Common employment questions related to coronavirus

Information for members from the AOP employment team. Updated 15 May 2020

Virus

In response to the impact of the coronavirus (COVID-19) on optical businesses, the AOP employment team has addressed the most common employment-related questions from members.

The situation is changing rapidly and is complex, so the information on this page can provide guidance only, and members will be aware that new announcements are being made all the time. For the latest information, visit www.gov.uk and www.acas.org.uk/coronavirus. If you need specific advice on your circumstances please contact the employment team on [email protected]

Please note the position may be different if you are in Northern Ireland or Ireland. Visit www.nidirect.gov.uk and www.lra.org.uk/covid-19-advice-employers-and-employees

1. Employer guidance

It's good practice for employers to:

  • Keep everyone updated on actions being taken to reduce risks of exposure in the workplace – risk assessments are required to be completed in consultation with staff and employers should consider Guidance for people who work in or run shops, branches, stores or similar environments and any clinical guidance
  • Make sure everyone's contact numbers and emergency contact details are up to date
  • Consider extra precautions for staff who might be more vulnerable, for example if someone is pregnant, aged 70 or over, or has a long-term health condition
  • Make sure managers know how to spot symptoms of coronavirus and are clear on any relevant processes, for example sickness reporting and sick pay, and procedures in case someone in the workplace shows symptoms of the virus
  • Make sure there are clean places to wash hands with hot water and soap, and encourage everyone to wash their hands regularly
  • Provide hand sanitiser and tissues for staff, and encourage them to use them
  • Asking employees to inform HR if they are travelling to or have returned from an affected area
  • Consider if any travel or meetings are necessary and if meetings can be held remotely instead
  • Keep up to date with the latest government coronavirus advice on GOV.UK or NIDIRECT.GOV.UK if you are in Northern Ireland
  • You should not single anyone out unfairly. For example, they do not treat an employee differently because of their race or ethnicity or because they have raised health and safety concerns

More information is available at the following sources and employers should keep track of any changes.

2. Self-isolation and sick pay

Employees and workers must receive any Statutory Sick Pay (SSP) due to them if they need to self-isolate because:

  • They have coronavirus
  • They have coronavirus symptoms, for example a high temperature or new continuous cough
  • Someone in their household has coronavirus symptoms
  • They've been told to self-isolate by a doctor or NHS 111
    • If someone has symptoms and lives alone, they must self-isolate for seven days
    • If someone lives in a household and is the first to have symptoms, they must self-isolate for seven days. Everyone else in their household must self-isolate for 14 days
    • If anyone else in the household starts displaying symptoms, the person with the new symptoms must self-isolate for seven days. This is regardless of where they are in the 14-day isolation period

    Find more guidance for households with possible coronavirus on GOV.UK 

    For members in Northern Ireland

    If you are in Northern Ireland more guidance for households with possible coronavirus can be found on NIDIRECT.GOV.UK.

    If an employee or worker cannot work, they should tell their employer:

    • as soon as possible
    • the reason
    • how long they're likely to be off for

    The employer might need to be flexible if they require evidence from the employee or worker. For example, someone might not be able to provide a sick note ('fit note') if they've been told to self-isolate for more than seven days.

    Find advice about self-isolating on NHS.UK.

    An employee who is self-isolating can self-certify for the first seven days of absence in the usual way. After that they can use isolation notes which are available via the NHS website or NHS 111 online to provide evidence of self-isolation after seven days.

    Isolation notes should be available on the NHS and 111 websites shortly, to provide evidence of self-isolation after seven days.

3. Vulnerable people

Employers need to be especially careful and take extra steps for anyone in their workforce who is at increased risk from coronavirus.

They include, but are not limited to, those who:

  • Have a long-term health condition, for example asthma, diabetes or heart disease, or a weakened immune system as the result of medicines such as steroid tablets or chemotherapy
  • Are pregnant
  • Are aged 70 or over
  • Care for someone with a health condition that might put them at a greater risk

Find out more about social distancing and vulnerable people on GOV.UK.

