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Employment Law and COVID-19 (Coronavirus)

We set out below the recent amendments to legislation in relation to employment law which are designed to help employer and employee alike weather the coming weeks and months.


What does the government’s announcement on 23 March 2020 mean for employers?

On 23 March 2020 the government issued new guidance which requires the public to stay at home, subject to limited exceptions (Cabinet office: Full guidance on staying at home and away from others). Commuting to work is permitted, but only where the work “absolutely cannot” be done from home.

The effect of the new guidance is also to close down all non-essential businesses including:

  • All non-essential retail stores – this will 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 attended by immediate families.

Hotels, hostels, bed and breakfasts, campsites, caravan parks, and boarding houses for commercial/leisure use (excluding permanent residents and key workers).

If the workplace has to close temporarily following the government’s announcement on 23 March 2020, do we still have to keep paying our employees?

Some employers will be able to continue to run their business with employees working remotely, but many employers will not be able to do so, such as those in the service industry. All employers should consider whether there is work that some or all of their employees could carry out in this situation, at least for an initial period. This may mean asking employees to temporarily carry out work that is not within their usual job description. However, in the circumstances, employees are likely to be flexible in order to both help their employer’s business keep running and to keep getting paid.

Where an employer is not able to continue its business with employees working remotely, the Coronavirus Job retention Scheme will pay employees’ salaries of up to £2,500 a calendar month as long as they are kept on the payroll.

If we need to ask all our employees to work from home in light of the government’s announcement on 23 March 2020, what issues do we need to consider?

The Acas, Working from home guidance summarises the issues to consider, including:

  • Supporting employees to adjust to homeworking.
  • Employers and employees’ health and safety responsibilities, including looking after mental and physical health (see also Are there any homeworking health and safety issues we should consider?).
  • Equipment and technology.
  • Ongoing assessment of homeworking systems and arrangements.
  • Setting clear expectations.
  • Keeping in touch.
  • Pay and terms and conditions of employment.
  • Working from home and childcare.
  • Expenses
  • Insurance, mortgage or rent agreements.


Dealing with the economic impact: changing terms and lay-off

The action an employer should be taking will depend, to some extent, upon the nature of the workplace, the roles carried out and the demographic of the workforce, but some of the issues that employers should consider from an employment law perspective include:

  • The employer’s approach to sick pay in the various scenarios. The employer should consider its contractual sick pay policy, and the practical implications on withholding pay or reducing pay to SSP. The employer will wish to balance the costs of paying full pay where they are not legal obliged to do so with the indirect costs (in terms of spreading the virus and increasing sickness absence) where employees attend work following potential exposure to the virus, or even when exhibiting symptoms of it, in order to continue receiving pay. Some employers are introducing a new right to full pay for a finite period, in circumstances where the employees would otherwise be in receipt of nil pay or SSP.
  • Similarly, consideration should be given to how absence management processes and trigger points may be adjusted to reflect self-isolation and high numbers of diagnosed cases.
  • Whether the infrastructure is in place to allow large numbers of employees to work from home. Is the IT system prepared for a high number of employees to work remotely? Do employees have the hardware necessary to work from home? Will additional guidance need to be issued to reduce demand on the IT systems if many people will be working remotely simultaneously?
  • Compliance with government, PHE and WHO guidance on hygiene in the workplace, and other preventative measures.
  • Some employers are physically separating the workforce into separate units in an attempt to minimise the risk of COVID-19 spreading throughout the whole workforce.
  • Consider appointing a coronavirus taskforce who are responsible for keeping track of developments, updating internal guidance and communicating with workers. Consider whether a dedicated intranet page is required.
  • Clear communication with workers on the employer’s policy on homeworking, work travel and precautionary isolation. Provide regular updates. Ensure that employees are asked to speak to their manager upon return from any overseas travel prior to attending the workplace, and that they are notified of the government’s position on self-isolation as it develops, as well as the employer’s position if more stringent.
  • Ensure that employees have provided up to date personal details.
  • Identify business critical roles and how they can be maintained following the closure of schools and nurseries. Consider what pay employees will receive if they work part-time to fit around childcare, and the benefits of acting flexibly to allow as many employees as possible to continue working. Consider whether the business would be best served by encouraging employees to work flexibly and making that facility available, or by encouraging the use of statutory rights to time off to care for dependants, annual leave or parental leave.
  • Provide clear information to managers on how to deal with an employee who attends work displaying symptoms, or who has potentially been exposed to the virus.
  • Identify any high-risk employees and consider whether there are any potential discrimination implications which mean a more cautious approach is required. Ask employees who have been identified as vulnerable in government guidance to contact their manager to discuss working arrangements.
  • Critically consider whether any domestic and international work travel and events are necessary. Consider whether internal meetings can be carried out through virtual meetings.
  • Where travel is necessary to high risk areas, consider what protective measures should be put in place and ensure that protective equipment is sourced and ordered.
  • Identify the minimum safe level of workers required to continue operating, and how that can be maintained in the worst-case scenario. Identify the point at which the business may need to cease operating temporarily and consider the employment law consequences.


If the workplace temporarily closes due to insufficient numbers of employees being able to attend work, what pay are employees entitled to?

We have assumed for the purposes of this answer that the employer envisages that the closure will be temporary and that it intends to reopen once sufficient employees are able to attend, and any government restrictions allow it to do so. We have also assumed that alternatives to closure (such as finding temporary cover to fill the gaps in the workforce or introducing homeworking) have not prevented the closure.

Those who are already being treated as unable to work due to either self-isolation or diagnosis with COVID-19 will remain on sick leave until they are fit to return to work. At that point, they will be treated the same as the employees who were sent home at the point of closure (discussed below). Appropriate communication should take place to ensure that they are aware of their position, and any transition from sick leave to another form of leave or lay-off.

Any temporary closure of the business will be treated as the employer’s decision and so, in principle, the employees will remain entitled to full pay, unless there is no contractual requirement to offer work (which may be the case for casual employees). This is on the basis that those who are not on sick leave are willing and able to work, and it is their employer’s decision to temporarily close the workplace which is preventing them from performing duties. However, the employer will be able to apply to the Coronavirus Job retention Scheme which will pay employees’ salaries of up to £2,500 a calendar month as long as they are kept on the payroll.

What steps can we take to protect our business if we are forced to temporarily close?

Many employers will be in this situation following the government’s announcement on 23 March 2020. Where an employer is not able to continue its business with employees working remotely, the Coronavirus Job retention Scheme will pay 80% of employees’ salaries of up to £2,500 a calendar month as long as they are kept on the payroll (see Coronavirus Job Retention Scheme.

Other options include:

  • Consulting with employees and trade unions or other representative bodies to try and agree a temporary reduction in pay and benefits for the duration of the crisis. Under normal circumstances, employees and their representatives would be unlikely to agree to such measures. However, where the alternative is closure and job losses, there may be more of an appetite to reach an agreement.
  • Considering lay-off, if the employer has the contractual right to take that approach.
  • Give notice to workers to take holiday. Employers are entitled to give notice to workers to take statutory annual leave, provided there is no contrary contractual right. Although this would not save the employer money in the short term, it would ensure a full workforce once the business reopens and allow full focus on rebuilding the business.
  • Seek volunteers to take unpaid leave Seek volunteers for voluntary redundancy.
  • Consider whether there are workers and contractors whose contracts can be terminated without the risk of an unfair dismissal or redundancy payment claim.
  • If the longer-term impact of the pandemic is likely to mean that a reduced headcount will be required even when the business reopens then the employer may need to consider redundancies..


In what circumstances should the employer consider lay-off and short-time working?

Lay-off may need to be considered in the following scenarios:

  • A downturn in work due to the effect of COVID-19 on suppliers and customers means that fewer employees are required on a temporary basis.
  • Temporary closure of the workplace due to insufficient employees being able to work or the effect of government restrictions.

Short-time working may need to be considered where there is:

  • A downturn in work due to the effect of COVID-19 on suppliers and customers meaning that the business does not need all employees to work their contracted hours.


Government assistance

In the Spring 2020 Budget, the government announced several measures including:

  • Employers with fewer than 250 employees to reclaim SSP paid in respect of the first 14 days of COVID-19-related sickness absence, which will have retrospective effect from 14 March 2020.
  • A 12-month business rates holiday for all retail, hospitality and leisure businesses in England.
  • A Coronavirus Business Interruption Loan scheme.
  • A HMRC Time to Pay scheme and deferring payment of VAT.


On 20 March 2020, the government announced:

  • The introduction of a Coronavirus Job Retention Scheme.
  • The extension of the interest-free period under the Coronavirus business interruption loan scheme from six to 12 months, and that it will be available from 23 March 2020.
  • VAT payments will be deferred in respect of the next quarter and not be due until the end of the financial year.
  • Further measures for medium-sized and large business will be announced next week.
  • To assist the self-employed, the government will suspend the minimum income floor so that they can access Universal Credit at a rate equivalent to the SSP received by employees. Further, self-assessment payments will be deferred until January 2021.


Coronavirus Job Retention Scheme (furlough leave)

The introduction of a new Coronavirus Job Retention Scheme (furlough leave) was announced by the government on 20 March 2020. Under the scheme, all UK employers, regardless of size or sector, can claim a grant from HMRC to cover 80% of the wages costs of employees who are not working but kept on the payroll (“furloughed”), of up to £2,500 a calendar month for each employee. Employers can choose to top up the remaining 20% if they wish.

On 20 March 2020, the Chancellor announced that the scheme will be backdated to 1 March 2020, be open for at least three months and will be extended if necessary. HMRC are urgently working to set up the new system of reimbursement, but the government hopes that the first grants should be paid within weeks.

The scheme will apply in respect of all employees on PAYE, including those on zero-hours contracts. This means that it will cover many workers as well as employees. An ammendment has been proposed which would give the self-employed similar rights.

What does the £2,500 cover?

The COVID-19: support for businesses guidance states employers will be reimbursed “80% of furloughed workers wage costs, up to a cap of £2,500 per month”. The COVID-19: guidance for employees states that the scheme will allow an “employer to claim a grant of up to 80% of your wage for all employment costs, up to a cap of £2,500 per month”.

Rights of other types of workers

Agency workers are entitled to “the same basic working and employment conditions” as employees recruited to do the same job (regulation 5(1), Agency Workers Regulations 2010).

Pay is included as a “relevant terms and condition” and is defined as “any sums payable to a worker of the hirer in connection with the worker’s employment, including any fee, bonus, commission, holiday pay or other emolument referable to the employment, whether payable under contract or otherwise but excluding any payments or rewards [listed in regulation 6(3)].”

The Agency Workers Regulations guidance provides the following non-exhaustive list of pay for these purposes:

  • Basic pay.
  • Overtime pay.
  • Shift or unsocial hours allowance or risk payments
  • Payment for annual leave.
  • Certain bonuses or commission payments.
  • Certain vouchers or stamps with a monetary value.


Are self-employed freelancers entitled to be paid when they are self-isolating?

If the freelancer is a genuinely self-employed contractor, the position is (for the time being) more straightforward than in respect of employees.

Self-employed contractors are not currently entitled to SSP, even if their absence is sickness-related. Whether the freelancer is entitled to any contractual payments for shifts missed due to self-isolation will therefore depend upon the terms of the consultancy agreement relating to payment for non-attendance (if any).

If the freelancer is asymptomatic and therefore in theory able to work, but just cannot attend the workplace, it may be possible for the employer to consider other options such as remote working. This would ensure that the work is completed and the freelancer does not lose income.

The position in relation to payments due to freelancers who are self-isolating may rapidly (and potentially retrospectively) change, since the government is under increasing pressure to ensure that there is no disincentive for anyone to follow the guidance on self-isolation during the pandemic. In the current unpredictable environment, employers would be sensible to monitor all developments closely.

Coronavirus Bill 2019-2021

On 17 March 2020, the government published details of the Coronavirus Bill 2019-2021 and set out proposed emergency legislative measures to address the outbreak (see Department of Health and Social Care: Guidance: What the coronavirus bill will do (17 March 2020)). The legislation will be time-limited for two years. Not all measures will come into force immediately, but they may be brought in when needed. From an employment law perspective, the following measures are of interest:

  • Employees and workers will be able to take emergency statutory volunteer leave in blocks of two, three, or four weeks’ unpaid leave. A UK-wide compensation fund will be established to compensate for loss of earnings and expenses incurred at a flat rate for those who volunteer through an appropriate authority.
  • Changes to SSP to allow for it to be claimed from the first day of incapacity, which will have retrospective effect from 13 March 2020;
  • enable employers with fewer than 250 employees to reclaim SSP paid in respect of the first 14 days of COVID-19-related sickness absence, which will have retrospective effect from 14 March 2020 (see Legal update, COVID-19: SMEs to be reimbursed up to two weeks’ SSP).


Proposed amendment to introduce statutory self-employment pay

The House of Commons Public Bill Committee has proposed an amendment to the Coronavirus Bill 2019-2021 which would require the government to introduce “statutory self-employment pay” for the “self-employed” and “freelancers” equivalent to furlough leave for employees and workers (see Coronavirus Job Retention Scheme (furlough leave)). The amendment proposes that individuals who are self-employed or freelancers would receive a “top-up” to ensure that their net monthly earnings do not fall below the lower of:

  • 80% of their monthly net earnings, averaged over the last three years.
  • £2,917 per month.


Statutory sick pay (SSP) and COVID-19

In order to qualify for Statutory sick pay (SSP) an employee must be absent from work due to incapacity (see Practice note, Sick pay: Eligibility). Where an employee has not, at the point they are suspended, either been diagnosed with COVID-19 or exhibited symptoms, it is unlikely that their absence will meet the definition of day of incapacity. The changes provide that a person is deemed incapable of work where he is:

“(i) isolating himself from other people in such a manner as to prevent infection or contamination with coronavirus, in accordance with guidance published by Public Health England, NHS National Services Scotland(d) or Public Health Wales(e) and effective on 16th March 2020; and

(ii) by reason of that isolation is unable to work.”

In addition, an employee who is in quarantine after travelling abroad, or strongly advised in government guidance to self-isolate, will be regarded as being incapable of working for SSP purposes.

Absence and pay: no symptoms or diagnosis

If the workplace and the nature of the role allow for remote working then this may provide the employer with an alternative to suspension for the purposes of self-isolation (see Homeworking).

There are a range of reasons that an employer may wish to send an employee home to self-isolate. The employer may be acting out of an abundance of caution (in circumstances where government guidance does not suggest that self-isolation is required), the employee may have had contact with someone who has been infected (which may fall within the circumstances in which the government recommends self-isolation), or they may be exhibiting symptoms.

If there is an identified risk that an employee may have been exposed to COVID-19, then it is understandable, in light of an employer’s duty to protect the health and safety of other employees, that the employer would wish to keep that employee away from the workplace until the risk has passed. Ultimately, the employer may regard the risk of allowing the employee to remain at work as outweighing any employment law risk which could exist in suspending them.

Where an employer sends an employee home from work to self-isolate, what pay are they entitled to?

Scenario 1: Employer suspends for reason not falling within government self-isolation advice

Where 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.

Scenario 2: Employer suspends for reason falling within government self-isolation advice

Where an employer is considering suspension because an employee falls within the circumstances in which public health advice is to self-isolate then the position in terms of pay may be different. If the employee falls within the category of people who have been advised in government guidance to self-isolate then they will fall within the new deemed incapacity rules for SSP.

What should an employer do if an employee is living with someone who is suspected to have, or has been diagnosed with, COVID-19?

If a member of an employee’s household is suspected of having, or has been diagnosed with COVID-19, they will need to self-isolate for 14 days. The employee will be deemed incapable for work under the new deemed incapacity rules for SSP. They will therefore be entitled to SSP, or any contractual sick pay which may apply in this scenario.

Where an employee refuses to attend work due to fears about coronavirus, what action can the employer take and what pay are they entitled to?

If the employee can work from home, this may well resolve the issue. If not, the employer would need to consider the current public health advice, the specific reason that the employee is concerned about attending work and whether it would be discriminatory to refuse home working, take disciplinary action, or withhold pay in light of the employee’s refusal.

Where an employee self-isolates following either a direction by a medical professional or government guidance, what pay are they entitled to?

It is assumed for the purposes of this answer that the employee is not exhibiting symptoms and has not been diagnosed with the disease in question, and that they cannot work from home during their self-isolation.

Where an individual self-isolates in response to either direction by a medical professional or government guidance they will be deemed incapable under the new deemed incapacity rules for SSP (see In what circumstances is SSP payable?). They will therefore be entitled to SSP, or any contractual sick pay which may apply in this scenario.

What pay is an employee entitled to where they have mild respiratory symptoms but no diagnosis of Covid-19?

An employee in these circumstances may be treated as being on sick leave and be paid SSP or contractual sick pay. Although their mild respiratory symptoms may not have ordinarily resulted in them taking sickness absence, the fact that they have symptoms likely brings them within either the normal definition of incapacity, or the deemed incapacity provisions.

Social distancing

Where an employee falls into one of the categories the government has “strongly advised” to work from home, can the employer require them to come into work if their role cannot be carried out remotely?

On 16 March 2020, the government issued the Social distancing guidance which “strongly advises” certain categories of vulnerable employees to practice socially distancing measures including working from home and avoiding public transport. Those categories are:

  • 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 include those with chronic respiratory diseases, chronic heart, kidney or liver disease, diabetes and those with a weakened immune system.

The government’s announcement on 23 March 2020 that all members of the public must stay at home, except in very limited circumstances, means that all employees must be permitted to work from home where possible. If the employer is one which is permitted to continue operating (meaning that employees who cannot carry out their work from home are permitted to commute to work) then an employer should consider their position very carefully before requiring an employee to come into work if they fall into one of the vulnerable categories identified. To do so could amount to a breach of the employer’s duty of care to the employee.

Where an employee falls into one of the categories the government has “strongly advised” to work from home, what are they entitled to be paid if they remain at home and it is not possible for them to work remotely?

Affected employees are potentially entitled to SSP or contractual sick pay if applicable. However, unlike self-isolation for seven or 14 days, social distancing for vulnerable employees may be required for many months. Very few employees will be able to afford to receive only SSP long-term and some may put pressure on their employer to allow them back to work. The alternative for employers is to continue to pay the employees full pay. However, this is a difficult situation for employers, many of whom have been adversely financially impacted by COVID-19 already. A potential option for an employer will be to put the employee onto furlough leave. However, the government’s intended purpose for the scheme is to keep employees who would otherwise be made redundant on the payroll (see Coronavirus Job Retention Scheme (furlough leave).

Using annual leave

The normal rules on taking annual leave will continue to apply. Workers may wish to take annual leave as an alternative to scenarios where they would otherwise be 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.

Workers who are not on sick leave can be instructed to take statutory annual leave by their employer, provided that they are given the required level of notice (see Practice note, Holidays: Notice by employer that leave must be taken).

Can an employer cancel a worker’s annual leave?

Employers are entitled to require workers not to take statutory annual leave on certain

What special considerations apply where the employee is pregnant?

Employers have additional duties to protect the health and safety of new and expectant mothers in the workplace. In summary, the law requires employers:

  • To assess the workplace risks posed to new or expectant mothers or their babies.
  • To alter the employee’s working conditions or hours of work to avoid any significant risk.
  • Where it is not reasonable to alter working conditions or hours, or would not avoid the risk, to offer suitable alternative work on terms that are not “substantially less favourable”.
  • Where suitable alternative work is not available, or the employee reasonably refuses it, to suspend the employee on full pay (regulation 16(3), MHSW Regulations and section 67, ERA 1996).

As pregnant women have been “strongly advised” to socially isolate, avoid travelling on public transport and work from home where possible, where the nature of the employee’s role means that they cannot work from home and there is no suitable alternative work available that they could do from home, the employer should consider suspending the employee on full pay

What should an employer do where an employee who is at work starts displaying symptoms?

If anyone becomes unwell with a new, continuous cough or a high temperature in the business or workplace they should be sent home and advised to follow the Stay at home guidance.

At what point should an employer close the workplace?

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

What adjustments to absence management procedures will be required in light of Covid-19 sickness absence?

Employers should be flexible in the evidence of sickness absence they require from employees or workers. For example, an employee in self-isolation is unlikely to be able to obtain a fit note from their GP. On 20 March 2020, the government introduced a new system of isolation notes which employees can use to provide evidence to their employers that they have had to self-isolate due to COVID-19, either because they have symptoms, or because they live with someone who has symptoms.

A further issue that potentially arises is where an employee’s absence (whether because of sickness or because of isolation) triggers action under their employer’s absence management policy. Employers with such policies should consider informing all employees that a period of absence caused by COVID-19, whether because of infection or due to self-isolation in accordance with government guidance, will be disregarded for the purposes of the absence threshold at which formal action is taken under the policy.

Can we change our enhanced sick pay scheme to provide that only SSP is payable in the event of absence due to Covid-19?

  • Employers could seek the written consent of the relevant employees to the contractual change. While employees are unlikely to agree to a change in terms that is not in their favour, they may be willing to do so where their agreement may help the employer stay in business.
  • Dismissal and re-engagement. Where employees are unwilling to consent to a change in their contractual sick pay entitlement, an employer can consider dismissing them and offering them re-engagement on the revised terms. Even if the affected employees accept the new terms, they will be entitled to claim unfair dismissal in respect of the termination (assuming they have the requisite length of service) and wrongful dismissal, if the employer does not give them the required notice to terminate.
  • Unilaterally imposing the change. Employees may respond to a change that is imposed on them unilaterally in a number of ways. They may “work under protest” and bring claims for breach of contract or unlawful deductions from wages (where they are only paid SSP during a period of absence). Alternatively, they may resign and claim constructive dismissal. Where a disabled employee refuses to attend work because of the perceived increased risk because of their disability, medical advice should be sought as soon as possible, from the employee’s GP or occupational health, to confirm or clarify the potential risks and to see what adjustments, if any, should be made to assist the employee in continuing to work. Where the matter is urgent and there is insufficient time to obtain medical advice, employers may wish to err on the side of caution.


On 23 March 2020, the government advised that all employees should work from home wherever possible.

If there is already an established requirement to work from home where appropriate or where instructed to do so (or in the case of a business continuity issue such as a pandemic), then there is unlikely to be an issue in applying that obligation in an effort to contain the spread of COVID-19.

If not, imposing home working would arguably constitute a variation of the contract requiring employee consent. However, where an employee is faced with either being on SSP or nil pay as an alternative, they may well be willing to consent to working from home as a way of preserving pay. There are alternative methods of changing terms and conditions of employment, but in the circumstances and given the time sensitive nature of the COVID-19 outbreak, employee consent is likely to be the most realistic means of validly imposing a home working requirement where none previously existed.

Where home working 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.

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