Coronavirus Q&A

Our general Q&A was last updated on 13 May 2020 and covers the most regular questions our employment law team are being asked about Coronavirus.

It covers issues relating to self-isolation, sickness absence and pay, annual leave entitlement and contractual issues such as lay-off and rescinding offers of employment. Please also see our separate Q&A relating to the Coronavirus Job Retention Scheme.

1. What should we communicate to our employees to try to ensure less panic about the situation generally and their safety?

As always, good communication is key. It is difficult in these unprecedented times to provide reassurance, but it is important to refer employees to official sources of information and explain that businesses are following the current government advice.

If employees are returning to work following a period of absence or homeworking, it is advisable to communicate to them that risk assessments have been carried out and measures put in place to protect their health and safety whilst at work. Communicating the specific measures that have been put in place is likely to assist in allaying possible fears workers may have about returning to work.

https://www.gov.uk/government/topical-events/coronavirus-covid-19-uk-government-response is a good link to be aware of and to send to all employees. It covers all the current guidance, which changes on a regular basis.

Please also see:

Public Health England and BEIS:

https://www.gov.uk/coronavirus

https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19

https://www.gov.uk/government/publications/full-guidance-on-staying-at-home-and-away-from-others

https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance

https://www.gov.uk/guidance/social-distancing-in-the-workplace-during-coronavirus-covid-19-sector-guidance

https://www.gov.uk/government/publications/covid-19-guidance-on-social-distancing-and-for-vulnerable-people

https://www.gov.uk/government/publications/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19#how-do-these-measures-differ-from-the-social-distancing-guidance-for-vulnerable-people-issued

https://www.gov.uk/employers-sick-pay

https://www.gov.uk/government/publications/support-for-those-affected-by-covid-19

Acas:

https://www.acas.org.uk/coronavirus

https://www.acas.org.uk/working-from-home

World Health Organisation:

https://www.who.int/docs/default-source/coronaviruse/getting-workplace-ready-for-covid-19.pdf

NHS:

https://www.nhsinform.scot/illnesses-and-conditions/infections-and-poisoning/coronavirus-covid-19/coronavirus-covid-19-social-distancing

Business Support Site:

https://www.businesssupport.gov.uk/coronavirus/

2. What is the current guidance to the general public?

From 23 March 2020 the Government introduced three new measures, these are still applicable in Wales and Scotland, however, the guidance for England has changed as from Wednesday 13th May 2020. The measures continuing in place for Scotland and Wales are:

1. Stay at Home

  • Only go outside for food, health reasons or work (but only if you cannot work from home)
  • If you go out, stay 2 metres (6ft) away from other people at all times
  • Wash your hands as soon as you get home

Do not meet others, even friends or family. You can spread the virus even if you don’t have symptoms.

The Government has therefore advised that all members of the public must stay at home and, as such, all employees should be permitted to work from home where possible. The Government has said that commuting to work is only permitted where the work “absolutely cannot “ be performed from home.

Where homeworking is being newly introduced, or expanded, the employer should ensure that the health and safety implications have been considered and that the necessary infrastructure is in place. https://www.hse.gov.uk/pubns/ck1.pdf is a useful resource for a workstation assessment which can be carried out by the employee themselves.

2. Closing certain businesses

They include:

  • Restaurants, cafes, pubs, cinemas and theatres (food delivery and takeaway can remain operational)
  • All retail with notable exceptions – these closures include clothing and electronics stores; hair, beauty and nail salons; and outdoor and indoor markets, excluding food markets
  • Libraries, community centres, and youth centres
  • Indoor and outdoor leisure facilities such as bowling alleys, arcades and soft play facilities
  • Communal places within parks, such as playgrounds, sports courts and outdoor gyms
  • Places of worship, except for funerals where certain criteria are met
  • Hotels, hostels, bed and breakfasts, campsites, caravan parks, and boarding houses for commercial/leisure use, excluding permanent residents, key workers and those providing emergency accommodation, for example for the homeless

This is not an exhaustive list – for the full list see: https://www.gov.uk/government/publications/further-businesses-and-premises-to-close/further-businesses-and-premises-to-close-guidance#businesses-and-premises-that-must-remain-closed.

