Covid-19 presents an unprecedented challenge to the employment sector. This article offers a legal perspective on some of the key issues HR professionals will face in the light of the pandemic.
Can an employer disclose that an employee has coronavirus? Employers should be mindful of the data protection implications of disclosing that an employee has Covid-19. This relates to an individual’s health and so is ‘special category data’ – it can only be processed in limited circumstances. Employers can disclose that there is a case of coronavirus in the workplace but the individual employee’s identity should not be disclosed. The ICO has confirmed it will take a pragmatic approach to enforcement.
What are the data protection implications of home working?
Employers are now obliged to facilitate homeworking where possible. Employers should have regard to the increased data protection risks and note that the protection of personal data will remain the employer’s statutory obligation under GDPR, regardless of whether it is being processed onsite or from an employee’s home. Consideration should be given to the shredding of confidential files, home security and video conferencing – is it secure? Now is a good time to review data protection policies.
The Job Retention Scheme. What is it and when does it apply?
The new Job Retention Scheme (JRS) provides government funding to employers so that they can retain employees where the business has been seriously affected by the coronavirus. The JRS will run from 28 February 2020 (it is backdated) for 3 months and may be extended if necessary.
The JRS applies to all UK employers and all employees (and some workers) on the PAYE scheme. Employees who were made redundant on/after 28 February 2020 may be re-engaged and placed on furlough. The minimum furlough period is 3 weeks – there is no maximum period.
A key feature of the JRS is that the contract of employment subsists – the terms and conditions and continuity of employment are unaffected. Employees cannot undertake work for their employer whilst furloughed but may be called back by their employer without notice.
How to furlough an employee
To action the JRS, employers should consult and upon agreement designate the employee as a furloughed worker. There does not need to be any formal redundancy style selection, but employers should be careful not to base criteria for selection on any of the protected characteristics. A letter should be issued, confirming furlough and requesting written confirmation of consent – this is particularly important because furlough will usually alter the contract of employment. Where an employer intends to vary the contract of 20 or more employees, collective consultation may be triggered. This may be operationally difficult at the moment – it may be possible to circumvent consultation by using the special circumstances defence.
The employer will then submit information to HMRC through the new online JRS portal. HMRC will reimburse 80% of the furloughed worker’s wage, capped at £2,500 per month. The employer may agree to pay the remaining 20%.
The introduction of JRS has created a host of complicated issues, many of which are outside of the scope of this article, including furlough rotation, TUPE and employees on maternity/paternity leave. Employers are recommended to take legal advice before furloughing employees.
New statutory sick pay (SSP) regulations are now in force and provide that SSP is payable: from day one of sickness, rather than day four; for self-isolating employees who are, or live with someone experiencing Covid-19 symptoms; for self-isolating employees instructed to do so by a doctor or NHS 111
Employers should note that SSP does not currently apply to employees who received the ‘stay-at-home’ letter, but who are unable to work from home. However, ‘shielded’ employees may instead be furloughed.
These measures are to have retrospective effect for SSP already paid by employers in relation to periods falling on/after 13 March 2020. SSP will be temporarily reimbursed to all SMEs for coronavirus-related absences for up to 14 days.
Employees may self-certify for the first seven days and thereafter can get a sick/isolation note from NHS 111. In light of the anticipated pressure on the NHS, the Government have advised employers to be flexible in relation to the medical evidence they require under their sick pay policies.
The impact of these regulations on contractual sick pay (CSP) is less clear. Employers may consider a more lenient approach in applying CSP requirements, although contractually there may be no requirement to pay employees who are not sick.
Time off for dependents
All employees can take time off work to look after dependents. This provision is intended for short periods of absence and there is no statutory right to be paid. There may be a contractual right to pay in this circumstance, if provided for in the contract of employment or employee handbook. The default position may change.
Can an employer require an employee to take annual leave at a particular time? Yes – the employer should give notice specifying when the required period of paid annual leave will be, and should be twice as many days as the annual leave period required. For example, an employer requiring the employee to take 5 days’ annual leave must give 10 days’ notice. This position is subject to any alternative agreement in the contract of employment.
What are the implications of furlough on annual leave?
Current government guidance on the JRS has not yet addressed annual leave with any clarity. Given that the employment contract subsists, it is likely that annual leave will continue to accrue and potentially be taken during furlough. There are more complicated issues around what pay would be due during holiday on furlough. Pending further clarification, the risk for employers is that they place employees on furlough and by interrupting it with holiday, they lose the right to reimbursement.
How much annual leave can employees now carry forward?
New emergency measures to extend the carry-over period will amend the Working Time Regulations 1998. Employees (and some workers) may now carry forward up to 4 weeks’ unused leave into the next two leave years, where it has not been ‘reasonably practical’ to use leave due to coronavirus. This will hopefully avoid operational issues for employers and protect employees’ rights. Additionally, where an employee’s employment is terminated, pay in lieu must include carried-over leave.
Emergency Volunteer Leave
Emergency Volunteer Leave (EVL) permits employees to take temporary leave from work, to volunteer for health/social care services during the coronavirus pandemic. It effectively creates a temporary new form of unpaid leave.
The government will set cyclical ‘volunteering periods’ of 16 weeks, within which individuals may undertake volunteering in blocks of 2, 3 or 4 consecutive weeks. Volunteers will be issued an ‘emergency volunteering certificate’ by an appropriate authority (including the local authority and NHS), which will specify the details of their volunteering duties.
During the period of leave, the employee’s terms and conditions of employment will subsist, except those in relation to pay. The government will compensate volunteers for loss of earnings, travel and subsistence. Employees are protected from detriment for taking leave and their seniority, pension and qualifying period of employment will be unaffected.
Conducting disciplinaries remotely
In principle, most disciplinary hearings should be able to go ahead as scheduled via videoconferencing, telephone or even via written submissions. An employer must ensure that a fair process is followed. Some key considerations may include:
Is the employee fit to attend?
Does the employee have the capacity to undertake the hearing from home, with consideration given to childcare requirements, lack of equipment…?
The need for a timely resolution.
The seriousness of the issue – suspension may be necessary in very serious disciplinary cases.
The organisation’s internal policies/procedures.
If in doubt, apply the basic rules of natural justice that an employee must know the case against them and be given a chance to state their case in the light of that.
Employers’ ongoing legal duties
Employers should have regard to their ongoing legal duties, in particular:
The Health and Safety at Work etc. Act 1974 and associated legislation – this applies equally to homeworking. Employers should consider carrying out electronic risk assessments. The common law duty of care and the express and implied terms in their employees’ contracts of employment, specifically the duty of trust and confidence.
The Equality Act 2010, in particular to employees’ protected characteristics and the positive duty to make reasonable adjustments for disabled employees. Failure to comply with the above duties might lead to claims of personal injury, unfair dismissal and/or discrimination.
Please note that the information contained in this article is a summary of the law and should not replace legal advice. Stone King LLP’s team of solicitor and HR consultants are operating business as usual and will continue to support our clients fully through the Coronavirus pandemic.