Employers should also be alive to the fact that if an employee raises concerns about health and safety in relation to coronavirus that they may have special protection under the law. 

Those people who are over 70, vulnerable because of an underlying health condition or pregnant will also most likely have protection from discrimination under the Equality Act 2010.

Age and pregnancy are protected characteristics under the Act, as is disability. Long-term conditions are likely to amount to disabilities, especially for those receiving medical treatment.

All three groups should not be treated less favourably because of this protected characteristic.

For members in Northern Ireland

Find out more about social distancing and vulnerable people on NIDIRECT.GOV.UK.

Employers should also be alive to the fact that if an employee raises concerns about health and safety in relation to coronavirus that they may have special protection under the law. 

Those people who are over 70, vulnerable because of an underlying health condition or pregnant will also most likely have protection from discrimination under the Employment Equality (Age) Regulations (Northern Ireland) 2006, the Disability Discrimination Act 1995 and the Sex Discrimination (Northern Ireland) Order 1976.

Age and pregnancy are protected characteristics under this legislation, as is disability. Long-term conditions are likely to amount to disabilities, especially for those receiving medical treatment.

All three groups should not be treated less favourably because of this protected characteristic.

4. What if an employee does not want to go to work?

Some people might feel they do not want to go to work if they're afraid of catching coronavirus. This could particularly be the case for those who are at higher risk.

An employer should listen to any concerns staff may have and should take steps to protect everyone. Staff should be consulted with about risk assessments. Employers should consider individual circumstances. For example, is the employee at higher risk than the general population if they were to catch coronavirus or do they live with someone who is at greater risk? Does the employee have a mental health condition, such as anxiety, which could be influencing their decision making process? Is the individual disabled, and could allowing them to stay away from the workplace be considered to be a reasonable adjustment?

Practical ways around the problem should also be considered. For example, they could offer extra car parking where possible so that people can avoid using public transport. Is home working a possibility?

If an employee still does not want to go in, they may be able to arrange with their employer to take the time off as holiday or unpaid leave. The employer does not have to agree to this.

If an employee refuses to attend work without a valid reason, it could result in disciplinary action.

5. What if the employer needs to close the workplace?

An employer may want to plan in case they need to close the workplace temporarily.

This might be a difficult time for both employers and staff. It’s a good idea to make sure staff have a way to communicate with the employer and other people they work with.

Please refer to question 6 below for details of the Coronavirus Job Retention Scheme.

Consideration should also be given to other Government funding (including interest free business loans) that may be available.

6. Coronavirus Job Retention Scheme

In some situations, an employer might need to close down their business for a short time, or ask staff to reduce their contracted hours temporarily. If the employer thinks they'll need to do this, it's important to talk with staff as early as possible and throughout the closure. See Coronavirus: guidance for employers on furlough leave.

Employers should first consider the Coronavirus Job Retention Scheme (which has recently been extended until the end of October). The aim of the Scheme is to protect jobs and avoid redundancies during the coronavirus outbreak. 

If you wish to make use of the Coronavirus Job Retention scheme you will need to:

  • Contact HMRC to obtain a grant to subsidise pay for workers who are not working due to the coronavirus situation (the definition of worker is still awaited but it will cover all workers paid through PAYE and not just employees)
  • Submit information to HMRC about the employees that have been furloughed and their earnings through a new online portal. HMRC will set out further details on the information required
  • Designate affected employees as ‘furloughed workers,’ and notify your employees of this change. Changing the status of employees remains subject to existing employment law and, depending on the employment contract, may be subject to negotiation. As such, unless there is a contractual right in the contract of employment not to provide work (for example a lay-off clause) most employers will require to obtain the agreement of employees to this change. Similarly, unless the employer is going to top up the remaining 20% of pay, explicit written agreement to the change in wages should also be obtained

The intention is that the Government will pay up to 80% of furloughed workers wage costs, up to a cap of £2,500 per month plus associated employer national insurance contributions and the minimum auto-enrolment pension contributions on the reduced wage, with the cost of wages being backdated to 1 March 2020.