Other businesses can remain open and their employees can travel to work, provided they cannot work from home.

3. Stopping all gatherings of two or more people in public

To make sure people are staying at home and apart from each other, the Government is also stopping all public gatherings of more than two people.

There are only exceptions to this rule for very limited purposes:

  • Where the gathering is of a group of people who live together – this means that a parent can, for example, take their children to the shops if there is no option to leave them at home
  • Where the gathering is essential for work purposes - but workers should try to minimise all meetings and other gatherings in the workplace

In addition, the Government is stopping social events, including weddings, baptisms and other religious ceremonies. This excludes funerals, provided certain criteria are met.

The measures in place for England have changed to:

1. Stay at Home

Advice remains that people should stay at home as much as possible but the limitations on going outside have been relaxed in England. You are permitted to go out in England if it is necessary for specific reasons including:

  • For work, where you cannot work from home
  • Going to shops that are permitted to be open to obtain items such as food and medicine and to collect goods ordered online or on the phone
  • To exercise or spend time outdoors for recreation alone, with members of your own household or with one person from a different household
  • Any medical need, to donate blood, avoid injury or illness, escape risk of harm, or to provide care or to help a vulnerable person
  • To undertake any of the following activities in connection with the purchase, sale, letting or rental of a residential property:
    • Visiting estate or letting agents, developer sales offices or show homes
    • Viewing residential properties to look for a property to buy or rent
    • Preparing a residential property to move in
    • Moving home
    • Visiting a residential property to undertake any activities required for the rental or sale of that property
  • To visit a waste or recycling centre
  • To access critical public services such as social services

If you go out, you should continue to stay two metres (6ft) away from other people at all times and wash your hands as soon as you get home.

The Government has advised that face coverings can help protect each other and reduce the spread of the disease if you are in an enclosed space where social distancing is not possible, and where you will come into contact with people you do not normally meet. This covers situations such as when using public transport or accessing certain shops.

Food retailers and food markets, hardware stores, garden centres and certain other retailers can be open to the public. Other businesses can remain open and their employees can travel to work where they cannot work from home.

Visiting public places is now permitted in England. You can exercise outside as often as you wish and can also sit and rest outside.

You may drive to outdoor publicly accessible open spaces (in England) irrespective of distance but should follow social distancing whilst there. You should not visit ticketed outdoor leisure venues where there is a higher risk of close contact and touching surfaces though.

The Department for Transport advises that people should consider all other forms of transport before using public transport. If it is necessary to use public transport consider avoiding peak times. Businesses may, therefore, wish to consider amending office hours to assist employees using public transport to avoid busy periods.

Where homeworking is being newly introduced, or expanded, the employer should ensure that the health and safety implications have been considered and that the necessary infrastructure is in place. https://www.hse.gov.uk/pubns/ck1.pdf is a useful resource for a workstation assessment which can be carried out by the employee themselves.

2. Closing of businesses

These remain as per Wales and Scotland, however, garden centres are now permitted to reopen and outdoor leisure facilities such as; tennis courts, bowling greens, basketball courts and golf courses can now be accessed and used either alone, with members of the same household or with one person from a different household. 

3. Stopping all gatherings of two or more people in public

Advice remains as per Scotland and Wales with the additional exception that people in England may meet up with one person, not from the same household, for sport or recreation in a public open space, provided that social distancing is maintained. 

3. What is the current guidance on isolation?

The most common symptoms of Coronavirus (COVID-19) are recent onset of a new continuous cough and/or a high temperature.

For most people, Coronavirus (COVID-19) will be a mild illness.

