and personal protective equipment.
Education and childcare
This includes childcare, support and teaching staff, social workers and those specialist education professionals who must remain active during the COVID-19 response to deliver this approach.
Key public services
This includes those essential to the running of the justice system, religious staff, charities and workers delivering key frontline services, those responsible for the management of the deceased, and journalists and broadcasters who are providing public service broadcasting.
Local and national government
This only includes those administrative occupations essential to the effective delivery of the COVID-19 response, or delivering essential public services, such as the payment of benefits, including in government agencies and arms length bodies.
Food and other necessary goods
This includes those involved in food production, processing, distribution, sale and delivery, as well as those essential to the provision of other key goods (for example hygienic and veterinary medicines).
Public safety and national security
This includes police and support staff, Ministry of Defence civilians, contractor and armed forces personnel (those critical to the delivery of key defence and national security outputs and essential to the response to the COVID-19 pandemic), fire and rescue service employees (including support staff), National Crime Agency staff, those maintaining border security, prison and probation staff and other national security roles, including those overseas.
This includes those who will keep the air, water, road and rail passenger and freight transport modes operating during the COVID-19 response, including those working on transport systems through which supply chains pass.
Utilities, communication and financial services
This includes staff needed for essential financial services provision (including but not limited to workers in banks, building societies and financial market infrastructure), the oil, gas, electricity and water sectors (including sewerage), information technology and data infrastructure sector and primary industry supplies to continue during the COVID-19 response, as well as key staff working in the civil nuclear, chemicals, telecommunications (including but not limited to network operations, field engineering, call centre staff, IT and data infrastructure, 999 and 111 critical services), postal services and delivery, payments providers and waste disposal sectors.
If workers think they fall within the critical categories above, they should confirm with their employer that, based on their business continuity arrangements, their specific role is necessary for the continuation of this essential public service.