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12 key questions for employees and the self-employed during the coronavirus pandemic (3 April 2020)

Date: 03/04/2020
Duncan Lewis, Legal News Solicitors, 12 key questions for employees and the self-employed during the coronavirus pandemic

Information accurate as of 6th April 2020

The outbreak of coronavirus, specifically Covid-19, raises many uncertainties regarding employment. In this article, we cover ten key questions that employees need to know the answers to.

It is important to note that the advice and instructions to both employees and employers is changing daily, please keep checking the government website, https://www.gov.uk/coronavirus, for the latest information.

The government announced on 23 March 2020 that for the following three weeks, people should only leave home for ‘very limited purposes’ and should only travel to and from work where ‘absolutely necessary’ and when this work cannot be done remotely from home. This is now legally enforced by Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 which provide that nobody should leave the place where they are living without a reasonable excuse during an emergency period. There are similar statutory instruments for Wales, Scotland and Northern Ireland.

The government has ordered certain businesses to close including those in the hospitality industry; pubs, restaurants, cinemas, theatres and most retail outlets. The list is very fluid with more sectors likely to be closed over the coming days and weeks.


Q1 Do I need proof to self-isolate? Will I still be paid?

Employees should check the latest government guidance. The current Covid-19: stay at home guidance is that anyone with a new, continuous cough or high temperature is advised to self-isolate at home for 7 days, or if someone else in their household is showing symptoms they must self-isolate for 14 days.

Employees can self-certify for the first seven days so they do not need to provide any evidence to their employer. After that, employers may ask for evidence of sickness absence and employees can now obtain an isolation note through a new online service: https://111.nhs.uk/isolation-note/. Where isolation is related to having symptoms of coronavirus or living with someone who has symptoms the isolation note can be used to provide evidence of the advice to self-isolate.

On 28 March the Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020 came into force. If an employee needs to self-isolate on the basis of coronavirus symptoms - however mildly - or due to living with someone with symptoms, they may be entitled to Statutory Sick Pay (SSP) for up to 28 weeks. They will still have to be eligible for SSP under the ‘normal’ rules however it will now be available from day one of self-isolating rather than after the usual three day waiting period. This has been backdated to 13 March 2020 and is a temporary measure to deal with the outbreak. Employees who have been on sick leave can be placed on the Furlough Scheme after the period of sick leave has come to an end and they are no longer receiving Statutory Sick pay or contractual sick pay.


Should a general fear of the virus be the basis of self-isolation then the employee will not be entitled to SSP. An option available to employers is to allow those who are seeking to self-isolate as a precautionary measure to work from home, take holiday or adjust their hours to enable them to travel outside rush hour. If the employee is able to work remotely, they will be entitled to usual pay. If these options are not available then the employee will not receive pay and may face disciplinary action against them for a refusal to work.


Q2 Can asymptomatic employees be required to take holiday or unpaid leave by their employer? How does this impact a pre-booked holiday?

If an employee is not sick but their employer tells them not to come to work, they should usually be entitled to full pay. Unless, in the unlikely scenario that the employer has a contractual right to place an employee on a period of unpaid leave. The employer should comply with whatever has been agreed in the contract of employment.

Employers have the right to tell employees and workers when to take holiday. An employer could, for example, shut for a week and tell everyone to use their holiday entitlement. If the employer decides 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.

Employers can also cancel pre-booked paid holiday. If they decide to do this, they must give staff at least the same number of days’ notice as the original holiday request. For example, if an employee has booked five days holiday, the employer must tell them at least five days before the holiday starts that it is cancelled. This could affect holiday that staff have already booked or planned. So employers should explain clearly why they need to do this and try and resolve anyone's worries about how it will affect their holiday entitlement or plans.


Q3 Will I get paid if my employer shuts the work place temporarily? What if the company has goes into administration?

In circumstances where an employer shuts the workplace, unless there is a contractual right for them to ‘lay off’ without pay, then an employee would be entitled to receive full pay unless they have agreed to forgo pay or to receive payment as per the government’s Coronavirus Job Retention Scheme (CJRS) introduced on 20 March 2020. If a company has gone or is going into administration, the administrator will be able to access the CJRS in the same way as other employers. Further detail is given in Q8.


Q4 What if I am not able to work remotely? Can my hours be reduced and will I run the risk of losing my job? If so, how will I afford my rent?

If the employee is willing and able to work but cannot work remotely because their employer is unable to provide work, they will be entitled to full pay unless the Employment Contract specifically allows the employer to lay off without pay. Employees would need to check their contract of employment for express lay-off or short-time working clauses as these would form an exception.

Lay-off or short-time working cannot be enforced by an employer unilaterally and without a clear contractual right to do so. If an employer is imposing either of these without a contractual right then this would amount to potential claims for breach of contract, constructive dismissal (where an employee has over two years’ service) and unlawful deduction of wages. An employee may agree to short-time working should their position be at risk of termination or redundancy (if agreement is mutual it can be agreed for any reason). Employees with service for over two years would be entitled to redundancy pay however if the employer does make employees redundant they would still need to follow the normal redundancy process. The employer should, however, consider the new Job Retention Scheme as an alternative to the above.

From 26 March 2020 landlords will have to give all renters three months’ notice should they intend to seek possession. Further, the courts in England and Wales have been instructed to suspend all ongoing housing possession action for 90 days, from 27 March 2020. This measure will cover all private and social renters, as well as those with mortgages and licences covered by the Protection from Eviction Act 1977. Local Housing Allowance rates will be increased to the 30th percentile of market rents from April 2020. State benefits such as Universal Credit may be available should individuals be affected by the economic impacts of the virus.

For more information surrounding housing law during the pandemic, see our Q&A for landlords and renters here.


Q5 Can I take time off to take care of a dependent? What are my rights now that my child’s school has closed?

Employees are entitled to take reasonable time off work to take care of a dependant under the ‘Time off for Dependents’ legislation, however there is no statutory right for employers to pay for this unless the contract of employment or workplace policy states otherwise. Employees should check contracts and policies. SSP is available should a dependent in the employees household contract symptoms of coronavirus.

Amid school closure, employers should expect there to be disruption to an employee’s ability to work as normal under these circumstances. Working from home may be difficult when caring for a small child. Employees have a statutory (and limited) right to unpaid leave and parents may have a statutory right to unpaid parental leave. There is also a statutory right to reasonable unpaid time off to deal with emergencies and unexpected events involving dependents. Should employees have to take time off to care for a dependent for a short time, they would be required to arrange longer term care.

It is advised that employees inform their employer as soon as reasonably practicable about the reason for absence and how long they are expected to be away from work. Any formal agreement with the employer should be recorded by way of written agreement. The employer does not have to agree to an employee’s request, though this may give rise to an employee bringing a claim at tribunal. Subject to staffing needs, employers should consider whether to allow employees to take holiday, agree flexible hours on a temporary basis or allow unpaid leave where working from home may be difficult.

Crucially, the new government guidance released on 4 April 2020 has confirmed that if an employee has caring responsibilities (e.g. child care issues caused by lockdown) they can be furloughed under the furlough scheme, as well as employees who are shielding themselves in line with government advice.

If an employee’s work is critical to the Covid-19 response, i.e. they are a keyworker or if a child is vulnerable, then the government has made provisions for schools and childcare providers to continue to provide care. Key workers are people whose jobs are vital to public health and safety during the coronavirus lockdown because their work is so vital, the government is keen to ensure that they are able to carry out their jobs with as little restriction as possible. It includes those working in health and social care, education and childcare, key public services, local and national government, food and other necessary goods, public safety and national security, transport and utilities, communication and financial services.


Q6 How can the self-employed workers maintain their income?

Chancellor Rishi Sunak announced on 26 March 2020 details of a rescue package for self- employed individuals in its Covid-19 emergency measures. The government introduced a new Self-employed Income Support scheme (SEISS) on 26th March paying a taxable grant worth 80 percent of average profit over the last three years, capped at £2,500 per month. The self-employed or members of a partnership can claim these grants and continue to do business, so it is not the same as furlough leave where employees have to remain at home.