7. Lay-offs and short-time working

"Lay- off" means no work is provided to employees, and no pay, for a temporary period but the employee remains in employment.

"Short-time working" means that an employer provides less than 50& of the employees' usual contracted hours (with less pay) for a temporary period and the employee remains in employment.

Employers can implement short time working or employees can be laid off without pay where there is a specific term in the employment contract allowing the employer to do so. When an employee is laid off, they might be entitled to a statutory guarantee payment from the employer, limited to a maximum of five days in any period of three months. The maximum rate of pay is currently £29 per day, rising to £30 per day in April.

Holiday entitlement continues to accrue during lay off and short time working.

Unless the contract gives a right to lay them off with no/reduced pay, they would generally still need to pay their employees for this time.

If there is no contractual right to lay-off/ short time working, then you can consult with employees and seek their express agreement to it.

8. Can I ask employees to use holiday?

Any annual leave taken must be in accordance with the employee's contract of employment. Employers have the right to tell employees and workers when to take holiday if they need to. For example, they can decide to shut for a week and everyone has to use their holiday entitlement.

If the employer does decide to do this, they must tell staff at least twice as many days before as the amount of days they need people to take.

For example, if they want to close for five days, they should tell everyone at least ten days before.

This could affect holiday staff have already booked or planned. So employers should:

  • Explain clearly why they need to close
  • Try and resolve anyone’s worries about how it will affect their holiday entitlement or plans

New government guidance has been published on holiday (Holiday entitlement and pay during coronavirus (COVID-19))

9. What if an employee needs time off work to look after someone?

  • Employees are entitled to time off work to help someone who depends on them (a 'dependant') in an unexpected event or emergency. This could apply to situations to do with coronavirus
  • A dependant does not necessarily live with the person, for example they could be an elderly neighbour or relative who relies on the person for help

There's no statutory right to pay for this time off, but some employers might offer pay depending on the contract or workplace policy.

The amount of time off an employee takes to look after someone must be reasonable for the situation. For example, they might take 2 days off to start with, and if more time is needed, they can book holiday. There may also be practical ways around it, for example, employees could agree to use holiday entitlement, or to temporarily reduce working hours or to work flexibly (for example working in the evenings).

10. When would redundancies be considered appropriate?

A redundancy situation occurs where:- 

  • The employer closes a workplace or where their need for employees to carry out work of a particular has ceased or diminished (or is expected to cease or diminish) 
  • Employers may want to consider whether any of the business support measures including the Coronavirus Job Retention Scheme (see question 6 above and Guidance for employers on furlough leave) will help them or whether a temporary closure is appropriate first. Employers are likely to be criticised if they do not explore using the CJRS first, especially as the scheme has now been extended until the end of October. If the employer is remaining open but appointments have dropped off they may want to ensure they can have adequate cover if staff are off sick or self-isolating due to coronavirus concerns or absent for other reasons, such as childcare
  • Employees with 2 year’s service would have the right to redundancy pay and to claim unfair dismissal if a fair process was not followed. A fair process should involve consultation with employees before any final decisions are made and depending on the numbers involved that could include collective consultation. You should seek advice before taking this step. In Northern Ireland the statutory dismissal procedure must be followed and you only need one year’s service to claim unfair dismissal

11. How is disability defined at work?

Broadly, a medical condition will amount to a disability if it has a long-term (more than a year) and substantial (more than minor) adverse effect on a person’s ability to carry out normal day-to-day activities (or if it would have that effect were it not for any measures being taken to correct it). In terms of considering the impact that a condition would have, one should therefore imagine how the employee would be if they were receiving no medical treatment.

An employer also has a duty to make reasonable adjustments under section 20 of the Equality Act 2010 for disabled employees and not to treat them unfavourably because of something arising in consequence of their disability.

If for example they are treated unfavourably because they are unwilling to come into work due to coronavirus risk, and if their unwillingness is because of the additional risk associated with their disability then they may have grounds to complain. 

In Northern Ireland an employer also has a duty to make reasonable adjustments under section 4A of the Disability Discrimination Act 1995 for disabled employees and not to treat them unfavourably because of something arising in consequence of their disability.

 

12. I am pregnant. What should I know?

You should not be treated unfavourably because of pregnancy.

Employers who have been notified of a pregnancy in writing have a duty to carry out a risk assessment for pregnant employees, although this need not be in writing. Where the risk can’t be avoided, the employer must alter the woman’s working conditions or hours of work. If they can’t do this, they should offer her any alternative work. If none of this is possible, she should be suspended with pay on maternity grounds. In this ever-changing situation with the coronavirus (COVID-19) it’s not entirely clear how this will interact with SSP, but it is something to consider. More detail on this. The employer could seek the employee’s agreement to being furloughed.

13. Am I entitled to the 80% rate of pay on ‘furlough’ leave if my workplace stays open but I choose to isolate?

The details of the furlough leave scheme are on gov.uk.  See also our guidance at Guidance for employers on furlough leave.

At present this would occur where the employer designates employees as furloughed workers – that is, it doesn’t seem an employee could do this themselves of their own volition. Technically, the popular view is that it needs to be done by agreement with employees only, but if employees face the choice of redundancy or unpaid lay off, presumably they’d agree.

The government website guidance for employees says the aim of the scheme is to avoid redundancies. The employer guidance states the following:

  • Designate affected employees as ‘furloughed workers,’ and notify your employees of this change - changing the status of employees remains subject to existing employment law and, depending on the employment contract, may be subject to negotiation
  • Submit information to HMRC about the employees that have been furloughed and their earnings through a new online portal (HMRC will set out further details on the information required)

HMRC will reimburse 80% of furloughed workers wage costs, up to a cap of £2,500 per month. HMRC are working urgently to set up a system for reimbursement. Existing systems are not set up to facilitate payments to employers.

If some were furloughed and some were not in a way that one could argue was discriminatory – for example if people had been treated differently because of a protected characteristic, such as disability/ age/ pregnancy etc – then you could argue that this was discriminatory. This might assist if those in the vulnerable group were at home on SSP (or any contractual sick pay) but the other staff were furloughed on higher pay.

Similarly, if you raised health and safety concerns with your employer and were treated less favourably as a result of this, so that you were a whistle-blower for statutory protection, then you might say that any unfair singling out was also unlawful.

Again, this might only work if some were furloughed and some weren’t.

14. Can I be penalised by my employer for not going in?

This will depend on the circumstances. If you are in a vulnerable group, you may be able to argue that any attempt by the employer to do this was discrimination under the Equality Act 2010 because of pregnancy/ age/ disability.

If your employer is operating in an unsafe way, you may have additional protection as a whistle-blower or under health and safety protection, but this will usually only apply if you are treated worse than others or have been subjected to a detriment because:

(a)  You have made a public interest disclosure (this would be more likely if it related to patient safety as opposed to staff safety); or
(b)  The employer was really operating in a way that was a danger to health and safety. If they are following government guidelines this seems unlikely. 

If you are raising health and safety concerns, it is generally better to do so in writing. 

There is an implied duty in every employment contract for the employer to provide a safe working environment and a duty on an employer to take reasonable care for the health and safety of their employees. Employees also have a responsibility to tell their employer of any situation that would represent a serious and imminent danger to health and safety. There is protection from detriment and dismissal if this is done in an appropriate way. 
 

15. What if I/my employees can’t take all their holiday due to Covid-19?

The government has introduced a temporary new law to deal with coronavirus disruption.

Employees and workers can carry over up to four weeks’ paid holiday over a two-year period, if they cannot take holiday due to coronavirus.

For example, this could be because:

  • they’re self-isolating or are too sick to take holiday before the end of their leave year
  • they’ve had to continue working and could not take paid holiday
See the ACAS site for more information about using holiday, and the new government guidance, Holiday entitlement and pay during coronavirus (COVID-19).
As this has now confirmed that holiday can be taken without disrupting furlough, being furloughed would not usually be viewed as a good reason for their having been unable to take holiday due to coronavirus (unless the employer could not afford to top up their furlough pay to usual holiday pay - see Guidance for employers on furlough leave).