The guidance that was last updated on 28 April is as follows:

  • If you live alone and you have symptoms of coronavirus illness (COVID-19), however mild, stay at home for 7 days from when your symptoms started (The ending isolation section below has more information).
  • After 7 days, if you do not have a high temperature, you do not need to continue to self-isolate. If you still have a high temperature, keep self-isolating until your temperature returns to normal. You do not need to self-isolate if you just have a cough after 7 days, as a cough can last for several weeks after the infection has gone.
  • If you live with others and you are the first in the household to have symptoms of coronavirus, then you must stay at home for 7 days, but all other household members who remain well must stay at home and not leave the house for 14 days. The 14-day period starts from the day when the first person in the house became ill.
  • For anyone else in the household who starts displaying symptoms, they need to stay at home for 7 days from when the symptoms appeared, regardless of what day they are on in the original 14 day isolation period.
  • It is likely that people living within a household will infect each other or be infected already. Staying at home for 14 days will greatly reduce the overall amount of infection the household could pass on to others in the community.
  • If you can, move any vulnerable individuals (such as the elderly and those with underlying health conditions) out of your home, to stay with friends or family for the duration of the home isolation period.
  • If you cannot move vulnerable people out of your home, stay away from them as much as possible.

See https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance/stay-at-home-guidance-for-households-with-possible-coronavirus-covid-19-infection for more detail. This is also a helpful link to circulate to employees, although it can be accessed from the first link in this article.

4. What duties do businesses have to protect the health and safety of workers?

As the current government guidelines suggest, it is vital to try to minimise infection risk, which means preventing employees bringing coronavirus into the workplace where it can spread. It now appears that people can be infectious without symptoms so staying at home and practising social distancing when it is not possible to stay at home is the current advice (see above for guidance on when going out is permitted).  

Certainly, all workers should be instructed to follow the Government’s current self-isolation guidance. If a worker displaying those symptoms attends work, they should be immediately sent home to self-isolate – this is a reasonable management instruction due to the employer’s duty to protect the health and safety of other employees. Employers ought to consider removing barriers to people self-isolating, for example:

  • Can company sick pay be offered to encourage people to self-isolate as an alternative to Statutory Sick Pay (SSP)?
  • Can workers be allowed to use their accrued holiday instead of claiming SSP? You can’t force this to happen but it may be an attractive option for some people.
  • Should Coronavirus-related absences be excluded in any sickness absence triggers or attendance incentives?
  • Sending workers home from work if they present at work with symptoms so that they know not to try to come in.

5.  What if we cannot offer working from home?

If your business is one that is permitted to keep operating but, for practical reasons relating to the nature of the work, it cannot be performed from home, then employers will be responsible for ensuring that they provide a safe place of work for employees. Employers will need to undertake risk assessments and ensure that, so far as possible, social distancing is maintained. Employers will need to consider whether Personal Protective Equipment (PPE) is required and, if so, train employees on applying PPE.

Please see further below in relation to additional considerations for shielding employees and those employees who are at high risk.

6. When do we have to pay Statutory Sick Pay (SSP) for those with symptoms or self-isolating?

SSP is payable if employees are:

  • Incapacitated due to injury or illness (i.e. symptomatic)
  • Deemed to be incapacitated despite being ‘capable’ of work because of necessary self isolation. Employers should regularly check the public health guidance on self-isolation as it has changed as the pandemic has developed, and it directly affects who is entitled to SSP during self-isolation
  • Changes were announced to SSP in the 2020 budget, as follows: 
    • Eligible workers may claim SSP from day one of absence from 13 March 2020 (removing the requirement for three ‘waiting days’)
    • Temporarily extend SSP to cover people caring for those within the same household who display coronavirus symptoms and have been told to self-isolate
    • The government has also announced that small businesses (with fewer than 250 employees) will be reimbursed for any SSP paid to employees in respect of the first 14 days of sickness related to COVID-19, which will have retrospective effect from 14 March 2020 (this has not yet been confirmed in regulations)
    • Workers can obtain an isolation note (from https://111.nhs.uk/isolation-note/) for any coronavirus-related absence in excess of seven days rather than having to obtain a fit note from a GP.

7. Are people who are classed as “extremely vulnerable” under the shielding guidance entitled to receive sick pay?

People falling into the extremely vulnerable group include:

  1. Solid organ transplant recipients
  2. People with specific cancers:
    • People with cancer who are undergoing active chemotherapy
    • People with lung cancer who are undergoing radical radiotherapy
    • People with cancers of the blood or bone marrow such as leukaemia, lymphoma or myeloma who are at any stage of treatment
    • People having immunotherapy or other continuing antibody treatments for cancer
    • People having other targeted cancer treatments which can affect the immune system, such as protein kinase inhibitors or PARP inhibitors
    • People who have had bone marrow or stem cell transplants in the last six months, or who are still taking immunosuppression drugs
  3. People with severe respiratory conditions including all cystic fibrosis, severe asthma and severe COPD
  4. People with rare diseases and inborn errors of metabolism that significantly increase the risk of infections (such as SCID, homozygous sickle cell)
  5. People on immunosuppression therapies sufficient to significantly increase risk of infection
  6. Women who are pregnant with significant heart disease, congenital or acquired

Employees who have an underlying health condition listed above, are at very high risk of severe illness as a result of coronavirus (COVID-19), requiring admission to hospital. These employees have been strongly advised to stay at home at all times and avoid any face-to-face contact for a period of at least 12 weeks. Such employees are likely to have received a “shielding” letter from the Government or a hospital advising them of the risks and advising them to remain at home. 

Shielding employees should, therefore, be permitted to work from home wherever possible.

It may be possible to furlough these employees, please see our Q&A on the Coronavirus Job Retention Scheme (CJRS) for further information.

If shielding employees are not furloughed, and cannot work from home, employers would need to consider the position extremely carefully before requiring shielding employees to attend the workplace. To do so could breach the employer’s duty of care to the employee and/or constitute a breach of the implied term of trust and confidence. This could lead to claims for constructive dismissal, disability discrimination and/or personal injury.

The Statutory Sick Pay (General) (Coronavirus Amendment) (No. 3) Regulations 2020 came into force on 16 April and 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. Therefore, they would be eligible for SSP. However, if they are unable to attend the workplace because the employer cannot provide a safe place of work, which may be extremely difficult for such employees, they should receive full pay.

8. What about high risk employees?

The government has stated that anyone in the following categories are “strongly advised” to work from home:

  • Individuals aged over 70 
  • Women who are pregnant
  • Individuals aged under 70 with an underlying health condition (being any adult instructed to get a flu jab each year on medical grounds) would be strongly advised to work from home for the time-being. These are listed as: 
    • Chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis
    • Chronic heart disease, such as heart failure
    • Chronic kidney disease
    • Chronic liver disease, such as hepatitis
    • Chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), a learning disability or cerebral palsy
    • Diabetes
    • Spleen issues, for example sickle cell disease or where an individual has had their spleen removed
    • A weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets or chemotherapy
    • Being seriously overweight (a BMI of 40 or above)

As above, if working from home is possible, then this should be facilitated.

If it is not possible for the work to be performed from home, employers would need to consider the position extremely carefully before requiring such employees to attend the workplace. To do so could breach the employer’s duty of care to the employee and/or constitute a breach of the implied term of trust and confidence. This could lead to claims for constructive dismissal, disability discrimination and/or personal injury.

If high-risk employees are not symptomatic, nor is a member of their household, they will not be entitled to receive SSP if they are unable to work from home but do not attend the workplace. However, if they are unable to attend the workplace because the employer cannot provide a safe place of work, they should receive full pay.

In relation to pregnant employees, employers have additional duties to protect their health and safety. These include suspending the employee on full pay if the employer is unable to provide suitable alternative work for the employee. This may arise if the employer is unable to provide a safe place of work. See further on this below.

It may be possible to furlough high-risk employees. Please see our Q&A on the Coronavirus Job Retention Scheme (CJRS) for further information.

See also guidance on social distancing for everyone in the UK and protecting older people and vulnerable people.

9. Do we need to pay SSP if a worker chooses to self-isolate to shield a household member who has been classed as “extremely vulnerable” or high risk?

No. The current guidance on shielding states that those who live with individuals classed as "extremely vulnerable" or high risk can continue to work (if they cannot work from home), take daily exercise or shop for essentials.

The Government guidance to those in this situation is below:

https://www.gov.uk/government/publications/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19

If an employee chooses to remain at home and not work, they are not entitled to SSP.

It may be possible to furlough such employees, please refer to our Q&A on the Coronavirus Job Retention Scheme (CJRS) for further information.

10. Are key workers the only workers or employees allowed to attend work?

No – however, the guidance is that only those whose work cannot be performed from home can continue to attend work, if the business is permitted to continue operating (see above). Employers must provide a safe place of work and are required to ensure that social distancing guidance can be followed in respect of employees who are attending work.

If the work undertaken is critical to the COVID-19 response, then employees may be classed as key workers. Key workers are required to continue working, special provision has been made with schools and childcare providers to allow their children to attend, so that key workers can work.

Key workers including those employed in:

  • Health and social care
  • Education and childcare
  • Public services
  • Local and national government
  • Food and other necessary goods
  • Public safety and national security
  • Transport
  • Utilities, communication and financial services

11. Do we need to pay SSP if a worker chooses to self-isolate (when the official guidance does not require it)?

A worker who chooses to self-isolate in circumstances where none of the above requirements are met (e.g. because they are worried) is not entitled to statutory or contractual sick pay.

If an employee refuses to attend, you would need to speak to the employee concerned about the specific reason that the employee is concerned about attending work before deciding whether to take disciplinary action, or withhold pay in light of the employee's refusal.

It is important to remember that some people with health conditions are at higher risk of serious illness or death if they contract COVID-19 (see previous response on “extremely vulnerable” employees). An employer insisting on employees attending work, or refusing to pay sick pay, or even dismissing employees due to absence in the current climate, could risk claims. In addition, if the reason the employee self-isolates is because of a disability that puts them into a high-risk category, such as an auto-immune disease or a respiratory condition, disability discrimination issues may arise.

If there is no disability, and the public health advice is such that the employee could reasonably be asked to continue to attend work, then it is possible that the employee could be investigated for misconduct in terms of their refusal to follow a reasonable management instruction, and their unauthorised absence.

Due to the fear that people have in relation to the current healthcare crisis we would recommend that employees who do not attend work are not dismissed, as it is likely that any dismissal may be found by a Tribunal to not be within the band of reasonable responses open to an employer. If the absence is unauthorised then the employee would likely not be entitled to pay as they are not willing to attend work.  

12. Do we have to pay contractual sick pay?

This depends on the precise wording of any contractual sick pay provisions in the contract. It is tempting for employers to regard a non-symptomatic worker in self-isolation as not “actually sick” and only pay SSP due to the government stance. However, it is very difficult to argue that a worker is not entitled because they are not symptomatic, in circumstances where SSP regulations ‘deem’ them to be ‘incapacitated’ in the circumstances outlined above.  

13. Employer led self-isolation and pay – if an employee has symptoms at work what is the position?

An employee’s right to pay where their employer sends them home from work will depend upon the precise circumstances of that decision. Where the employee is able to continue to work from home then, subject to any contractual provision to the contrary, they will continue to be entitled to their normal rate of pay.

If working from home is not possible, and an employee is suspended by their employer on health and safety grounds, because of a possible risk of infection which does not fall within the government’s self-isolation advice, it is likely that they have the right to continue to receive full pay on the basis of the employer’s implied duty to pay wages. 

14. What steps do I need to take in respect of pregnant employees?

All pregnant employees who can work from home, should be working from home. For those that cannot, and are required to attend work, there are some key steps that the employer must take.

An employer is required to carry out a risk assessment for all pregnant employees. The risk assessment should include the risk of harm due to any “biological agent”. As the coronavirus would be classed as “biological”, the employer is specifically required to assess the risk.

