For further advice, NFU Employment Service members can contact our Employment Specialists on 0370 840 0234.
Guidance and information is changing regularly, contacting our Legal Helpline will ensure that you are receiving advice on the current legal and best practice position.
Click on a question to show its answer.
Employees should be reminded about good hand hygiene and you should ensure that there are adequate washing facilities available for all to use. The NHS have produced guidance on the most effective and best way to do this: https://www.nhs.uk/live-well/healthy-body/best-way-to-wash-your-hands/
As an employer you have a duty to ensure the health, safety and welfare of all your employees and to provide a safe working environment. As coronavirus is most likely to spread from cough or sneeze droplets, you should follow and share the NHS advice:
As the situation is changing all the time with more news and guidance, it is very much a case of “watch this space”. Employers should be communicating with their workforce about what steps are being taken and ask employees to tell them if they are planning to travel to or have returned from affected areas or have come into contact with others who have, or if they have any symptoms etc.
Acas have issued guidance for employers: https://www.acas.org.uk/coronavirus. This is now being reviewed daily and updated as necessary.
There is also NHS guidance available for anybody concerned about steps they can take to look after themselves and others: https://www.nhs.uk/conditions/coronavirus-covid-19/.
The Government have produced guidance and advice for the public which is updated daily at 2pm: https://www.gov.uk/guidance/wuhan-novel-coronavirus-information-for-the-public
There is also a summary webpage the Government have: https://www.gov.uk/government/topical-events/coronavirus-covid-19-uk-government-response
In addition a new email alert service has been set up for the public to sign up to:
https://www.gov.uk/email-signup?link=/government/topical-events/coronavirus-covid-19-uk-government-response
If self-isolation is necessary there is guidance on who should self-isolate and how to do this properly as it involves more than simply staying at home:
https://www.nhs.uk/conditions/coronavirus-covid-19/self-isolation-advice/
The Prime Minister or other senior ministers will be making daily televised broadcasts with any updates on guidance or law changes.
In addition there is online guidance specifically for employers and businesses here: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19
One of the key pieces of advice is to keep in contact with your employees no matter what reason they may be away from the workplace, so that you can keep them updated with any developments or changes affecting their employment and to offer support where you are able to do so.
If an employee is unwell at work and displays symptoms of the coronavirus, they should call the NHS 111 service or use the NHS Online Coronavirus service: https://111.nhs.uk/service/COVID-19/ for further advice. The NHS 111 service should only be used where support is not available online. Do not send them home straightaway but try to keep them in isolation from other workers until NHS 111 have advised.
Your normal sick pay entitlements will apply in both of these cases.
If there are no alternatives such as home working or agreeing to take holiday or giving advance notice of holiday, and you tell your employees not to attend work as a precaution even though there may be work available, then they will be entitled to their full pay for the period of closure. In some very limited cases there may be an express right in their contract of employment to send employees home without pay but this will depend upon the exact wording in the contract, so it is essential that you take advice from the Helpline before deciding not to give full pay.
This should be treated the same as any other work shortage and you should look at whether you have the right to implement short terms solutions such as lay-off or short time working or more longer term plans such as redundancy. The Helpline can provide advice and there is detail on our website concerning redundancies.
You could also consider making use of holiday, either by agreement or by giving advance notice where this is possible. Employers have the right to require employees and workers to take annual leave at a specific time, so long as they have given twice as much notice as the amount of leave they want them to take. Agreed flexible working may also help matters.
For more information about whether you operate a business which the Government have forced to close please see https://www.gov.uk/government/publications/further-businesses-and-premises-to-close
The Government have announced a new Coronavirus Job Retention Scheme (CJRS) where employers can agree with their employees to change their work status to a furloughed worker. The Government will provide financial support for employers who do this. This is a new concept in UK employment law but it means the employee is on a period of leave. This is expected to last for three months but will be kept under review. Unless there is an express lay-off clause within the contract, your employee would need to agree to change their status which should then be documented in writing with detail of how this impacts the rest of their contractual entitlements. During this time, the employee would not be able to do any work for you.
Please see our separate guide on furlough leave.
If you have already taken steps to lay-off or make your employees redundant prior to the announcement of the Coronavirus Job Retention Scheme on 20 March 2020, then it may be possible to reinstate those workers with their agreement as furloughed workers so long as they were on your payroll at 28 February 2020.
Please see our separate guide on furlough leave .
However if you decide not to use the Coronavirus Job Retention Scheme and feel that there is a business need to look at whether you have the right to implement short terms solutions such as lay-off or short time working or more longer-term plans such as redundancy, the Helpline can provide advice on this. Employers should remember that a redundancy is still classed as a dismissal and will therefore need to be able to demonstrate that a dismissal is within a range of reasonable responses under the circumstances. Employers should carefully consider the decision in making redundancies where they may be able to make use of the CJRS.
An issue that has been raised regarding workforce was around the apparent need to close workplace canteens, creating a risk that workers might leave their workplaces and go to food shops to buy food, with a greater potential to spread the virus. Lobbying on this front has generated a refinement of the government’s position. The guidance now states that:
“Where there are no practical alternatives, other workplace canteens can remain open to provide food for their staff and/or provide a space for breaks. However, where possible, staff should be encouraged to bring their own food, and distributors should move to takeaway. Measures should be taken to minimise the number of people in the canteen at any one given time, for example by using a rota.”
Proper precautions will be essential as indicated to ensure that the risk of spreading Covid 19 is properly managed.
Measures are being announced regularly but as this situation is so fluid the Government are only giving an indication of the fact that there will be financial help for businesses, the precise detail of the help or how to obtain it has not been finalised. So far the following has been announced:
When there is more detail we will update you but for now concerned employers should refer to the Government website: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19
Normally annual leave must be taken in the holiday year in which it has been accrued with no right to carry it forward to another year, subject to limited exceptions such as sick leave or family friendly leave. Due to the impact of the coronavirus on employers, the Government have announced it's plans to amend legislation so that all workers who have not been able to take all of their annual leave due to the coronavirus pandemic, will be able to carry up to 4 weeks of leave over into the next two leave years. The Working Time (Coronavirus) (Amendment) Regulations 2020 will allow this carry forward where it is not reasonably practicable for them to take some or all of their leave due to coronavirus. It is already possible to carry forward 1.6 weeks’ worth of leave into the following leave year by agreement and this remains unchanged by the new regulations.
Bank holidays can be included in the 4 weeks carried forward. If an employee leaves employment during the two years where leave has been carried forward, they will be entitled to receive a payment in lieu of the balance of leave owing.
If a job offer has been made by you and accepted by the new employee there will be a valid contract made, subject to the terms of the letter, including if the offer has been conditionally made. In these circumstances there would be no right to withdraw the offer and if your circumstances have changed and you are no longer in a position to take on any new workers then you will need to give notice to end the contract otherwise there would be a risk of breach of contract claim. It’s likely that the value of such a claim would be limited to the notice period which would have been needed to have been given to end the contract. How much notice or payment in lieu of notice you will need to give will depend on what has been agreed as part of the offer. Where there are no express contractual notice provisions it may be implied that reasonable notice should be given, to avoid the risk of a claim. In many cases one week would be deemed to be reasonable.
In some cases a job offer may have been made and accepted but no start date yet agreed. Here it might be appropriate to try to and agree to set a start date later on in the year. Where you are able to do this, make sure it is documented and clear that they will not be eligible for any payment or other benefits of their contract of employment until they start work for you.
Where a start date has been agreed it may also be possible to negotiate a later starting date, and again where this is agreed ensure it is documented and clear that they will not be eligible for any payment or other benefits of their contract of employment until they start work for you.
You will not be able to designate these future employees as furlough workers and claim on the CJRS scheme as they will not have been on your payroll from 28 February 2020.
If a job offer has not been accepted then it will usually be safe to withdraw so long as this would not be in breach of any conditions of the offer, such as the offer being available for a set period of time.
When withdrawing a job offer or agreeing on new start date or other points relevant to the offer it will be best practice to give your reasons as relating to coronavirus in order to avoid any discrimination claims.
The latest Government guidance is to allow this where possible, this does not mean it has to be put into place. It is not going to be possible in all cases and for now, where home working is not an option then it is still possible to run your business from your usual place of business, subject to the general advice about keeping a safe working environment unless you are a business the Government have forced to close.
The government has publicised its list of key workers which includes those involved in food production, processing, distribution, sale and delivery as well as those essential to the provision of other key goods (for example hygienic and veterinary medicines) with farmers specifically mentioned in DfE advice for parents.
This announcement by government is intended to address the problems that could have been caused if workers are unable to work due to closures of schools and nurseries rather than being unwell. It is important to highlight however, that if it is at all possible for children to be at home, without relying on those in at risk groups (such as grandparents, friends/ family members with underlying conditions etc) then they should still be kept home even for workers in these sectors.
Parents should also do everything they can to ensure children are not mixing socially in a way which can continue to spread the virus. This means children should observe the same social distancing principles as adults.
If within a family there is one parent who is a key worker, the other parent would still be able to take emergency time off for dependants to make care arrangements and employers should still treat them as any other working parent, see - What if my employee can’t come to work because their child attends a school which has closed due to coronavirus? Employers should not expect working parents to make use of the school facilities available to key workers.
As from 25 March 2020 eligible employees and workers are entailed to take a period on unpaid emergency volunteering leave (EVL). Employees and workers will need to provide their employer with an emergency volunteering certificate (EVC) from a relevant health or social care authority whilst giving at least 3 working days’ notice of the EVL. Bank holidays and weekends are not counted as working days.
The following employees and workers will not be eligible for EVL:
EVL can be taken in one block of either two, three or four weeks in a 16 week volunteering period.
Those who are on EVL have no right to receive remuneration from their employer, but it would not be unlawful for an employer to make any payment during a period of EVL. Legislation will be brought in allowing those who volunteer to receive compensation from the Government for their loss of earnings, travel and subsistence.
Whilst on EVL a worker has the right not to suffer any detriment, whilst an employee has the further right not to be selected for redundancy or be subjected to dismissal for taking or purporting to take EVL. No qualifying length of service is needed for any of these claims. Employees and workers will still have the right to the benefit of their contractual terms, other than the right to receive pay. This is analogous to maternity leave and contractual rights (including pension rights). They will continue to be bound by any obligations upon them.
At the end of the EVL employee and workers have the right to return to the same job with the same terms and conditions.
The latest guidance is that those who have a new persistent cough or high temperature, those with coronavirus, those with others in their household with symptoms, or those advised to self-isolate by a doctor or NHS 111 should self-isolate. The NHS website has guidance on how to recognise a high temperature and new continuous cough: https://www.nhs.uk/conditions/coronavirus-covid-19/
The period of self-isolation is for 7 days for people with symptoms, but for those who are self-isolating because someone in their household has symptoms, they need to self-isolate for 14 days.
Statutory Sick Pay (SSP) regulations have been amended to include self-isolation to prevent the spread of coronavirus on the advice of Public Health England or its equivalent. This change takes affect from 13th March 2020 and although it is not retrospective the guidance is that employers should treat those employees who were self-isolating in accordance with the official advice in the same way and pay them SSP, even if there was no fit note to cover the absence.
Where there is written notice from a doctor or other qualified medical professional that a person should self-isolate then there is a legal obligation to pay SSP where they meet the normal qualifying rules.
An employee can self-certify their own sickness for the first 7 days and some may do this where they believe they have the coronavirus or symptoms of it. The Government have “strongly suggested” employers to be more flexible and exercise discretion where an employee may not have a fit note, but “isolation notes” are now available from NHS 111 Online, NHS mobile phone app and the NHS website, so employers should be accepting these as suitable evidence.
Where possible it is good practice to consider paying full pay to prevent an employee from coming to work and spreading the virus to others. Employers will need to take special account of those employees who don’t qualify for SSP. The Government has implemented emergency legislation to give those employees who are self-isolating on medical advice the right to receive payment on the first 3 waiting days of SSP, which in ordinary circumstances would normally be unpaid.
The new legislation came into force 28 March 2020 and applies to anyone who had a period of incapacity due to coronavirus on or after 13 March 2020. As with all of these new measures the Government have recommended that employers apply the same principles to those employees who were self-isolating prior to 13 March 2020. There are also measures in place to provide funding through state benefits such as Employment Support Allowance or Universal Credit to those employees who wouldn’t ordinarily qualify for SSP or other sick pay.
In the Budget it was announced that there will be temporary help for employers with less than 250 employees so that they are able to recover the first 14 days of SSP paid, plus help by way of a new Coronavirus Business Interruption Loan Scheme and cash grants for small businesses with losses due to coronavirus. Early indications state that employers will be required to keep records of absence, so it is important that you are keeping records now of what time off employees have and the reason/s why.
If a fit note has been issued then you should follow your normal sick leave and sick pay policy as appropriate. We anticipate that the right to receive SSP from day one will also apply in these circumstances and where an employee has been diagnosed with coronavirus.
Acas have advised that employers must be especially careful and follow the recommended steps for vulnerable employees such as pregnant women, people with long term health conditions and those aged over 70, so employers will need to consider making arrangements to keep these employees safe, such as home working, use of annual leave or in some cases sending them home on full pay. These vulnerable groups are being urged to limit social interaction where possible, they are not specifically being advised to self-isolate, unless they meet the common requirements to self-isolate.
SSP is only payable to those who are self-isolating in accordance with Public Health England guidance – see above ‘What to do if an employee is advised to self-isolate?’. If you have an employee in one of these vulnerable groups who chooses to self-isolate, you should discuss their concerns with them and try to reach an amicable solution such as home working, annual leave or unpaid authorised leave. The Government guidance for employers and businesses regarding vulnerable groups is “employees from defined vulnerable groups should be strongly advised and supported to stay at home and work from there if possible”. This does not mean that employees are entitled to full pay where they have decided not to come into work and are unable to work from home, but the Government’s words suggest that employers should be considering what pay they are able to make in such circumstances. If it is the employer’s decision that the employee should stay away, this will be on full pay, unless you are able to agree any specific alternative pay arrangements with your employee. Please contact the Helpline to discuss any such proposals before implementing them.
Risk assessments should already have been completed for women of child bearing age including biological risks, such as Coronavirus, to them and/or their unborn child. If a risk is identified as a result of Coronavirus then employers need to make adjustments to the workplace as outlined above. Where these options are not reasonable or possible then employers have a duty to suspend the woman on full pay. If this happens to be within the last four weeks before the baby is due and the reason for the absence is wholly or partly pregnancy related this will automatically trigger the start of her maternity leave. This is only the case where the absence is pregnancy related and would therefore not apply if there was not enough work for her to do. In those circumstances see - Coronavirus is impacting my business and there has been a downturn in work or the business has been forced to close.
The current Government advice is for everyone to stay at home with social distancing for everyone but with specific focus on the importance of it for vulnerable groups.
More guidance is available online: https://www.gov.uk/government/publications/covid-19-guidance-on-social-distancing-and-for-vulnerable-people/guidance-on-social-distancing-for-everyone-in-the-uk-and-protecting-older-people-and-vulnerable-adults.
ACAS have advised employers to try and support their workforce to take these steps to follow social distancing and where employers are still able to safely operate their business they should consider agreeing to more flexible ways of working, for example changing start and finish times to avoid busier commuting times, allowing staff to work from home wherever possible, and cancelling face-to-face events and meetings and rearranging to remote calling where possible, for example using video or conference calling technology.