The SEISS is open to those who were trading in the last financial year, are still trading now, and are planning to continue trading this year. The scheme is available to individuals with trading profits of up to 50k, where the majority of income (more than half) is from self-employment and to those that have submitted a tax return for 2018-19. Those who did not submit their tax returns by the due date of 31 January 2020, may submit a tax return by 23 April 2020 in order to be eligible.

HM Revenue and Customs (HMRC) are to contact the eligible self-employed individuals directly and pay the grant into their bank account after inviting them to fill out an online form. The scheme will be open to people across the UK for at least three months, though it is unlikely to be running before the end of June 2020 and therefore will not assist with immediate cash flow issues.

Self-employed people or those earning below the Lower Earnings Limit of £118 per week are not eligible for SSP. However, the government have announced that they will more easily be able to claim Universal Credit or new style Employment and Support Allowance (ESA) from the first day of isolation rather than after eight days. Where Minimum Income Floor is applicable, requirements will be relaxed from 6 April 2020. If working in the gig economy, workers will not be entitled to SSP unless it is a contractual right and they are advised contact their employer to find out their rights.


Q7 What about protecting staff whose pre-existing health conditions may put them at a higher risk?

Employers have a duty to protect the health and safety of their staff which includes carrying out additional risk assessments and giving special consideration to specific groups of high-risk employees who may be vulnerable due to a long-term health condition, disability, age or pregnancy. Employers should only be allowing employees to attend work where it is not possible for them to work from home. Flexible working arrangements, temporary alternative employment or medical suspension on full pay should be prioritised for those individuals at greater risk at work. Refusing to allow vulnerable employees to stay at home or disciplining them for not attending work gives ground for potential legal claims against the employer if there is a genuine health and safety risk.

New guidance released on 4 April 2020 allows for anyone who is shielding in line with NHS advice (i.e. vulnerable people, people over 70 and pregnant woman) to be furloughed. This scheme is discussed further in Q8.



Q8 I’ve heard that I can get 80% of my salary by staying at home. How do I claim this?

The government announced a Coronavirus Job Retention Scheme (CJRS) on 20 March 2020, with further guidance released on 4 April 2020. It is confirmed that the furlough scheme can pay up to 80% of salary as at 28 February 2020 for staff who are laid off, that have caring responsibilities or are ‘shielding’ in line with public health guidance; in a radical move aimed at protecting people’s jobs and avoiding redundancies.

The scheme will apply from 1 March 2020 and last for at least three months, until 31 May 2020 (subject to review). The scheme is available to all UK employers of any size and in any sector. If an employer intends to access CJRS, they have a duty to consult with the employee or worker (not including the self-employed), the employee or worker would need to consent and confirmation of their consent to furlough must be in writing and a kept for five years. The employee or worker must have been on the employers PAYE payroll on 28 February 2020 an on any type of contract to qualify for furlough (whether full-time, part-time, employees on agency contracts or employees on flexible or zero-hour contracts). The employee must be kept on the employer’s payroll during this period and paid by the employer as usual. Employers can bring staff in and out of furlough but a period of furlough must be for a minimum of three consecutive weeks. This suggests that furloughing by rotation is possible, in order to spread the workload across all staff.

It is the employer who can claim from the HMRC via an online portal, expected to be available by the end of April 2020. It was announced on 4 April 2020 that the employer must be enrolled for PAYE online. Up to 80 percent of furloughed workers’ wage costs at a maximum of £2,500 per worker per month can be claimed, plus National Insurance contributions, Income Tax together with pension contribution up to the value of 3%. Further to the guidance released on 4 April 2020, it is confirmed that an employer can reclaim fees (at the moment we are unclear what that means and await further clarification from the government) and compulsory commission (presumably meaning contractual) back from HMRC, as well as basic salary. Discretionary bonus (including tips), commission payments and non-monetary benefits (health insurance or a company car) are not included as part of monthly earnings. The employer can choose to top up monthly earnings to 100 per cent however they are under no legal obligation to do so.

This forms part of a national Government effort of protecting jobs through new measures also including guaranteed loans, a temporary suspension of business rates for the retail, hospitality and leisure sector, and deferral of VAT payments aimed to enable businesses to pay wages, rent and suppliers.

The government page on CJRS must be checked for updates.


Q9 I was made redundant after 28 February 2020, is it too late to be furloughed? If not, can I request to be furloughed?

The CJRS guidance confirms that employees who have been made redundant or stopped working after 28 February 2020 can be furloughed if they are re-employed and put on furlough. This includes those who left by way of resignation or were dismissed for gross misconduct, not just redundancy. It should be noted that there is no compulsion on an employer to re-engage redundant employees and employers may be reluctant to do so particularly if redundancy and notice payments have already been paid and cannot be recovered.

Employees cannot unilaterally elect to be furloughed. The decision should be entirely the employer’s having satisfied that they meet the requirements of the CJRS and have carried out any necessary selection process. If employer decides to re-engage an individual, they should be aware that an employee with less than 2 years’ service may qualify for employment protection legislation if the period of furlough gives them 2 years of service.


Q10 Will I get full pay while furloughed over Easter bank holiday? Can furloughed workers be required to take holiday and are they entitled to holiday pay?

The government’s latest announcement states that employees must get their ‘usual’ full pay for bank holidays. The revised ACAS guide makes it clear that employees may be required to use a day’s paid holiday for bank holiday while furloughed.

The guidance on the Coronavirus Job Retention Scheme states that “employees that have been furloughed have the same rights as they did previously.” This would suggest that holiday entitlement will accrue as normal for workers on furlough and that employees can be required to take holiday during furlough. It remains unclear whether furloughed workers can be required to take holiday or what pay they would be entitled to should they take holiday. It would be assumed that the pay they receive during this period will depend on whether employees are receiving 80% furlough pay or whether the employer is topping this up. It is hoped that further clarity is provided by the government this.


Q11 Will I be able to carry over unused holiday as a result of Covid-19?

Recent government guidance allows employees to carry over up to 4 weeks of holiday into the next two leave years. This provision will apply where at the end of the year it has not been “reasonably practicable” for a worker to take some or all of this leave as a result of the effects of the Coronavirus. This is aimed primarily at ‘key workers’ who are unable to take their normal leave. This does not however prevent employers from requiring employees to take their holiday allowance during the current leave year.



Q12 Earning 80% of my salary will mean that I am earning less than the National Minimum Wage, will I be made redundant if I refuse to be furloughed? Can I take up another job while furloughed?

It is correct that furloughed employees pay may fall short of National Minimum or National Living wage rates this is because the National Minimum Wage only applies when somebody is working. However should employees be required to complete training courses while furloughed they are entitled to National Minimum wage or Living wage during this training period. Apprentices must be paid at least the Apprenticeship Minimum Wage, National Living Wage or National Minimum Wage as appropriate for the duration of their apprenticeship.

An employee cannot be forced to be furloughed, unless the employment contract permits it which is unlikely. If an employer is imposing furlough without consent then this would amount to potential employment claims for breach of contract. It would be prudent to bear in mind the risk of a fair termination of employment or redundancy should an employee refuse to be furloughed. Redundancy should be in line with normal redundancy rules. Please seek legal advice if you consider that there is anything unfair about your redundancy, you may be able to bring a claim for unfair dismissal.

Employees on furlough must not be making money for their employer or providing services to their employer, however they are able to undertake volunteer work and training subject to public health guidance. While an employee may potentially work for another employer during the period of furlough they would need to check their contract of employment as this may contain restrictions.


It is important to note that this is an extremely unique situation and that new guidelines are being introduced almost daily.

Author Harveen Lehal is a solicitor in the employment department at Duncan Lewis Solicitors, with extensive expertise in a wide range of employment issues affecting both employers and employees.

Contact Harveen on 0203 114 1306 or at harveenl@duncanlewis.com

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