The employer should ensure that the guidelines on social distancing can be rigorously followed. For example, being two metres away from colleagues, hand washing facilities etc. Where this is not possible, the pregnant employee should be suspended from work on full pay.

If a woman is absent wholly or partly due to pregnancy in the last four weeks of pregnancy, the maternity leave will automatically commence.

It may be possible to furlough pregnant employees, please see our Q&A on the CJRS.

15. Can we require employees to take holiday? Can annual leave be carried over into subsequent holiday years?

The normal rules on taking annual leave under the Working Time Regulations 1998 will continue to apply. It is possible to require employees to take annual leave at times dictated by the employer, provided that they are given the required level of notice. The notice required is twice the amount of time that you require employees to take. For example, if you require an employee to take five days annual leave you must give them 10 days’ notice.

Emergency legislation has been passed to relax the restriction on carry over of the four weeks’ annual leave derived from the Working Time Directive (WTD), these changes took effect immediately. The Working Time (Coronavirus) Amendment Regulations 2020 allow workers to carry over any untaken WTD leave where it was not “reasonably practicable” for the employee to take it in the leave year “as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society)”.

There is no firm guidance on what circumstances may be regarded as not reasonably practicable to take annual leave but an obvious example (and the likely purpose of the new legislation) is where the worker is required to be at work and had no opportunity to take paid holiday (such as with certain key workers or employees who are vital to the operation of the business), or where the employee is self-isolating or sick and does not elect to take their annual leave during sickness absence.

Carried over leave may be taken in the two years immediately following the leave year in which it accrued. Employees who have carried over leave can take this whenever they like within the following two years unless the employer has “good reason” to refuse such request. If the employee’s employment terminates before they have chance to use the carried over annual leave, then they must be paid in lieu of any untaken leave on termination.

It is important to note that the above does not apply to the additional 1.6 weeks’ annual leave derived under domestic legislation, nor any enhanced contractual annual leave entitlement over and above the minimum 5.6 weeks.

The position in relation to accrual of and carry over of this annual leave entitlement will depend on the employment contract wording and/or separate agreement between the employer and employee. Many employers have specified in employment contracts that WTD leave is deemed to be taken first in any leave year and this will pose a problem for carry over in accordance with the new right to carry over WTD leave. In the event that you are allowing carry over of annual leave under the new right, and also have contractual provisions to the effect that WTD leave is deemed to be taken first, please seek legal advice.

Employees may wish to take annual leave during sickness absence (or self-isolation) instead of being on SSP or nil pay. Workers are entitled to take statutory annual leave during sickness absence but may not be compelled by the employer to do so – they would have to agree.

An employee can take holiday during a period of furlough, please refer to our Q&A relating to the Coronavirus Job Retention Scheme for further guidance on the issues relevant to the taking of annual leave if an employee is furloughed.

16. Do we have to close the workplace?

If your business is within the categories identified in the Government’s announcement on 23 March (see above), you are required to close your business. Garden centres in Wales were permitted to reopen from 11 May 2020, in England were permitted to reopen from 13 May 2020 but in Scotland must remain closed.

For other businesses, the Acas guidance advises that if someone with COVID-19 comes into a workplace, the workplace does not necessarily have to close.

In England, the local Public Health England health protection team (HPT) will advise and will carry out a risk assessment.

Advice on cleaning of communal areas such as offices or toilets will also be given by the HPT.

17. Can we refuse to allow an employee to work from home if they have children at home?

The majority of working parents are likely to have to juggle childcare and home-working in light of the closure of schools and nurseries, and the Government’s guidance for all employees to work from home where possible. Most employers are willing to agree to more flexible arrangements and expectations in the current circumstances and measures could include working different hours or days, and reducing work targets.

However, employees with very young children, especially if they are single parents, may not be able to work at all. Following recent published guidance, it is now possible to furlough such employees – please see our Q&A on the CJRS for further information.

