HR Support

Coronavirus – COVID-19 Questions and Answers

 

Please note that during the Covid-19 Crisis, given the importance of sharing updates, information and learning, SEE has taken the decision to make our COVID-19 FAQ page available to all councils in the region. 

 

The following questions and answers are based on the questions that our Employment Team are responding to on a daily basis. If you have a question not covered below, please email us.

 

Can Local Government make use of the Furlough provisions announced by the Government?
  • Last Reviewed: 13 May 2020
  • Last Updated: 20 April 2020
  • Published: 25 March 2020

While Public Sector organisation can access the furlough provisions, the Government has issued clear guidance that it does not expect Public Sector Employers to make use of these provisions where they are continuing to receive their normal public funding to cover salary costs.

Please see the Government Guidance on the application of the furlough provisions:

https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme

It is assumed that even where a council operates a ‘commercial venture’, such as a leisure centre or theatre, the salaries for those working in these facilities are funded through public funding rather than the income generated by those facilities. There are four questions an employer should ask themselves when considering whether using the furlough provisions is appropriate. The questions are:

  1. Can the potentially redundant/laid off employees be reasonably and practicably re-deployed into jobs that are funded?
  2. Does the money which supports or largely supports, the employment costs derive from non-public sector sources eg grants, income etc
  3. Has the money disappeared altogether, or has it significantly reduced?
  4. Would the employees be then subject to a potential redundancy process or be laid-off?

If the answers to the above are no, yes, yes, and yes, then furloughing the employees under the JRS may be possible. But the authority will have to carry the costs of the employees and await a retrospective decision on whether the government will fund 80% of the costs up to a maximum salary of £2500 per month. Authorities would have a separate choice as to whether they would pay 100% of salary/wage but be able to recover 80% but Local Government employers are strongly encouraged to top up to 100% of normal pay and should have a robust argument as to why full pay was not paid.

Those councils considering the use of the furlough provisions would need to be able to produce clear evidence that the council funded any posts that are to be furloughed wholly or mainly from other sources of income with no recourse to the public purse.

At present we have no information about how HMRC will ensure the furlough provisions are applied correctly. However, given the expressed expectation that public sector bodies would not ordinarily make a claim under these provisions, it is likely that HMRC will closely scrutinise any applications for reimbursement from public sector employers.

Where employees are unable to carry out their normal duties, public sector employers should consider redeploying them into critical roles, with appropriate training. You should also consider where future staff shortages may occur and put in place plans to retrain and redeploy for future demands. However ultimately, it is not the employee’s fault that they are unable to work. So where you apply Green Book Terms and Conditions, you should continue to pay these employees their normal rate of pay.

Agency workers: assuming the agency worker could not successfully claim that they were in fact an employee of the end user, the council would not be the employer and would not be able to access the HMRC reimbursement. Please refer to our FAQ regarding Agency Workers and Cabinet Office Guidance Notes.

 

 

What is the Furlough Provision? And Government Guidance.
  • Last Reviewed: 13 May 2020
  • Last Updated: 13 May 2020
  • Published: 27 March 2020

 

Extension of Job Retention Scheme

It has been announced that the Job Retention Scheme would be extended in its current form until 31 July 2020. Between August 202 and October 2020 the scheme will continue to operate but with some changes. Details of these changes are not yet available but are likely to include some ‘weaning off’ provisions in terms of percentage of pay recoverable. There has been a commitment to enable some part time working while being furloughed for the rest of their ‘normal working week’.

HMRC Clarification on Furlough Scheme Requirements

We have been given permission by HMRC to publish this letter.

 The author of the letter works within the office of Jim Harra, HMRC Chief Executive and First Permanent Secretary, and is speaking on his behalf.

 It deals with the seeming discrepancy between paragraph 6.7 of the Treasury Direction, which requires employees to agree to cease all work in writing, and the HMRC Guidance, which states that written agreement from the employee is not necessary (see my earlier bulletin here).

HMRC has now stated that employers should follow the Guidance (and that they will treat applications for reimbursement under the Furlough Scheme in accordance with the Guidance).  The crucial paragraph from the letter is this:-

”…the employer and the employee must reach an agreement and an auditable written record of this agreement must be retained. It does not necessarily follow that the employee will have provided written confirmation that such an agreement was reached in all cases.”

Whilst one might fairly take issue with whether that squares perfectly with the wording of the Direction, it a helpful, clear and unequivocal statement from HMRC that they will not deny an employer the ability to reclaim funds simply on the basis the employer had not obtained written agreement from the employee to cease all work for the employer.

 

What is the Furlough Scheme?

The Furlough provisions were announced by the Government as part of the Coronavirus Job Retention Scheme. It allows employers to retain their workforce rather than lay them off during this time of crisis. Employees whose job has disappeared as a result of the COVID-19 outbreak and would ordinarily be made redundant or laid off, can be designated as a furloughed employee. This means that they keep their job. The Government will reimburse 80% of the salary costs, up to a maximum of £2,500 per month, per employee. The employer will not be required, by Government, to maintain the employee’s full pay, but contractual obligations would need to be agreed through a variation to contract.

On 27 March 2020, the Government issues further guidance on the scheme. It is unclear whether HMRC intends to rely on this guidance only, or whether there will be actual legislation.

The full guidance is here.  You need to read the full guidance but below is a very brief summary provided by Daniel Barnett, Barrister – Outer Temple Chambers:

These are the key points, some of which had not previously been announced:-

  • the scheme is open to all UK employers that had a PAYE scheme in place on 19 March 2020
  • any organisation with employees can apply, including charities, recruitment agencies and public authorities; however, the government does not expect public sector employers to use it as long as central government continues funding wage costs in the normal way.  With agency employees, the scheme is only available for agency employees who are not working.
  • employers can reclaim up to 80% of wage costs up to a cap of £2,500 per month, plus help with the associated employer NICs and minimum autoenrolment pension contributions on that wage.  Fees, commissions and bonuses are not included.
  • an employer can choose to top up to 100%, but does not have to (subject to employment law and renegotiating any contractual entitlements)
  • for employees whose pay varies, the employer can claim for the higher of (i) the same month’s earning from the previous year (eg earnings from March 2019); or (ii) average monthly earnings in the 2019-20 tax year
  • individuals are only entitled to the minimum wage for the hours they work.  So if they are furloughed and do not work, and 80% of their normal earnings would take them below the minimum wage based on their normal working hours, they still only receive 80% as they are not working.  However, they are entitled to be paid NMW for any time spent training.
  • to be eligible, the employee must have been on the payroll on 19 March 2020.  If they were hired later, they are not eligible.  Anybody who was on the payroll on 19 March and has since been made redundant can be rehired and put on the scheme
  • furlough leave must be taken in minimum blocks of three weeks to be eligible for funding
  • there is nothing in the guidance which prohibits rotating furlough leave amongst employees, provided each employee is off for a period of at least three weeks
  • the employee must not be working at all.  If they work for even an hour (presumably during their entire three week furlough period), they are not eligible.  However, they are able to undertake training and do volunteer work, provided they do not provide services to or make any money for their employer.
  • when agreeing changes in hours (and acceptance of 80% pay), assuming the contract does not already allow for that, normal employment law applies.  The employer must be careful not to discriminate in deciding who to offer furlough too.  My view is that prioritising vulnerable workers is unlikely to be discrimination, as prioritising the over 70s (direct age discrim against those under 70) is almost certainly justifiable, and those who do not suffer from serious health conditions are not a protected class.
  • employees on sickpay or self-isolating cannot be furloughed, but can be furloughed afterwards.  Employees who are shielding can be placed on furlough.
  • employees on maternity (or similar) leave can continue to draw SMP (or similar) payments.  The guidance does not prohibit women on maternity leave agreeing to return to work early and then being furloughed, or electing to change to shared parental leave and then being furloughed.
  • employers can only claim once every three weeks, ie they cannot get weekly reimbursement.  Claims can be backdated to 1 March 2020.

The government will issue further guidance on the mechanics of claiming the payment in due course.  It says it expects the scheme will be up and runnning by the end of April.

On 8 April 2020, the Government announced that the Job Retention Scheme will have an online portal open to receive applications from 20 April 2020 with the first payments expected to be made by the end of this month.  Chief Exec of HMRC, Jim Harra, informed the Treasury Committee of the opening dates and that 5,500 staff were ready to process applications.  Early indication are that the demand for the scheme from the private sector was likely to be three times that expected when the scheme was originally announced.

On 15 April 2020, the Treasury issued directions to HMRC with regard to implementing the Job Retention Scheme. One of the key changes was to the date that a person needed to be on PAYE for them to be furloughed. This moved from 28 February to 19 March 2020 and the content above has been amended to reflect this. The full direction is available here. The major changes are summarised below taken from an email from Daniel Barnett, Barrister – Outer Temple Chambers:

  • employees who were employed on 19 March 2020 (previously 28 February 2020) are eligible for furlough, provided the employer had submitted real time information payroll data by that date  (paras 3.2 and 5(a))
  • the Scheme is not limited to those employees who would otherwise be made redundant.  It is applies to any who are furloughed “by reason of circumstances as a result of coronavirus or coronavirus disease” (para 6.1(c)).
  • a director who is furloughed can only undertake work to fulfil a duty or other obligation arising from an Act of Parliament relating to the filing of company’s accounts or provision of other information relating to the administration of the director’s company (para 6.6).  This is a very narrow interpretation of directors’ duties.
  • to claim furlough, the employer and employee must have agreed in writing that the employee will cease all work (para 6.7).  This is significant; the guidance only required notification.  The Direction from the Treasury requires written agreementThis may mean that many employees who have already been furloughed may not fall within the meaning of the Scheme.
  • the amount of salary for the employee must disregard anything which is not “regular salary or wages”.  That includes disregarding any performance related bonus or discretionary payments (including tips), any conditional payments (eg where a threshhold must be met) and any non-financial benefits (paras 7.3 – 7.5).
  • the employer cannot claim for any salary which is “conditional on any matter” (para 7.4(b)).  This may exclude any salary payments which the parties have agreed are conditional on the Job Retention Scheme paying out.
  • the employer can claim for earnings which it “reasonably expects to be paid” to the employee (para 8.1(a)) – that seems to include deferred earnings, deferred until the Scheme pays out (provided they are not conditional on the Scheme paying out).
  • the Direction is completely silent on annual leave.

Furlough & Sick Pay

On 15 April, HMRC updated its statutory payments manual to provide that employees do not qualify for SSP if they are on furlough.

On 16 April, the Government made the Statutory Sick Pay (General) (Coronavirus Amendment) (No. 3) Regulations 2020. They provide that a person is deemed to be incapable of work if they are unable to work because they fall within the extremely vulnerable category and have been advised to shield. The Regulations came into force on 16 April and, on first reading, it does not appear they have retrospective effect (unlike some of the other changes to SSP).

Furlough and Annual Leave

On 17 April, the Employees’ Guidance on the Furlough Provision was updated to indicate that it is possible for an employee to take annual leave while they are furloughed with the employer having to top pay up to full pay for the period of annual leave. The Employers’ Guide has not been updated with this information at this time. It is also not clear whether employers can require employees to take annual leave while they are furloughed.

Our employee has multiple roles with us, can we furlough them from one of these roles and not the other(s)?
  • Last Reviewed: 13 May 2020
  • Last Updated: 13 May 2020
  • Published: 29 April 2020

This issue is very unclear at present with some employers being advised by HMRC that they can furlough from one of multiple contracts, while others are being told they cannot. The current advice is to use the HMRC WebChat function and ask the question as it specifically relates to your workforce. Once you have received your advice and the chat is coming to an end, at the top of the chat box there should be an option to have the entire conversation emailed to yourself. If you can’t find it, ask the HMRC representative on the chat. Once you have emailed the chat to yourself, retain this as evidence of the advice you have received from HMRC. 

In the meantime, the following needs to be considered. Whether you can furlough an employee from one of their roles when they have more than one with the same employer comes down to how those roles are contracted.

If the employee has separate and distinct contracts for their different roles then furloughing from one role is possible. You will still need to provide auditable evidence that the funding for the salary is not from the public purse, and be able to demonstrate that you have considered redeploying to another part of the business and that the alternative to furloughing would be to make them redundant from that role.

If the employee undertakes each of their roles under the same contract, then you can not furlough from part of a role. Essentially the requirement is that the employee cannot carry out any work under the contract from which they are to be furloughed. As the employee will be continuing to work or the other part of the role is funded from the public purse and so cannot be furloughed, the employee cannot be furloughed at all. You can seek to negotiate a temporary variation to contract to reduce the pay of the employee by the amount that corresponds to the part of the role not being undertaken. However, if the employee does not agree to this variation, you will have to continue to pay full pay. As the Green Book provides that employers continue to pay full pay to those who are unable to work as a result of COVID-19, it would be difficult to argue that a dismissal with offer of immediate re-engagement was a fair dismissal.

Can I ask for volunteers to work in an area they do not normally work in?
  • Last Reviewed: 13 May 2020
  • Last Updated: 26 March 2020
  • Published: 19 March 2020

Yes, volunteers from existing employees whose contractual role/duties do not normally cover the work in question can be asked to carry out other roles, but those who volunteer should be provided with adequate basic training and information to enable them to carry out the task safely and effectively. If employees from other areas of the authority volunteer to cover essential service delivery areas they will still have to meet any basic requirements of the role, e.g. checks or qualifications; if these cannot be met, then the situation will have to be subject to a relevant risk assessment agreed by a senior manager. 

What should we be paying our Agency Workers? Does the Cabinet Office Guidance Note on Payments to Suppliers of Contingent Workers apply to us?
  • Last Reviewed: 13 May 2020
  • Last Updated: 20 April 2020
  • Published: 1 April 2020

In most cases an agency worker will not be an employee of the ‘end user’. However, this will depend on how long the agency worker has been placed with the end user and how the day to day management of the worker happens. The longer an agency worker has been placed with the end user the more likely they are to be considered an employee. Other things to consider are:

  • How does the worker book annual leave? Through the agency (worker) or via their nominated manager at the end user (employee)?
  • How are issues with performance dealt with? Nominated manager deals with it via the agency (worker) or direct with the worker (employee)?
  • How would a grievance from the worker be dealt with? Using end user grievance procedure (employee) or as a customer complaint (worker)?

Even if they are considered to be a worker, if they have worked for you for 12 weeks or more, they have accrued the right to equal pay when compared to your permanent employees (see below for more information).

We are aware that some agencies are contacting Local Authorities with regards to the Cabinet Office Guidance Note on Payments to Suppliers for Contingent Workers Impacted by COVID-19. While the Procurement Policy Notes that the guidance relates to apply to Local Authorities, the guidance notes are recommended practice rather than a requirement. Therefore, Local Authorities are not required to follow the detail set out in the guidance notes but should consider the underlying principles of ensuring the workers don’t suffer a detriment due to COVID-19 and that the agencies are supported to remain viable businesses throughout the crisis. When we come out the other side, we are likely to return to a position where we require these businesses and workers to be available again.

