COVID-19: Our Most Popular HR and Health & Safety Questions Answered
Our HR and Health & Safety teams are seeing an unprecedented amount of calls regarding COVID-19. As the situation is changing every day, it’s inevitable business owners are confused, stressed and worried as these are uncertain times for us all.
However, throughout the COVID-19 outbreak you need to ensure that the action your business takes is legal and compliant.
Here’s everything you need to know about our most popular topics: sickness, self isolation, lay offs, risk assessments and hygiene measures.
HR/ Employment Law Sickness / Self-isolation
Employees should follow Government guidance for when self-isolation is necessary and take medical advice if they need to. The advice on who should do so escalated on 16
th March, please ensure you check the latest guidance, which includes specific information on high risk individuals.
If an employee must self-isolate, they will be entitled to Statutory Sick Pay. It may not be possible for the employee to provide a sick note in the current circumstances, as an employer you can agree to waive the usual requirement.
Currently, the Government have assured that SSP can be paid from day 1 and that they will reimburse SSP to small businesses for the 14 days which staff need to self-isolate.
If you decide as a business that you wish to send someone home due to your own concerns on risk, you would be required to pay them.
Lay Off / Short Term Working
If your business is affected by a downturn of work because of COVID-19 you may have to review your staffing levels and consider temporary lay off or short time working. You need to ensure that lay off / short time working clauses are included in your employee’s contract of employment or handbook. During a lay off period, staff are only entitled to be paid £29 per day for the first 5 days. Following the first 5 work-less days, staff aren’t entitled to any pay thereafter. Lay off’s aren’t permanent and if work does not pick back up, alternative arrangements need to be made.
Please note: From April 7th 2020 it will increase to £30 per day and therefore £150 for the 5 days.
You need to ensure that you have a justifiable reason and selection process for your company lay offs.
If you don’t have a lay off / short time working in your employee contracts or handbook then you would need to enter consultation to vary the terms and conditions of employment to allow you to invoke lay off.
Furloughing Your Employees
This information has been updated following further guidance received from the Government on 4th April 2020 and replaces all previous guidance.
The Government announced a job retention scheme on Friday 20th March. This is known as ‘Furlough Leave’, which is term used often in American employment law to describe a planned period of time off work (such as a factory shut down). The term is not currently a feature of UK employment law.
It is a similar concept to lay off – that being work has ceased or diminished but hoped at some point to return, so rather than make staff redundant, they can place on Furlough Leave.
This has NOT yet been introduced but it is envisaged emergency legislation will go through shortly.
There is a lot to cover so we appreciate this is lengthy but it will deal with your main concerns.
Everything we know so far is detailed below:
When does it start?
1 March 2020, for 3 months but this will be kept under review and may be extended. It is hoped that HMRC will have the scheme and online portal launched by the end of April.
What is it?
The online portal will allow you to claim for 80% of furloughed employees’ usual monthly wage costs, up to £2,500 a month, plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that wage.
Can my company claim?
Any UK organisation with employees can apply, including:
· recruitment agencies (agency workers paid through PAYE)
· public authorities
Can I claim for all my employees?
You must have created and started a PAYE payroll scheme on or before 28 February 2020 and have a UK bank account. This means that new starters from 28th February onwards, will NOT qualify.
They can be on any type of contract, including:
· full-time employees
· part-time employees
· employees on agency contracts
· employees on flexible or zero-hour contracts
What if I already made staff redundant?
The scheme also covers employees who were made redundant since 28 February 2020, if you reinstate them. Our advice is that you contact them, reinstate them back onto the payroll and you will be able to claim the 80% backdated to 1st March.
What work can the employee do whilst on Furlough?
The employee can not undertake work for or on behalf of the organisation. This includes providing services or generating revenue.
If an employee is working, but on reduced hours (such as short time working), or for reduced pay (if you have agreed wage reductions), they will not be eligible for this scheme and you will have to continue paying the employee through your payroll and pay their salary subject to the terms of the employment contract you agreed.
Employment and contractual status – what do I do?
As per our previous advice. If you have a lay off clause in your contracts/handbook, you already have the right to send staff home without pay (save for statutory guarantee pay) in the event of a temporary cessation or shortage of work. Therefore, agreeing Furlough leave should be straight forward as the alternative is no pay.
You should discuss the situation with your employee and provide them with our suggested Furlough Leave Agreement. You must confirm furlough in writing with the employee and keep a record of the communication for 5 years.
If you do not have the contractual right to lay off, this will be a matter of negotiating with your employees to reach an agreement. Consider what the alternatives will be if they do not accept this – that being that the scheme is designed to retain jobs. So in the absence of agreement, it may jeopardise the future stability of the company and mean job losses.
If you are seeking to vary the terms and conditions (i.e. because you do not have a lay off clause) and this affects more than 20 staff. You may have to consult collectively. This would ordinarily mean the election of representatives and a 30- or 45-day consultation period depending on the number of employees. There is an exception to this where ‘special circumstances’ apply. The current climate is likely to provide those circumstances if you can show it was not reasonably practicable to comply. You will need to show that you did all you could to comply in the circumstances. So this may be at least some discussion at the minimum.
How do I decide who I Furlough?
It may be that you have had to close your business, in which case all employees may have to be placed on Furlough. Bear in mind that there can be no work undertaken by those that are on this leave.
However, you do not need to place all your employees on Furlough if there is still work to be done.
Normal employment rules apply in terms of selection of those to place on leave. If one whole department has no work but everyone else has work, there is no problem in only selecting that department.
If it is the case that you need to select a skeleton staff from a similar group of employees, you should have some method of selection. Given you will need to act quickly to address the drop in work, choose as objective criteria as you can to ensure equality and that no one is treated unfairly – both from a view of avoiding discrimination but also trying to maintain employee relations.
It may be that you choose only the highest performers, if you have tangible evidence of the same. As long as you can demonstrate some objective method to your decision.
Can I rota who is on and off Furlough?
Yes. The minimum period of Furlough leave is 3 weeks and you will be able to rota employees on and off Furlough subject to that 3 week period.
What about those already on leave?
Employees on unpaid leave cannot be furloughed, unless they were placed on unpaid leave after 28 February.
What about Statutory Sick Pay?
Employees on sick leave or self-isolating should get Statutory Sick Pay but can be furloughed after this.
Same for shielding?
Employees who are shielding in line with public health guidance can be placed on furlough if they are unable to work from home and you have no other work for them.
My employee has two jobs, can I still Furlough?
Each job is separate, and the cap applies to each employer individually. So, if they already had two jobs, this is not a problem and you can treat them the same as any other employee.
They will be permitted to get a new job whilst on Furlough leave from you – providing that your contracts of employment permit this.
My employee volunteers?
A furloughed employee can take part in volunteer work or training, as long as it does not provide services to or generate revenue for, or on behalf of your organisation.
Other types of leave
If your employee is eligible for Statutory Maternity Pay (SMP) or Maternity Allowance, the normal rules apply, and they are entitled to claim up to 39 weeks of statutory pay or allowance.
If you offer enhanced (earnings related) contractual pay to women on Maternity Leave, this is included as wage costs that you can claim through the scheme.
The same principles apply for all other types of leave.
Can employees still take annual leave?
This is still not completely clear, however, it is envisaged that the answer will be yes. The employee would be entitled to full pay for their holiday but you would claim the 80% in the normal way.
It may be that you choose to cancel annual leave due to cash flow. This is possible as long as you provide the employee with twice as much notice as the holiday you need them to cancel – for example, 2 weeks for a 1 week holiday.
Employees continue to accrue leave during the Furlough period so bear in mind that at the end of all this, employees will still have leave to take later in the year. This could create a bottle neck so you may wish to consider how you spread leave out when employees return. See below regarding the amendment to carrying holidays over.
What do I claim?
The HMRC grant will cover the lower of 80% of an employee’s regular wage or £2,500 per month, plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that subsidised wage. Importantly – fees, commission that must
contractually be paid to the employee CAN now be included in the claims. Discretionary bonus (including tips), discretionary commission payments and non-cash payments are not included.
At a minimum, you must pay the employee the lower of 80% of their regular wage or £2,500 per month. You can also choose to top up an employee’s salary beyond this but is not obliged to under this scheme – subject to you entering into the Furlough Agreement as stated above.
