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.
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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 have any symptoms or a persistent cough or fever, or loss or change to their sense of smell and/or taste, or live with someone or are in a support bubble with someone who has symptoms etc.
On 11 May 2020 the Government produced COVID-19 secure guidelines for employers to follow to help them get their businesses back up and running and workplaces operating as safely as possible. See ‘What guidance is there on social distancing and other health and safety considerations within my business?’ for more detail on these.
ACAS have issued guidance for employers: https://www.acas.org.uk/coronavirus.
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/, including information on the most effective and best way to wash your hands: https://www.nhs.uk/live-well/healthy-body/best-way-to-wash-your-hands/.
There is an online coronavirus hub set up by the government here: https://www.gov.uk/coronavirus where it is also possible to sign up for email alerts of any changes.
More specifically there is an area within the hub for employers and businesses: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19 and there are workplace specific COVID-19 secure guidelines for employers to follow to help them get their businesses back up and running and workplaces operating as safely as possible: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19.
The Welsh Government have their own webpage with information for employers in Wales: https://gov.wales/business-and-employers-coronavirus
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/
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 be sent home immediately and told to use the NHS Online Coronavirus service: https://www.nhs.uk/conditions/coronavirus-covid-19/ for further advice. The NHS 111 service should only be used where support is not available online. Try to avoid them in coming into contact with others in the workplace and to avoid touching anything if they can and to use a separate bathroom to the rest of those who may be in the same workplace.
If a member of staff has helped the employee who is unwell, they do not need to go home unless they develop symptoms themselves. You should remind them to wash their hands thoroughly for 20 seconds after any contact with someone who is unwell with symptoms consistent with coronavirus.
Your normal sick pay entitlements will apply in these cases.
If an employee or worker has been diagnosed as having coronavirus (COVID-19) and there is reasonable evidence that it was caused by exposure at work, it must be reported as a case of disease in accordance with Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR). More information is available here.
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. Employers are advised to follow cleaning guidance: https://www.gov.uk/government/collections/coronavirus-covid-19-list-of-guidance#guidance-for-non-clinical-settings
If there is more than one case of COVID-19 associated with a workplace, employers should contact their local health protection team to report the suspected outbreak.
The heath protection team will undertake a risk assessment, provide public health advice, and where necessary, establish a multi-agency incident management team to manage the outbreak. Details of how you can find your local health protection team are here.
Unless any of the employee’s colleagues have been advised by the NHS Test and Trace or Test, Trace, Protect service to self-isolate, they should continue working but they:
If they are then later advised to self-isolate by NHS Test and Trace or Test, Trace, Protect, they should follow the advice given to them. For more information on this please see – ‘What happens if any of my workers are contacted by the NHS Test and Trace service?’.
If any of the employee’s colleagues start to display symptoms of coronavirus, they should self-isolate. For more information on this please see – ‘What to do and what to pay if an employee is advised to self-isolate?’.
There is a guidance on the NHS website about how long and when a person needs to self-isolate where they have been tested and what to do when a test comes back positive, negative or inconclusive, as a negative test does not always mean that the self-isolation can immediately end.
In England only, from 28 May 2020 a new NHS Test and Trace service was launched. NHS Wales have launched their own similar version on 1 June 2020.
Both services provide testing for anyone who has symptoms of coronavirus to find out if they have the virus and then gets in touch with anyone who has had a positive test result to help them share information about any close recent contacts they have had. The service will then alert those contacts, where necessary, and notify them they need to self-isolate to help stop the spread of the virus.
There is specific guidance for employers in England here and in Wales here.
Employers should support workers who need to self-isolate and must not ask them to attend the workplace. Employers should continue to communicate with workers in self-isolation. Working from home if they remain well and if it is practicable to do so should be considered and encouraged.
If people can’t work from home, employers should consider what sick pay may be due, for more information please see – ‘What to do and what to pay if an employee is advised to self-isolate?’.
Alternatively, an employee may wish to use some of their annual leave to cover their period of absence.
Both services will follow up with people who need to self-isolate because they have had close recent contact with someone, who might be a colleague, who has tested positive for coronavirus.
When someone first develops symptoms and orders a test, they will be encouraged to alert the people that they have had close contact with in the 48 hours before symptom onset. If any of those close contacts are co-workers, the person who has developed symptoms may wish to (but is not obliged to) ask their employer to alert those co-workers. At this stage, those close contacts should not self-isolate, but they:
If the person who has symptoms has a positive test result for COVID-19, the NHS service will ask them to share information about their close recent contacts.
Any non-household contacts who need to self-isolate will be contacted by the NHS service. They will receive a formal notification (either a phone call, letter, email or text message) setting out how long they need to self-isolate for.
The NHS service will provide a notification that can be used as evidence by workers to inform their employer that they have been told to self-isolate. Employers will need this evidence if they are going to claim a rebate for Statutory Sick Pay.
The period of self-isolation will be for 14 days from the point of most recent contact with the person who has tested positive for coronavirus.
If it is likely that it is working with others which has triggered these notifications, employers should consider what further actions could be taken to reduce the risk of COVID-19 and review what steps they have taken in making the workplace COVID-19 secure. For further information on this please see – ‘'COVID-secure' What you need to know.
Workers should only self-isolate where:
There is no need for workers to self-isolate where they believe they have come into contact with someone who has coronavirus, unless any one of the above points applies.
In England and Wales, anybody showing symptoms of coronavirus can be tested by making a request through the NHS website. The test can also be taken by someone living in the same household with a person who has symptoms.
In England only, essential workers who are showing symptoms of coronavirus along with members of their households (including children aged under five) who are also showing symptoms will be able to get tested through a priority route. This will help in providing reassurance of knowing whether symptoms are caused by coronavirus and help workers to decide whether they are well enough to return to work.
The important point about the testing being done at this stage is that it will only identify whether the individual has COVID-19 at the moment; it will not say whether they have had COVID-19 already and are now recovered, or whether they have any antibodies or immunity.
The list of essential workers on the website includes critical personnel in the production and distribution of food, drink and essential goods, including:
The full list of essential workers can be seen here.
Booking the test for essential workers (or members of their household) is via a new online system. Employers can register and refer self-isolating essential workers or members of their household who have symptoms via a secure portal. To obtain a login employers need to email cG9ydGFsc2VydmljZWRlc2tAZGhzYy5nb3YudWs= with:
Once employer details have been verified, 2 login credentials will be issued for the employer referral portal. When their details have been entered online the affected workers will then receive a text message with a unique code allowing them to book themselves a test at a regional testing site.
If employers have any queries they should refer to the website or contact the Department of Health and Social Care at b3BzaHViQGRoc2MuZ292LnVr.
Employees are able to book a test for themselves or members of their household who are experiencing symptoms directly at: https://www.gov.uk/coronavirus.
Anybody needing a test who is not an essential worker will have to arrange their own test via the NHS website.
Testing is not compulsory for anybody, and employers don’t have the automatic right to insist that their employees are tested, or that employees who have been tested share their results with their employer. An employer may be able to argue that being tested and a requirement to share results is a reasonable instruction from a health and safety perspective, and any unreasonable failure to follow that instruction could be a misconduct matter. This in turn may result in disciplinary action but investigation of the facts will be essential, including why the employee refused. In many cases it is not likely to amount to gross misconduct but if an employer is considering any disciplinary action, including dismissal, they should seek advice from CallFirst in the first instance.
If an employee shares their test results with their employer this could be classed as data relating to their health and would constitute special category data. This type of data is personal data that needs more protection because it is sensitive. In order to lawfully process special category data, you must identify both a lawful basis under Article 6 of the GDPR and a separate condition for processing under Article 9. Employers will need to ensure that this is covered by their privacy notices and that a data protection impact assessment has been completed. For more detail on this please see specific employer guidance from the ICO concerning workplace testing: https://ico.org.uk/global/data-protection-and-coronavirus-information-hub/data-protection-and-coronavirus/workplace-testing-guidance-for-employers/.