The PPN’s and Guidance notes do not give rise to a right for the agency to continue to be paid at the pre-COVID-19 rates if there is no contractual volume commitment within the contract with the agency i.e. the contract doesn’t state that the agency is required to provide 400 hours of manpower per month. In addition, agencies should not be making a profit from ‘undelivered’ work.

According to the Guidance Note where an agency had supplied, or agreed to supply, an agency worker to you for an agreed assignment which has been curtailed or prevented from starting by COVID-19, you should pay for that assignment and the agency should pay the worker accordingly. However, Agency workers who have been on assignment with the end user for 12 consecutive weeks have acquired the right to basic pay parity to those who are employed directly by the end user in a comparable job. Therefore, as you would likely be paying an employee who was unable to work from home during this crisis full pay, you should continue to pay the agency worker full pay. It is our view that the Guidance Notes would not apply in this situation, as the Guidance Notes are not a statutory provision, and you would continue to pay 100% of pay for the assignment.  If the worker does not have the 12 weeks service requirement, then you are not obliged to match what you would pay an employee in comparable circumstances. Therefore, you could opt to pay 80% of the agreed pay (subject to the £2,500 cap) for the assignment but this will be subject to negotiating this with the agency. Once the agreed assignment has come to its end, you are able to treat that as the end of the assignment and no longer pay the agency. If there was no end date to the assignment, then you will need to continue to pay the appropriate rate (100% if they qualify, or 80% if they don’t qualify and this has been negotiated) for the normal weekly hours for that agency worker for as long as you would reasonably expect the assignment to last. Please note that furloughing of agency workers with no end date to their assignment is likely to only be possible where the funding of the post is clearly identified as being from a source other than public funding.

If an agency worker is not able to fulfil their assignment in the original role but their skills and knowledge can be redeployed to another part of the business, such as front line services support, you should consider doing this in the first instance. Even if they aren’t needed immediately, as the crisis continues we anticipate staff shortages to increase in certain areas, so you may consider training these agency workers up to plug future gaps in your workforce. If this is not possible it will be up to the agency to consider any further options including supply to another end user or furloughing.

Agency workers are employees of the agency, not the end user. The agency runs PAYE for the worker and therefore, would be in a position to access the Governments Job Retention Scheme. Where the agency decides to furlough a worker who would have been on assignment with you, may have an obligation to top the pay of the worker up to full pay. You will still be expected to pay any statutory and contractual elements such as supplier margin fees. In return for you continuing to pay the agency for workers who were on agreed assignment, the agency will be expected to operate on an ‘open book’ basis, providing evidence that workers are being paid on time and the correct amount. It is worth noting that each application for furlough funding will be scrutinised and HMRC may decide that workers that should have been on assignment with public sector organisations should not be furloughed where the funding for the assignment is from the public purse. Where this is the case, the end user will be required to continue to fund the worker in full for the duration of the assignment.

If Agencies are facing cashflow issues there are funding sources, other than furlough, being made available to employers to ease any cashflow concerns and these should be explored by the agency

 

Do we have to re-engage someone who left our employment but they've been upable to take up their new job due to COVID-19? And if we do, can we furlough them?
  • Last Reviewed: 13 May 2020
  • Last Updated:16 April 2020
  • Published: 8 April 2020

 

Employers are not under any legal obligation to accept requests for re-engagement but it is strongly encouraged under the ethos of ‘keeping everyone in the position they were in before this crisis hit’ that the Government is encouraging. If you do decide to re-engage them you are strongly encouraged to consider whether that person can be put to good use when re-engaged either within the team they were in before leaving or by redeploying to an area where there are staff shortages now or provide training to upskill them for an area of likely future shortage.

If this is not possible, then it appears that this might be one of the situations that HMRC will accept as a suitable situation for a public sector body to be able to claim under the furlough provisions. However, the employee would need to have been employed by you on 19 March 2020 (previously 28 February), and you must have submitted Real Time Information Payroll data by that date for them to be eligible for the furlough provisions and you will be expected to have considered the redeployment option first. It is worth noting that, while Local Government is being encouraged to top up the furloughed pay to the full 100% of normal pay, there could be an argument made that as these people left, and have been re-engaged as a result of COVID-19 the LA will not top the pay up and so you could pay just the 80%.

A final aspect that councils must also be aware of is the pensions implications as they are bringing a person back into the scheme and will have to make pension contributions for that person which will not be recoverable through the furlough scheme.

Can we require an employee to take annual leave during the lockdown?
  • Last Reviewed: 13 May 2020
  • Last Updated: 29 April 2020
  • Published: 29 April 2020

 

Employers are legally able to issue notice to an employee that the employee is required to take leave on specified dates. The notice period must be twice as long as the period of leave you are requiring them to take.

However, care should be taken when considering exercising this right during the extenuating circumstances that COVID-19 has produced.

Those currently working in critical roles are probably working in teams where there is a level of absence, due to sickness and COVID-19 related issues, that means leave cannot be taken at this time. However, it is unreasonable to expect this group of workers to continue going indefinitely and there may come a point where there is a need for some to take a period of annual leave. At this point, you may require other employees to step up to enable this annual leave to be taken. You don’t want to be in a position where you have mandated that those not in critical roles have to take a period of leave each month as this could cause staffing level issues.

Where a person is at home but is unable to work from home, you can discuss this employee taking some leave during the period of lockdown. It would not be unreasonable to expect them to take a proportion of their leave entitlement for each month that they are at home and not working. However, care should be taken when using this approach. In the Local Government sector it is highly unusual to set out when our employees should take their leave so doing so now will feel very alien and may meet with resistance.

The most sensible approach is to remind line managers that they should be managing annual leave proactively in the same way they should always be managing it. If an employee hasn’t taken at least some of their leave by the end of June (the first quarter of the leave year for most) managers should be having conversations with the employees and reminding them that they should be taking some leave. Part of that conversation will undoubtedly be around the employee not being able to travel away for their period of leave and that they’d rather save the leave up for when travel restrictions are lessened/lifted. However, annual leave is a health and safety matter and employees should be reminded that part of the purpose of annual leave is to give them a break from work to allow themselves to recharge, in turn improving effectiveness and focus.

A note of caution relating to forcing employees to take annual leave during this crisis: for many, this crisis is a significant challenge for many different reasons. Health professionals and Education professionals are already seeing signs of trauma in adults and children alike. We all deal with pressure in different ways, and for some, work will be what keeps them going – gives them focus and purpose, and distinguishes their Monday from Saturday. In short, work is protecting their mental health right now. If an employee is reluctant to take leave, try to establish their reasons and work with them towards agreement to take some leave. Remind them of any support that may be available to them for example Employee Assistance Programmes, mental health charities or Mental Health First Aiders.

Carry forward of annual leave.

Most organisations currently limit the amount of annual leave that can be carried forward from one leave year to the next. This is normally the equivalent of a working week’s worth of leave for each employee. This goes above and beyond the statutory position which operates a ‘use it or lose it’ approach unless their are exceptional circumstances e.g. long term sickness. However, the Government have introduced a measure as a result of the COVID-19 pandemic that provides that for the current leave year and next leave year, there will be a statutory right to carry forward the four weeks of statutory leave. This right does not extend to the additional statutory leave entitlement of 1.6 weeks. This legislative change is a recognition of the fact that many workers will not be able to take their full leave entitlement due to workplace demands. Therefore, councils will be required to allow a higher level of leave to be carried forward at the end of the current leave year, and possibly the following leave year as well.

 

Our employee is self-isolating because they have developed a new cough or have a fever. What should we pay them?
  • Last reviewed: 13 May 2020
  • Last Updated: 25 March 2020
  • Published: 13 March 2020

As they are showing some symptoms associated with COVID-19, they should be treated as being sick and you should pay them in accordance with the sick pay scheme that you would normally apply. If they feel well enough and are able to work from home, don’t treat them as being off sick and continue to pay them as normal.

Note: SSP provisions for COVID-19 related absences provide that SSP is payable from day one of sickness absence related to COVID-19 rather than day four.

We have employees not in critical roles who can't work from home. Can we insist they come to work?
  • Last Reviewed: 13 May 2020
  • Last Updated: 13 May 2020
  • Published: 26 March 2020

 

From Monday, 11 May 2020 employees who were not able to work from home are being encouraged to return to work where there workplace is open and it is safe for them to do so. Those who can work from home should continue to do so and should not be asked to return to the workplace. If the workplace is not yet  open, then the situation that was in place prior to 10 May 2020 should continue until such time as the workplace is open.

Workers, who can’t work from home and whose workplaces are open, are being advise not to use public transport wherever possible and instead walk, cycle or drive to work. Where public transport is the only means of getting to a place of work, face coverings (not medical grade face masks) should be worn. This is not necessarily about protecting the wearer, but to prevent the spread of the virus from those who are asymptomatic but could pass the virus on.

Employers have a duty to undertake appropriate Risk Assessments and unsure as far as is reasonably practicable that social distancing and personal hygiene measures are put in place to protect employees before requesting that workers return to the work. This may mean that only certain desks can be used in the office, that teams need to be split into small groups who attend the workplace on a rota basis e.g. one week in, one week at home,. Cleaning of workplaces will have to be undertaken more regularly and more thoroughly. Key areas of risk will be toilets and kitchen facilities, which are traditionally high traffic, small space locations within the workplace.

Those that are clinically extremely vulnerable (shielding) will continue to need to stay at home even where they are unable to work at home. This is likely to be the case for some time and will almost certainly go beyond the initial 12 week period that was proposed towards the end of March.

Those that are clinically vulnerable but are unable to work from home should continue to be supported to stay at home as much as possible to avoid contact with people outside of their household.

Those who are not clinically vulnerable or clinically extremely vulnerable themselves, but live with someone in either of those categories: it has always been the case that these workers should be required to attend work, if they are in an essential role. As we move into the easing of restrictions those in non-essential roles that are not able to work from home can now be required to attend the workplace to carry out their work. In addition to the normal requirements around social distancing and good personal hygiene provisions in the workplace, employers should consider putting in place additional measures such as greater physical distancing e.g. 4m between desks/workspaces. Employers should also encourage workers to practice additional safety procedures at home, e.g. having a washable bag by the front door that means that the worker can remove clothing on entering the house, place it in the bag and then place that in the washing machine to be washed immediately, the worker should then wash thoroughly before dressing and interacting with other members of the household. There may be significant anxiety about returning to the workplace for these workers, which will impact on their mental wellbeing and health. Employers should communicate all health and safety measures clearly and discuss the employees fears and concerns openly and with compassion. As the concern is not necessarily about them getting sick themselves but about transferring something to their vulnerable or extremely vulnerable relative, the provision in the Employment Rights Act that permits an employee to refuse to attend a workplace where they believe there to be a real risk to their health doesn’t strictly apply.

In these early stages of easing of restrictions the level of anxiety and fear is likely to be high. However, where every reasonable step has been taken to provide a safe workplace for those who cannot work from home (and are not vulnerable or extremely vulnerable) to return to, then there is a reasonable expectation that workers will return to work. If a worker is refusing to do so, then the employer should explore the reasons and discuss alternatives such as annual leave or a period of unpaid leave.

Prior to Government Announcement, on 10 May 2020

Under the the lockdown anyone not in a critical role is encouraged to not travel to work. There are strong indications that employers who are insisting that their employees go to their place of work might be fined for doing so.

You can ask your employee to undertake some special projects – perhaps some of the ‘nice to do but not enough time’ things. These should still fit with the skills and knowledge of your employee.

You can seek to redeploy them into a critical role. Please see guidance under the question ‘Can we redeploy people?’

You can discuss taking some form of leave, e.g. annual leave or special leave, but you need to be mindful that this crisis will not go on forever and once restrictions on movement are lifted employees will still need to take leave later in the leave year. The Government are clear that people should not be penalised for following Government advice and so periods of unpaid leave will be frowned on.

Ultimately, if they are not able to work from home, or carry out alternative work, then you should continue to pay them full pay. After all, it is not their fault that their job can’t be done from home and they are being told to stay at home.

Our employee is self-isolating following medical advice but are showing no symptoms. What should we pay them?
  • Last reviewed: 13 May 2020
  • Last Updated: 20 April 2020
  • Published: 13 March 2020

If you apply the Green Book terms and conditions, you should pay them normal pay as they are self-isolating after most likely coming into contact with COVID-19 which is an infectious disease, now a notifiable disease. If they are able to work from home, it is not unreasonable to request that they do so.

If you don’t apply the Green Book and don’t have a clause covering contact with infectious diseases then the Government has passed emergency legislation that states that a person self-isolating following medical advice should be treated as being ‘unfit for work’ and is entitled to Statutory Sick Pay.

As of 24 March 2020, the legislation to make SSP payable from day 1, rather than day 4, has not yet been passed, but Chancellor Rishi Sunak said on 17 March that the Government is legislating on this matter and it will retrospectively apply to 13 March 2020.

Between 15 and 19 April 2020, the Government made two changes to SSP provisions:

  1. Employees who have been furloughed under the Government’s Coronavirus Job Retention Scheme are not entitled to receive SSP.
  2. The Statutory Sick Pay (General) (Coronavirus Amendment) (No. 3) Regulations 2020 were made. They provide that a person is deemed to be incapable of work if they are unable to work because they fall within the extremely vulnerable category and have been advised to shield. The Regulations came into force on 16 April and, on first reading, it does not appear they have retrospective effect (unlike some of the other changes to SSP).
Most of our office based staff are now working from home. What are our responsibilities regarding equipment and health and safety?
  • Last Reviewed: 13 May 2020
  • Last Updated:13 Mayl 2020
  • Published: 1 April 2020

 

For now, the fact that so many of your normally office based staff are working from home is a temporary measure. Therefore, you are not required to undertake a full workstation assessment for those working on computers. You should, however, encourage them to undertake an assessment of their own workstation at home so that they can take steps to protect themselves. Also encourage them to take regular rest breaks of 5 minutes every hours, get up and move about or stretch during these breaks and frequently change focal points, rather than just staring at the screen.

Where the employee normally has access to specialised DSE equipment, such as keyboard or mouse, they should be encouraged to take this home from the office where they don’t already have access to something similar at home. Larger items such as chairs and desks are likely to prove too challenging to relocate given the temporary nature of the current situation. Employees should be encouraged to make use of whatever they do have access to in order to create a safe and comfortable working environment.

The HSE has in place guidance for dealing with regular homeworking, occassional home working and it has issued guidance on temporary homeworking due to COVID-19. More information can be found under the 1 Apirl 2020 update of the LGA Circulars and Guidance page of our COVID-19 Resources section of the website.

https://seemp.co.uk/2020/02/12/coronavirusupdates/

Where the employee incurs additional costs for working from home during the COVID-19 crisis, the employer should assist with the payment of reasonable costs. It is unlikely that buildings and contents insurance policies will incur an additional charge if the work being carried out at home is purely administrative with no clients visiting your employee’s home. However, the employee may need to increase their Broadband capability to cope with the additional demand. The employee may incur additional telephone costs either on their landline or mobile phone. These should normally be reimbursed on the production of the bill. Alternatively, HMRC provides that employers can play their employees a tax free allowance of £6 per week (From April 2020) to cover expenses incurred through working at home without the production of bills or receipts. If the employer does not make these payments, the employer can claim tax relief directly from HMRC. For more information see the HMRC guidance: https://www.gov.uk/tax-relief-for-employees/working-at-home 

Managers are also responsible for keeping in contact with their team. This will help the manager allocate work and set targets for completion but it will also help each team member feel less isolated during this social distancing phase. Feelings of isolation can lead to increases in stress levels and depression. Managers need to make use of the contact they have with their team to ‘check in’ that they are ok and point employees in the direction of support such as your EAP or charities like Mind or The Samaritans.

What should we be doing about our Waste Management Workforce during the COVID-19 Crisis?
  • Last Reviewed: 1 April 2020
  • Published: 1 April 2020

Understandably, waste management workers have been identified as critical workers during this crisis. Those working in waste collection are at increased risk of contracting and spreading the virus due to the number of households they come into contact with. Careful consideration must be given to how to support social distancing for waste collection crews who ordinarily travel three to a cab, and to providing them with appropriate PPE – in this case tissues, and bags to dispose of used tissues, cleaning spray and cloths or wipes, hand sanitiser and access to hand washing facilities on return to depot.

Wherever possible employers should consider alternative ways of crews travelling to their rounds. This could be one member of the crew travels to the start of the collection using their own vehicle, and moves between collection routes that are geographically distant using their own car. Or one of the crew following the truck around in their own car throughout the round. Employers should compensate the crew member using an appropriate mileage rate but also pay any increase in insurance costs associated with changing existing policies to permit work travel, not just social and commuting.

The Waste Industry Safety and Health (WISH) Forum has issued guidance on a range of issues. This can be found on our LGA Circulars and Guidance page under 1 April 2020: https://seemp.co.uk/hr-support/hot-topics/coronavirus-qas/coronavirus-lga-updates/

 

 

Can we redeploy people?
  • Last reviewed: 26 March 2020
  • Published: 19 March 2020

Covid-19 means a change to your service demands and employee attendance levels. Therefore, managers will need to identify any critical areas that are likely to have a shortage of employees as the situation develops in line with the Business Continuity Plan. 

Employees are expected to be flexible to ensure that services can be maintained. The general principle is that the authority should make the best use of resources to support its communities and that resources should be prioritised towards critical services. Where necessary, employees who are suitably trained or skilled to carry out tasks can be asked temporarily to provide cover if the number of employees available for work who normally provide the service becomes too low. This might apply across sections/departments  as well, particularly for those employees who are not able to work in their own area if the service is suspended. In these exceptional circumstances the underlying principle is that if someone has an acceptable level of training or skills and knowledge to carry out the basic task, it should be reasonable to expect them to do it. The aim is to get the most out of the employees who are fit to work, which will mean employers obtaining flexibility from employees and key considerations in achieving that are: 

  • If you need to change an employee’s role or job location, the first thing to do is to check the contract to see if it contains a flexibility clause allowing you to make the changes 
  • Even if it does not have a flexibility clause, if in practice employees routinely change roles or place or work, there may be an implied term that you can change the employees’ roles and working location  
  • The authority should also make sure that the employee is sufficiently trained to carry out any new tasks/role and if they are working from home that the necessary risk assessments are in place 

However, the best way of obtaining flexibility is to get employees’ agreement to changes and, therefore ,the focus should be on reaching agreements on framework and protocols on staffing issues with local staff-side organisations. 

In all cases though, no employee should be pressurised to undertake other duties that they are unfamiliar with and that they do not have the basic skills or knowledge to complete the tasks required. 

What should we do with our Zero Hours Contract Employees?
  • Last Reviewed: 29 April 2020
  • Published: 1 April 2020

A true Zero Hours contract gives rise to permanent employment status, just with no guaranteed hours.  Therefore, the employee accrues the same benefits, including continuous service, as your permanent full time or part time workforce. This type of contract should not prohibit or prevent the employee taking up employment elsewhere.

On the basis that Zero Hours contracts provide for normal employment rights for those employed on such terms, you should treat these workers in the same way that you would any other permanent member of staff. This means that if you had agreed a piece of work to be completed, or had been discussing an assignment, then you should honour that assignment and pay the employee accordingly, even if they are unable to carry out the assignment due to COVID-19 restrictions.

Unless the Zero Hours Contract contains specific provisions disapplying the Green Book collective agreement, these employees will be entitled to occupational sick pay should they develop COVID-19 symptoms. They would also be entitled to normal pay if they were advised to self isolate due to contact with someone showing COVID-19 symptoms.

Where there was no agreed assignment then you would not normally be required to pay them. However, if a pattern of work can be established, such as they regularly work for 10 hours a month or there is a seasonal demand, then it would be reasonable to undertake a calculation to identify the expected level of pay and to pay this. You should consider whether their skills and knowledge could be used to support front line and critical services. There may not be a need for this redeployment initially but as more people become ill or have to self isolate, additional support may be needed. Please see our ‘Can we redeploy people?’ FAQ.

What should we do with our casual workers?
  • Last Reviewed: 29 April 2020
  • Published: 1 April 2020

 

Truly casual workers are only employees while they are actually carry out work for you and they don’t accrue continuous service when they are not working.

During the COVID-19 crisis if you had agreed a specific piece of work with a causal worker that can no longer be carried out, you would still need to pay them in line with the terms agreed for that piece of work. You should discuss the possibility of redeploying the worker to support critical functions including training them up to meet projected staff shortage demands. Once the agreed assignment has come to an end, you are no longer legally obliged to pay them. You should continue to offer them work if work is available and pay them accordingly. 

However, the Government intention is quite clear – nobody should suffer an unnecessary detriment due to COVID-19. This means that public sector employers are encouraged to review the working pattern of their casual workers over the preceding 12 months to establish whether there is a regularity of work that could be relied on to provide an income to the worker. If this is the case, public sector employers should calculate an average week’s pay and continue to pay the worker for the period during which, but for COVID-19, they would ordinarily have been working. So, if a casual worker could argue that they regularly undertake 10 hours per month for you, this could indicate sufficient regularity of engagement meaning that you should continue to pay them for those 10 hours per month even when they cannot carry out the work due to COVID-19 restrictions.

Seasonal Workers

Where a worker is only engaged for a specific period of the year, e.g. exam invigilators, they are unlikely to have worked regularly for you in the last 12 months. However, there will have been an expectation that they would work for you during the relevant season this year. Therefore, public sector employers are expected to pay seasonal workers who have worked for your organisation in previous seasons, who would have had an expectation to be recalled this year, an amount equivalent to the rate they could reasonably have expected to be paid for the assignment this year.

Can our employees cancel a period of booked annual leave?
Our employee had booked a period of leave to travel abroad but the holiday has now been cancelled. As we are nearing the end of the leave year, are they entitled to carry over more than the 5 days stipulated in our carry over policy?
  • Last reviewed: 30 March 2020
  • Published: 13 March 2020

Employers are being encouraged to take a reasonable, flexible and common sense approach to dealing with such issues as we face an unprecedented situation. It would be reasonable, given the extenuating circumstances that we are facing, to temporarily amend the carry over of leave policy to accommodate additional carry over. You can stipulate that additional carried over leave must be taken within the first three months of the new leave year but again a flexible approach to this might be required as we don’t know how long restrictions are going to be in place.

On 30 March 2020 it was announced that the Government would be introuducing legislation that altered the rules around carrying forward the statutory 4 weeks of leave originally derived from EU law. The Working Time (Coronavirus) (Amendment) Regulations 2020 (to be published soon) amend regulation 13 of the Working Time Regulations and will allow workers to carry over EU holiday into the next two leave years, where it is not reasonably practicable for them to take some, or all, of the holiday they are entitled to due to coronavirus.

The balance of 1.6 weeks’ statutory leave (derived from UK law) will not be affected but as it can currently be carried over for up to a year by agreement under existing law, employers will be expected to be flexible.

Our employee is worried about contracting COVID-19 and has informed us they don’t want to come into the office. What should we do?
  • Last reviewed: 25 March 2020
  • Published: 13 March 2020

Employers are being encouraged to take a reasonable approach and try to accommodate employee requests to work from home wherever possible. This is particularly important where your employee has an underlying medical condition or cares for someone who is in the ‘high risk’ category. However, an employee has no right to demand not to come into work unless there is a genuine cause for belief that the workplace is unsafe e.g. a colleague has contracted or is highly likely to have contracted the virus. If they refuse to attend work, then they have no legal right to be paid. You may wish to discuss with them alternatives, such as taking annual leave or a period of unpaid authorised absence.

From 16 March 2020 people in vulnerable groups, including those over 70, pregnant women, those with underlying medical conditions, were advised to self-isolate to protect themselves from contracting COVID-19. This means that anyone in the vulnerable groups should remain at home even if they are unable to conduct their work from home. You can still ask them to undertake alternative work that is suitable for their skills, knowledge and job level. But if they are unable to carry out any work from home you should discuss with them the options of taking annual leave (but they should not be required to use up all their leave as you need to be mindful of what happens when this crisis is over) or other forms of special leave. Ultimately, employers will have to accept that where it is not possible to work from home on any work the employer is still required to pay the employee their normal pay if you apply the Green Book. Even if you don’t apply the Green Book it has been made clear by the Government that they do not want anyone penalised for following the guidance of the Government.

From Tuesday 24 March 2020 additional restrictions were put in place which limits the movements of people in order to reduce the spread of COVID-19. Unless the employee is a critical worker, or can be redeployed into a critical role, then they should not be travelling to work. In these circumstances, if no work can be undertaken at home, the guidance is that once you have explored taking some (not all) annual leave or other forms of special leave, the employer should continue to pay full pay.

What do we do if an employee informs us that they need to self-isolate but we discover that there was no medical need for them to do so?
  • Last reviewed: 25 March 2020
  • Published: 13 March 2020

This is a disciplinary matter as the employee has essentially defrauded the organisation. However, given the everchanging advice on what to do regarding self-isolation, dismissal would most likely be deemed an unreasonable response but a warning would be appropriate.

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