Shielding is the latest measure brought in to protect people who are clinically extremely vulnerable by minimising all interaction between those who are extremely vulnerable and others. The Government are “strongly advising people with serious underlying health conditions which put them at very high risk of severe illness from coronavirus (COVID-19) to rigorously follow shielding measures in order to keep themselves safe” for a period of at least 12 weeks. People falling into this extremely vulnerable group include:
If you have an employee who has been contacted by the NHS and advised to shield themselves, you should do all that you reasonably can to support your staff in following these guidelines. You should consider making arrangements to keep these employees safe, such as home working, use of annual leave or in some cases sending them home.
Shielding is distinct from self-isolation and therefore does not fall within the scope of SSP, unless the employee happens to also fall within the criteria for self-isolation (they have a new persistent cough or high temperature, coronavirus, or live with others in their household with symptoms, or have been advised to self-isolate by a doctor or NHS 111).
If you have an employee who has been advised to be shielding, you should discuss their concerns with them and try to reach an amicable solution. This does not mean that employees are entitled to full pay where they have decided to follow advice and not come into work and are unable to work from home, but the Government’s words suggest that employers should be considering what pay they are able to make in such circumstances. If it is the employer’s decision that the employee should stay away, this will be on full pay, unless you are able to agree any specific alternative pay arrangements with your employee.
More detail on shielding is available here: https://www.gov.uk/government/publications/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19
In addition; government guidance has now confirmed that employees who are shielding in line with public health guidance, may be placed on furlough – see our separate guidance on furlough leave.
The same duty of care is owed to these people but there is no statutory obligation to pay them if they are ill or are self-isolating, subject to the terms of any contract. In the Budget it was announced that those people not entitled to SSP including zero hours workers and the self employed would be entitled to receive Employment and Support Allowance (ESA), but this is something they would need to claim through Job Centre Plus or online from: https://www.gov.uk/employment-support-allowance/how-to-claim, you do not have to pay this to them.
There are also other measures which have been announced, if you wish to help any contractors with guidance you can refer them to the Government webpages for more information as and when it becomes available.
Any employees covered by the Equality Act 2010 and classed as disabled will be entitled to the same duty of care applicable to all of your other employees, but there is also the additional requirement not to discriminate against these employees and to consider making reasonable adjustments. What is reasonable will depend on the circumstances but could include; working from home or sending an employee home who suffers with respiratory problems or has mental health issues and has increased anxiety levels due to their fear of coronavirus. Prioritising a disabled employee who is also classed as a vulnerable worker is likely to be a reasonable adjustment in many cases. Take advice from the Helpline on these sorts of queries.
You should discuss your concerns with the employee and encourage them to follow the NHS and Government guidance but ultimately if they refuse to and you don’t want them in the workplace you would have to send them home on full pay with the instruction to use and follow the advice on the NHS Online Coronavirus service: https://www.nhs.uk/conditions/coronavirus-covid-19/. The NHS 111 service should only be used where no support is available online.
Currently there is no guidance advising that you should automatically close the workplace where an employee has attended the workplace and is suspected or known to have the coronavirus.
Government guidance is for everybody to stay at home and practice social distancing. For many that will be easier now that a lot of businesses have been forced to close but if you operate a business that is still running and you have an employee who is worried about catching the coronavirus from others in the workplace you should listen carefully to their concerns and try to reassure them with the steps you are taking to make and keep the workplace safe, showing that you are doing all that you reasonably can to allow for social distancing. ACAS have suggested where possible home working or flexible working should be offered and this is also something that the Government have indicated they will advise employers to consider, but this is not always going to be a feasible option for many members. Alternatively, annual leave or unpaid leave may be agreed where this is available.
If an employee unreasonably refuses to attend work and they are not displaying any symptoms or have not been advised to self-isolate, it may be possible to take disciplinary action. The underlying message from government guidance is for employers to adopt a reasonable approach. As such; invoking a disciplinary process should be a last resort and where all other options have been genuinely and fully considered. It is important that you contact the Helpline for advice on this before taking any action.
Employers are being advised to think about the long term so that they can ensure consistency with their approach to matters such as how might discretionary sick pay apply, will self-isolation absence be treated as sickness absence for the purpose of sickness records or trigger points.
NFU Employment Service members can speak to an adviser through our Helpline for advice on how to handle these issues.