In Wales, testing is available for ‘critical workers’ who have symptoms of coronavirus and includes many categories of workers including ‘food and other necessary goods’.Anybody living with a critical worker will also be eligible for testing if they have symptoms of coronavirus.Within each Local Resilience Forum area there are local referral arrangement in place. For more information visit the website: https://gov.wales/critical-workers-testing-policy-coronavirus-covid-19-html. People who are not classed as critical workers can be tested by making a request via the NHS website for a home testing kit.
Where there is a local lockdown in England or Wales, critical/essential workers may be able to have a test regardless of whether they are symptomatic or not.
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 and the Government will provide financial support for employers who do this. The CJRS is designed to help employers whose operations have been severely affected by coronavirus to retain their employees and protect the UK economy. The government recognises different businesses will face different impacts from coronavirus and therefore all employers are eligible to claim under the scheme. Furlough is a new concept in UK employment law but it means the employee is on a period of leave. Initially the scheme was expected to last for three months from 1 March 2020 but was extended until the end of June 2020. On 12 May 2020 the Chancellor announced a further extension of the current CJRS until 31 July 2020. From 1 August 2020 the CJRS will continue until 31 October 2020 but changes will be made so that employers will be expected to contribute to the furloughed employees’ wages, which will be still subject to 80% of their normal wages, capped at £2500 per month. Employers will also be able to furlough employees on a part time basis from 1 July 2020.
The online portal for making CJRS claims went live on 20 April 2020. Unless there is an express lay off clause within the contract your employee would need to agree to change their status which must then be documented in writing with detail of how this impacts the rest of their contractual entitlements. During this time and up until 30 June 2020 the employee would not be able to do any work for you. Please see our separate guide on furlough leave for more detail, including the changes taking effect from 1 July onwards.
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 any time on or before 10 June 2020, so long as they were on your payroll at 28 February 2020 and you had made an RTI submission notifying HMRC of payment to that employee on or before 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 so far Government have announced the following financial support:
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
HMRC have published guidance on how employers will be able to recover coronavirus-related SSP through the Coronavirus Statutory Sick Pay Rebate Scheme (‘the scheme’). From 26 May 2020, employers will be able to submit their claim online .
The scheme can be used by employers if they:
The scheme will only repay employers the rate of SSP paid (no sick pay top is reimbursed) to current or former employees for periods of sickness starting on or after 13 March 2020 for employees who had coronavirus (or the symptoms) or are self-isolating because someone they live with has symptoms or they have been advised to by the NHS service because they have come into contact with someone who has tested positive. For employees who are shielding because of coronavirus, employers can claim for absences which started on or after 16 April 2020. From 1 August 2020, in England only, those who had previously been advised to shield will no longer need to do so. Where they are unable to work from home, they can return to their workplace, so long as it is COVID-secure. This will mean that from 1 August 2020, these employees will no longer be eligible for SSP solely due to shielding.
Up to a maximum of 2 weeks can be reclaimed from the first day of sickness where an employee is unable to work because they either:
Employers can claim back from both the Coronavirus Job Retention Scheme and the Coronavirus Statutory Sick Pay Rebate Scheme for the same employee but not for the same period of time for that employee.
An employer’s claim amount should not take them above the state aid limits under the EU Commission temporary framework. The maximum level of state aid that a business may receive is €800,000. There is a lower maximum for agriculture at €100,000 and aquaculture and fisheries at €120,000.
To make a claim employers will need:
Employers can claim for multiple pay periods and employees at the same time. HMRC are writing to those employers who are unable to claim online with details of alternative arrangements for submitting their claim. If you have queries about this you should contact HMRC.
Once a claim has been made and then checked by HMRC, the monies will be paid into the employer’s account within 6 working days.
In order to reclaim the SSP, employers will need to keep records for at least 3 years from the date of the claim showing:
You’ll need to print or save your state aid declaration (from your claim summary) and keep this until 31 December 2024.
HMRC will have powers to recover any over or fraudulent payments made to employers. Penalties of up to £3000 can be imposed where HMRC find that employers have knowingly and deliberately provided false or misleading information to benefit from a claim.
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 its 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.
The Government has produced a new online guide: Holiday entitlement and pay during coronavirus (COVID-19) which gives an explanation of how holiday entitlement and pay operate during the coronavirus pandemic and where it differs from the standard holiday entitlement and pay guidance, including how furloughed employees may be affected.
If your employees are furloughed it will be possible for them to take annual leave during this time. For more detail on this please see our separate guide on furlough leave.
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 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 19 March 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 general position:
From 8 June 2020 new rules require all new international arrivals to self-isolate for a period of 14 days, unless they are on a shortlist of exemptions or are arriving in England from one of the countries with travel corridor exemption from 10 July 2020 onwards (see below for more information). This therefore includes new foreign workers and your existing workers who have travelled abroad for any reason and are returning to the UK.
The new rules require all international arrivals to supply their contact and accommodation information. Anybody in England refusing to supply these details may be fined £100 in England or £60 in Wales, and non-British nationals may not be allowed into the. Any of these international arrivals (including returning UK residents) not on a short list of exemptions, in England or Wales will be required to self-isolate in their accommodation for fourteen days on arrival into the UK. Where international travellers are unable to demonstrate where they would self-isolate, they will be required to do so in accommodation arranged by the Government. Anybody refusing to comply with the self-isolation requirements may be fined £1000.
All journeys within the Common Travel Area will also be exempt from these measures. The measures and list of exemptions will be kept under regular review.
In England only, from 10 July 2020, new arrivals (UK residents and international visitors) will not have to self-isolate when they arrive in England, if they:
This applies to all travel to England, by train, ferry, coach, air or any other route. The list of travel corridors will be kept under review and it is essential that the up to date list is used when checking if there is a travel corridor.
If they have been to or stopped in a country that’s not on the travel corridors exemption list they will have to self-isolate until 14 days have passed since they left that country, unless they fall within one of the exemptions.
International arrivals in Wales are subject to the existing rules in place i.e. will need to self-isolate for 14 days unless they fall within one of the exemptions. Currently the Welsh government have not indicated they will be following the travel corridor policy coming into force in England.
Both visitors and UK residents will still need to complete a passenger locator form before their arrival to any country in the UK and this must be presented on arrival to the UK even where there is no need to self-isolate.
Seasonal worker exemption:
The exemptions for the English border where there is no relevant travel corridor and Welsh borders include seasonal agricultural workers who have an offer of employment for seasonal work to carry out specific activities in edible horticulture on a named farm. It is important to note that this particular exemption does not extend to any other areas of farm work and is specifically in relation to seasonal workers, therefore not covering your existing permanent workers.
Details on this exemption are available here and there is also specific guidance for workers and employers here. The legislation has defined specific activities as:
They can start work immediately but they must self-isolate on the farm for the first 14 days and must live on the farm. They are allowed to mix with fellow workers but can only leave the farm for very limited purposes. There is guidance available for those who are self-isolating when they have travelled to the UK.
However, anybody who is exempt will still need to follow the same rules on social distancing and staying at home where possible. If any of these workers develop symptoms of coronavirus or live with a person who has developed symptoms of coronavirus, they should follow the guidance on self-isolating.
Anybody intending to rely on the exemption will need to provide in advance their contact details including where they are staying. It is important therefore, that you ensure you have given the full and correct address of the farm to the worker prior to their arrival in the UK.
They will also need documentary evidence to prove they have travelled to the UK to carry out seasonal agricultural work at your farm. You will, therefore, need to ensure that you have provided this either by letter or email prior to the start of their journey. We have a template letter for employers in England to use and a separate template letter for employers in Wales to use. Both of these templates are only suitable to use where your workers are from the EU and they fall within the full seasonal worker exemption. They are not suitable for use if your workers are from outside of the EU.
When the worker arrives in the UK they must go straight to the farm and somebody from the farm should collect them from the airport, port or station wherever possible.
Within 2 hours of workers arriving at the farm, you should give them:
For more detail on the health and safety steps you should take, please see 'COVID-secure' What you need to know.
Existing employees:
From 8 June 2020, employers will need to ensure that as well as any new starters, any existing employees returning from work or annual leave abroad comply with the self-isolation requirements, unless they are travelling from one of the countries on the travel corridors exemption list or are exempt. For the avoidance of doubt, they will not be covered by the seasonal workers exemption and therefore unless they fall under one of the other exemptions listed, they will have to self-isolate for 14 days in their own accommodation upon returning to the UK. A full list of the exemptions can be found here.
Pay:
Currently there are no provisions in place for this period of self-isolation to be paid or an entitlement to SSP. There is no obligation on employers to pay their employees self-isolating in these circumstances, but they may choose to do so, or may agree that the employee can take annual leave to cover this time, where possible. Where the employee is having to self-isolate due to a work related trip, it would be reasonable and advisable for an employer to give full pay for this period.
Normally when you take on new workers, you have to carry out in person document checks to ensure that they have the right to work in the UK as part of the recruitment process. Now due to the measures in place to deal with the virus this means this is not always possible.
Following NFU and business lobbying, the government have announced that right to work checks are to be relaxed during the COVID-19 break to allow them to be carried out remotely. This move is welcome as it is a pragmatic solution to recruitment issues, whether this is for seasonal work or to fill more permanent positions.
It is important to note that this is a temporary process.
The process that will now need to be followed as from 30 March 2020 is to:
These steps are only a temporary measure and will not provide any statutory defence to illegally employing a worker. It is still an offence to knowingly employ somebody who does not have the right to work in the UK. When the coronavirus temporary measures end as notified by the Home Office, employers will need to carry out retrospective right to work checks for workers employed during the temporary measures or for those who needed a follow up right to work check during this time. There will be an 8 week grace period and employers should keep copies of the initial and retrospective checks. The retrospective check should include the following statement: ‘the individual’s contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19.’
If, during a retrospective check, an employer finds out that the worker does not have the right to work, they must end their employment immediately.
More detail is available here: https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks
Government guidance continues to encourage this where possible, this does not mean it is compulsory. 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 have changed the terminology they have used previously and are now referring to ‘critical workers’ rather than ‘key workers’. The content of the guidance has not been changed but it is still crucial to refer to the list of critical workers the government has publicised . This 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 only 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 critical 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 critical workers.
Currently, the only government list of ‘critical workers’ is for ‘critical workers’ whose children should be provided with education provision. This makes no link between critical workers and any justification to work or to travel for work purposes. The current government position on travel for work purposes is that this is allowed for businesses which are still able to open, but only where working from home is not possible.
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 or https://gov.wales/coronavirus-covid-19-closure-businesses-and-premises
This will be a temporary new form of statutory unpaid leave which eligible employees and workers will be entailed to take as a period on unpaid emergency volunteering leave (EVL). As yet the regulations needed to bring this new right in force have not been produced, therefore currently there is no right to request EVL. If EVL is introduced, 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 or loss or change to their sense of smell and/or taste, or those with coronavirus, those with others in their household or support bubble with symptoms, or those advised to self-isolate by a doctor, NHS 111 or NHS Test and Trace or Test, Trace, Protect service 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 standard period of self-isolation is for 7 days for people with symptoms, but for those who are self-isolating because someone in their household or support bubble has symptoms or because they have been advised by the NHS that they have come into contact with someone who has tested positive for coronavirus, will need to self-isolate for 14 days. Please refer to the latest NHS guidance on exactly how long a person must self-isolate for, including occasions where a person has symptoms for a further time.