HMRC will issue further guidance as to how you calculate your claims for Employer National Insurance Contributions and minimum automatic enrolment employer pension contributions, before it is launched.
My employees has variable hours, how do I work it out?
If your employee has been employed (or engaged by an employment business – i.e., a recruitment agency) for a full twelve months prior to the claim, you can claim for the higher of either:
· the same month’s earning from the previous year
· average monthly earnings from the 2019-20 tax year
If your employee has been employed for less than a year, you would claim for an average of their monthly earnings since they started work.
If the employee only started in February 2020, use a pro-rata for their earnings so far to claim.
Employer National Insurance and Pension Contributions – do I still pay them?
Yes. All employers remain liable for associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on behalf of their furloughed employees.
If you choose to provide top-up salary in addition to the grant, Employer National Insurance Contributions and automatic enrolment contribution on any additional top-up salary will not be funded through this scheme. Nor will any voluntary automatic enrolment contributions above the minimum mandatory employer contribution of 3% of income above the lower limit of qualifying earnings (which is £512 per month until 5th April and will be £520 per month from 6th April 2020 onwards).
Will I be in breach of National Living Wage/National Minimum Wage?
No as the Furloughed employees are not working and have entered into the agreement.
However, if workers are required to for example, complete online training courses whilst they are Furloughed, then they must be paid at least the NLW/NMW for the time spent training, even if this is more than the 80% of their wage that will be subsidised.
What will I need to make the claim?
Subject to our advice above on consulting staff on entering into a Furlough Agreement;
To make a claim via the HMRC portal, you will need:
· your ePAYE reference number
· the number of employees being Furloughed
· the claim period (start and end date)
· amount claimed (per the minimum length of Furloughing of 3 weeks)
· your bank account number and sort code
· your contact name
· your phone number
HMRC are reserving the right to retrospectively audit your claims and it’s therefore important you comply with the guidance and forthcoming legislation. Whilst we do not yet know, it is likely there may be penalties for making fraudulent claims.
Any queries regarding the calculations and mechanics of the portal and necessary information must be directed to HMRC. ELAS will be unable to answer specific questions regarding such information.
When do I claim?
As soon as the portal is up and running. You can only submit one claim at least every 3 weeks, which is the minimum length an employee can be Furloughed for. Claims can be backdated until the 1 March if applicable.
HMRC will pay it via BACS payment to a UK bank account.
What do I do when the scheme ends?
We would hope that if we are through the worst, your business can re-open/work will pick up. If this is not the case and no further government scheme is available, you will need to review your staffing levels and this may result in redundancies.
If you engage self employed contractors, they can now avail of similar scheme but they will need to check the details and make claims themselves.
New Annual Leave Announcement
Plans have been announced to amend the Working Time Regulations to relax the rules on carrying over holidays.
Workers who have been unable to take their statutory annual leave entitlement due to COVID-19 will now be able to carry it over into the next 2 leave years.
The regulations will allow up to 4 weeks of unused leave to be carried into the next 2 leave years, easing the requirements on employers to ensure that your staff take at least the statutory amount of annual leave in any one year.
The idea is to assist those that cannot currently take leave due to the virus – such as in the food industry and health and social care and preventing them from losing leave and from employers having a back log of leave at the end. However, it will apply to everyone
Health & Safety Hygiene Measures R ecommended: Wash hands for 20 seconds at a time as well as more frequent than normal Catch any coughs and sneezes in tissues and dispose of immediately If possible, carry hand sanitiser with you at all times Frequently clean and disinfect objects and surfaces that are touched regularly Avoiding close contact with anyone suffering from a cough, cold or is generally unwell Keeping 2 metres apart from everyone you come into contact with Social distance as much as possible
COVID-19 Risk Assessments
Under health & safety legislation it’s your responsibility to ensure the health and wellbeing of your team. We recommend that you introduce a COVID-19 risk assessment which you can continuously review as the situation changes. Your risk assessment should include:
Any risks your employees face as a result of working for your company The persons at risk Existing risk controls in place A risk evaluation key Any further action that is needed
Further information can be found direct on the below websites: