The TSP Employment Law team answer the questions that many employers may have as they adapt to the evolving Coronavirus situation and explain what information we are still waiting for.

Who should be at work / who should not be at work?

In Work

  • Aside from those key workers in health & food services etc. those who cannot work from home i.e. for those for whom working from home (WFH) is impossible, rather than not as efficient. The manual worker or systems manager whose tools, systems, duties etc. are location specific, can attend work.
  • There has been some debate about the rights and wrongs of this with some ambiguity coming from government. However as things stand, if one literally cannot WFH, they can go to work.

Not at Work

  • Those who can WFH. It may be that they are not as efficient but if work can be done from home, one should not go to work. Businesses have been working hard to put systems in place to facilitate homeworking and communicating to their customers and clients new ways of accessing their goods and services.
  • Those who are ill, self isolating, living with someone who is ill or who are “high risk” should not go to work.  For up to date advice, view the NHS guidance here.

What should I pay staff not at work?

  • Those who are ill, self isolating, living with someone who is ill or those who are high risk should be treated as though they are on authorised sick leave and paid accordingly in accordance with your business’ sick pay policies. From 13 March, Statutory Sick Pay (SSP) can be recovered from day 1 for employers with fewer than 250 members of staff.  More information can be found here.
  • Those who are WFH should continue to be paid on the usual way.
  • Those who do not want to come to work.
    • Ultimately, this may be a case of unauthorised absence. In usual circumstances, this might justify disciplinary action however the outcome any disciplinary action is subject to the principles of reasonableness. While absence might be unauthorised, it may not be unreasonable in the circumstances. 
    • Pay options include unpaid leave, paid holiday (if available) or discretionary pay.

The Coronavirus Job Retention Scheme and the new concept of “Furlough”

What?

  • Under the Coronavirus Job Retention Scheme, all UK employers will be able to access support to continue paying part of their employees’ salary for those employees that would otherwise have been laid off during this crisis.
    • HMRC will reimburse 80% of furloughed workers wage costs, up to a cap of £2,500 per month. HMRC are working urgently to set up a system for reimbursement. Existing systems are not set up to facilitate payments to employers.

What Does “Otherwise Have Been Laid Off Mean”?

  • Either redundant; or
  • At risk of being laid off (i.e. denied work but paid agreed guarantee/lay off payments) due to a temporary downturn in business. Few modern employment contracts contain express lay off provisions; many employers have been negotiating lay off terms with staff in the past few days.
  • It is crucial that ‘furloughed’ workers do no work, so that they will qualify under the Job Retention Scheme. This is because although furlough is an alternative to redundancy, it still requires their work to have ceased or diminished (in line with the usual redundancy criteria).

Who?

  • All UK businesses are eligible.

How?

  • You will need to designate affected employees as ‘furloughed workers,’
  • Notify your employees of this change.
  • Submit information to HMRC about the employees that have been furloughed and their earnings through a new online portal (HMRC will set out further details on the information required).

BEWARE of what we don’t know….

  • Are only employees eligible? What about Workers who provide personal services under contract but who are not self employed? TBC.
    • Changing the status of employees remains subject to existing employment law and, depending on the employment contract, may be subject to negotiation, N.B. if you seek to Furlough on reduced pay.
    • How is 80% calculated, by what reference period if not by reference to contractual basic salary? N.B. holiday pay is calculated by reference to the average pay over the previous 12 weeks.
    • Can employees dip in and out of Furlough? Probably not, by reference to the comment that those to whom this scheme applies are ones that would otherwise be laid off. This suggests that they must be surplus to current requirement as opposed to there being a desire/need/preference for flexibility.

What else is available?

  • Work is being done to come up with a proposal for the self employed who are not eligible for specific assistance yet.
  • If your business needs short term cash flow support, you may be eligible for a Corona Virus Business Interruption Loan. You can find more information here.

For all legal advice please be in touch with your usual contact at Thompson Smith and Puxon, or for advice specifically about the employment of staff and workers, please email or call: