Coronavirus – Implications for UK Employers1 April 2020

Remote working

The UK Government has now advised that employees work from home (“WFH”) unless the work ‘absolutely cannot’ be done from home – (see here). Employers should look to cancel in-person meetings or events (or, if appropriate, host these using video conference calling technology such as Skype or Loop-up) and consider the practicalities of moving to a system of remote working. It is important that employers, in the first instance, confirm with their employees that it is safe for them to WFH, keeping in regular contact to ensure this remains the case. As an employer’s duty of care extends to the provision of a safe place and system of work for employees, employers should make a concerted effort to check on the mental and physical wellbeing of their staff during this period of uncertainty, sharing ideas and resources for ways to best stay active and connected. Another consideration for employers may be increased vigilance in respect of any IT security breaches, and the protection of the confidentiality of any business information (i.e., ensuring that staff do not share confidential information with household members).

Key Workers

The UK Government has recently issued guidelines in respect of certain critical sectors whose workers fulfil a vital role (“Key Workers”). Where a child has at least one parent or carer who is a Key Worker, they will be prioritised for education provision. Whilst UK schools are now closed indefinitely, children of Key Workers may still attend if they cannot be cared for safely in their homes. There is limited guidance at present as to the best way to evidence Key Worker status for this purpose, but employers could provide pay slips (where employees have not retained copies) or letters of evidence detailing the relevant critical sector and confirming the worker’s position as an employee, where applicable. In some cases, an employee’s role may not fit comfortably within the official definition of a critical sector. Employers should consider whether the employee’s role is necessary to ensure the continuation of an essential public service, in accordance with the UK Government guidelines.

Statutory Sick Pay (“SSP”)

With effect from 13 March 2020, employees now qualify for SSP where they are self-isolating, even where they have not been diagnosed with Covid-19 or displayed symptoms. The regulations bring those in self-isolation within the remit of the definition of ‘incapable of work’ for the purposes of SSP. Small-and medium-sized businesses (those with fewer than 250 employees as of 28 February 2020) will be able to claim a refund of up to two weeks’ SSP per eligible employee.  SSP also now applies from the first day of the employee being ‘incapable of work’.

What other financial support is available to businesses in the UK?

Employees

The Coronavirus Job Retention Scheme (“CJRS”) will allow all UK employers to continue paying a portion of their employees’ salary, where those employees would have otherwise been laid off, or made redundant. Employers wishing to benefit from the CJRS should first identify the relevant employees (“Furloughed Workers”), notify them accordingly, and keep them on the payroll. HMRC will, subject to a cap of £2,500 per month, reimburse 80% of the cost of Furloughed Workers’ wages (the employer may then choose to ‘top up’ the employee’s salary to the full amount, but is not obliged to do so). In contrast to the financial provision for the self-employed detailed below, workers are not able to undertake any work whilst Furloughed. Employers must also bear in mind that changing an employee’s status to Furloughed Worker is likely to require the consent of the employee, unless there is an express right in the employment contract to temporary lay-off (given that any such measure remains subject to existing UK employment law). The scheme will operate through an online portal established by HMRC and is open to all UK employers, including public authorities, recruitment firms, and charities (and, in respect of employee eligibility, is open to all those who have been on the payroll since 28 February 2020, encompassing those on flexible or zero-hour contracts). If an employee who was made redundant since 28 February is rehired, they are also eligible for the purposes of the CJRS. As above, it is imperative that the employee does no work at all for the employer (i.e., the scheme does not extend to those employees whose hours have been reduced).