CORONAVIRUS AND EMPLOYMENT LAW – AN UPDATE

In the update which I wrote on Monday 23rd March, I explained about the furlough scheme – the government provisions to help businesses with employees to weather the Coronavirus crisis. Further details of the scheme are emerging; the purpose of this newsletter is to give you the most current information, although you will understand that not all of the details are yet available.

I will be preparing a more detailed fact sheet to send out later today to anyone who would like it. Details of how to request this are at the end of this post.

A Few General Points

Statutory sick pay for employees who are suffering the symptoms of Coronavirus will be payable from day one, not from day 4 as is usual; the pay is likely to be backdated.

An employee who is staying at home to isolate in line with Public Health England advice, will be entitled to sick pay on this basis. At present, that covers people who have symptoms, but not people who are isolating to avoid the risk of catching the virus. Those who wish to receive sick pay for isolating, will need to get an isolation note from NHS 111.

If your employees have company sick pay entitlement, I will be able to advise on whether you are required to pay this in individual cases.

If you have employees who are pregnant, you will need to decide what the risk is to those employees. I can advise on how you should deal with that risk in individual cases.

The position where an employee self isolates when there is no medical need (i.e. when they do not have coronavirus symptoms or have not been in contact with the virus) is a little complicated. An employee in those circumstances would not be eligible for statutory sick pay. Again, this is a situation where you should seek advice on your individual situation, as much will depend on the circumstances.

Some employers think it would be acceptable simply to dismiss employees for reason of redundancy, but this can be risky if the work place is not in fact closing, and the need to send employees home is only temporary. Larger employers would also need to consider their obligation to carry out collective redundancy consultation.

The Furlough Scheme

Hopefully, many of these questions will be addressed by the use of the furlough scheme. As I explained in my previous update (if you have not received this, please email me and I will send it to you), this is a scheme whereby 80% of a furloughed employee’s salary will be reimbursed by HMRC to the employer. The employer will need to designate the employee as furloughed and input the details into the HMRC portal. This is not yet ready and is unlikely to be so for 6 to 8 weeks. We are told it will be backdated to 1st March. It seems that employers are being advised to take out loans to fund this in the meantime, which is in itself causing problems.

Note that employees will need to agree to be furloughed and it is advisable to require them to sign a formal agreement. It is thought that most employees will agree, because the alternative is to be laid off with no pay.

Please see my earlier update in relation to how the £2,500 cap on salary works. It seems that the £2,500 is the 80%, and so equates to a gross monthly salary of £3125.

The questions which arise with which I can assist, include what factors you may consider when deciding whom to furlough, how you can incentivise those who are left working whilst their colleagues stay at home on 80% of their salary, and what HMRC is likely to do to prevent abuse of and fraud on the system.

A question which I have been asked several times already, is whether employers can require employees to take holiday during furlough, so that the government pays 80% of the holiday pay, and the employee uses up his holiday entitlement. The short answer to that is yes, but you must follow a specific procedure.

As you can see, some of the details of the furlough scheme are still a little vague. This is not surprising, as the government is having to draft and enact in a very few weeks, laws which would normally take about 2 years to reach the statute books.

I will be preparing a more detailed factsheet about the furlough scheme, with the most up to date information. Please email me if you would like me to send you this when it is available.

If you need advice about a specific issue, please contact me by email or call me on 07717 281317.