HR Support

Coronavirus – COVID-19 Questions and Answers

 

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: 1 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. 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 purely from income generated 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. The agency would be the employer, responsible for the PAYE of the worker, and as such would be able to reclaim the 80% from HMRC. It is recommended that you contact the agency to discuss the situation regarding any workers currently placed with you or with an a placement agreed. Given the agency is likely to be able to recover 80% of gross salary we would anticipate councils only having to top up the 20% where they would continue to pay full pay to a permanent employee in the same position.

 

 

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

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 28 February 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 28 February 2020.  If they were hired later, they are not eligible.  Anybody who was on the payroll on 28 Feb 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.

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

Under the current 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.

Can I ask for volunteers to work in an area they do not normally work in?
  • Last Reviewed: 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. 

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. 

Our employee is self-isolating because they have developed a new cough or have a fever. What should we pay them?
  • Last reviewed: 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.

Our employee is self-isolating following medical advice but are showing no symptoms. What should we pay them?
  • Last reviewed: 25 March 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.

Most of our office based staff are now working from home. What are our responsibilities regarding equipment and health and safety?
  • Last Reviewed: 1 April 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.

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/

 

 

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

Truely 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. If the assignment was due to last for at least three weeks you might consider using the furlough provisions announced by the Government. Please see the FAQ ‘What is the furlough provision? And Government Guidance’ for more information and guidance on public sector bodies making use of the furlough provisions.

One other area you should consider is where you regularly use the same casual worker. 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. 

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

A true Zero Hours contract gives rises 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, they 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, then it would be reasonable to continue to do so. You should consider whether their skills and knowldge 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 do we do with our Agency Workers?
  • Last Reviewed: 1 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. Therefore, you would be expected to continue to pay them for the duration of the agreed assignment. However, as the agency is the employer, responsible for PAYE, they would be be able to claim under the furlough scheme. In these circumstances it would be expected that you agree with the agency that you will pay the 20% of the wage to top up to full pay.

 

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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