18. Can we lay staff off due to Coronavirus?

First, check if the contract contains a contractual provision, which allows the employer to temporarily lay people off work (or reduce working hours). If there is a contractual right to lay off, then the employer should comply with the requirements of the provision (e.g. give the required notice of lay-off to staff and/or consult with any recognised trade unions if required).

Employees with one month’s service, who are laid off, may be entitled to claim a Statutory Guarantee Payment (SGP) on up to five workless days in a three-month period. To calculate SGP, the company must multiply the regular hours that the employee would have worked on the ‘workless day’ by the ‘guaranteed hourly rate’. The current maximum daily limit of SGP is £29 (subject to the maximum of five days or £145 in any three months).

Employees can claim a redundancy payment from the company if they are laid off for:

  • Four or more weeks in a row
  • Six or more weeks in a 13-week period, where no more than three weeks are in a row

If there is no contractual right to lay staff off, the employer faces two main choices:

  • Seek the agreement of the staff to a temporary lay-off or reduced hours. This will require consultation and is usually based on the rationale of saving jobs/reducing the need to make redundancies
  • Seek the consent of the employees to change the contract to include a lay-off provision. This negotiation must be handled fairly and will require a consultation process and reasonable notice. Specific advice should be sought

If there is no lay-off provision in the contract, any lay-off without agreement would be a fundamental breach of contract, an unlawful deduction of wages and could lead to various employment claims.

The Government has now introduced the CJRS, or furlough scheme, which can enable an employer to claim up to 80% of an employee’s normal salary up to a maximum of £2,500. Please see our Q&A on the CJRS for information on using furlough as an alternative to lay off or redundancy.

19. Can we retract/delay offers of employment?

If you have offered employment to individuals to start on a set date and they have accepted that offer, you are contractually bound to honour that obligation. However, in the circumstances, it may be possible to agree with the individuals that you push back their start date. If you are able to agree this, then you have effectively varied the contract (offered and accepted) to start on the new date.

The problem you are likely to have is that you will probably not be able to set a new start date while things are still so uncertain, so effectively you are asking an individual to agree to delay their start date indefinitely. If they do not agree to vary the start date then you would need to consider your alternative options.

If you allowed the employment to commence on the start date they would then potentially fall into one of three categories:

  • Potentially eligible for SSP (if they have sufficient earnings) if they have to self-isolate because they or a member of their household has potential symptoms (or potentially eligible for company sick pay, depending on any terms applicable);
  • If they can productively perform work from home, then they are working from home and should receive pay. Note that they would need to be set up to do this and inductions/new starter process may be seriously impaired; or
  • If you have no work to offer them and the office is not closed based on PHE guidance, then they would be eligible to receive full pay because they are ready and able to work but you have no work to give to them (unless you have a contractual right to lay off or place on short time working).

The alternative option to consider is whether you would want to retract the offer of employment. You would need to check the terms of the contract to see what notice you are required to give to terminate the contract. You would also need to be careful that you do not inadvertently trigger any potential discrimination claims by treating people with any protected characteristics differently.

There is a potential for the employee to claim breach of contract flowing from this course of action. In most cases where you pay notice entitlement, the risk of claims would be low but, if the employee has left their current job to start with you, and then you pull the job offer and they suffer losses as a result, this could lead to a claims risk, especially in the current climate where other jobs may be more difficult to come by.

Once the employee has accepted the offer, a contract of employment will be in existence. In these circumstances, the only way for the employer to terminate the contract is to give the employee the notice to which they are entitled under the contract. Failure to do so will be a breach of contract. The employee's loss in respect of such a breach of contract will normally only begin to accrue after the date on which their employment was due to start (because the employee will not generally be entitled to any benefits before they start work). Therefore, if the employee has a four-week notice period, but the employer wrongfully terminates the contract one week before the employee was due to start work, damages will normally be limited to three weeks' earnings.

It will not be possible to furlough any employees whose employment commenced (or was due to commence) after 19 March 2020. Please see the Q&A on the CJRS for further information.

 


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