Statutory Sick Pay (SSP) regulations have been amended to include self-isolation because somebody has symptoms or is living in the same household or shares a support bubble with another person who has symptoms or where advised by NHS Test and Trace or Test, Trace, Protect to self-isolate to prevent the spread of coronavirus. This change takes affect from 13th March 2020 (28 May 2020 for NHS Test and Trace or Test, Trace, Protect self-isolation and 6 July 2020 for those in a support bubble) 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.
A further change came into effect from 16 April 2020 so that those who have been deemed to be extremely vulnerable and have received written notification that they should shield themselves, are now also entitled to SSP where they meet the rest of the eligibility criteria. For more information please see ‘What is Shielding?’.
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. The NHS Test and Trace or Test, Trace, Protect service will provide a notification that can be used as evidence that someone has been told to self-isolate.
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 because they have symptoms or are living in the same household with another person who has symptoms or because they have been advised by the NHS that they have come into contact with someone who has tested positive for coronavirus, 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 (28 May 2020 for NHS Test and Trace or Test, Trace, Protect self-isolation). 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. 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. See – What SSP can I reclaim and how do I do this?
If a fit note has been issued then you should follow your normal sick leave and sick pay policy as appropriate. The right to receive SSP from day one will also apply in these circumstances 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. It is the “extremely vulnerable and at very high risk of severe illness from coronavirus because of an underlying health condition” who are advised to follow shielding guidance – for more information see – ‘What is Shielding?’. It is therefore important to distinguish between ‘vulnerable’ and ‘extremely vulnerable’.
SSP is only payable to those who are self-isolating because:
See ‘What to do if an employee is advised to self-isolate?’ and ‘What is Shielding?’ for further information.
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 and continues to be for everyone to stay alert and to limit contact with other people with social distancing, unless it is necessary to go out for specific reasons, for example going to work where it is not possible to work from home, or in accordance with the permitted activities as part of the Government’s recovery strategy. Specific focus remains on the importance of it for vulnerable groups.
More guidance is available online: https://www.gov.uk/government/publications/staying-alert-and-safe-social-distancing/staying-alert-and-safe-social-distancing#contents..
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”. The Government is currently advising people to shield until 31 July 2020 in England, and 16 August 2020 in Wales. People falling into this extremely vulnerable group include:
From 1 August 2020, in England only, those who had previously been advised to shield will no longer need to do so. Where they are unable to work from home, they can return to their workplace, so long as it is COVID-secure. This will mean that from 1 August 2020, these employees will no longer be eligible for SSP solely due to shielding.
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.
Originally shielding did not fall within the scope of SSP. Legislation has now been changed so that where somebody is shielding because they have been defined in public health guidance as extremely vulnerable and at very high risk of severe illness from coronavirus because of an underlying health condition; and they have received written notification sent to advise they should shield, they will now be able to receive SSP for this time. This is subject to satisfying the usual SSP eligibility criteria and came into effect from 16 April 2020. Eligibility for SSP will end when the advice to shield also ends, this is 1 August 2020 in England and 16 August 2020 in Wales.
As the absence is coronavirus related, the usual three waiting days for SSP will not apply and employers should be able to claim for the first 14 days of SSP paid as per the new Coronavirus Statutory Sick Pay Rebate Scheme, for more detail on this see – What SSP can I reclaim and how do I do this?
The usual rules and guidance about evidence of incapacity are that employees can self-certify their absence for the first seven days, after which normally they would be expected to provide medical evidence. Employers are strongly advised by the government to be flexible and to use their discretion around the need for medical evidence, as it will not always be easy for these employees to be able to obtain a fit note. In some cases, the employee may be willing to show their employer the letter they will have received advising them to follow shielding measures, but they are not obliged to do so.
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
Where an employee has chosen to follow advice and is shielding with no opportunity to work from home, employers should discuss matters with their employee and try to reach an amicable decision as to whether the best option is:
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.
When shielding comes to an end, employers will need to discuss with affected employees what the best arrangements are, which could include:
On 11 May 2020 the government announced further ‘COVID-19 secure’ guidelines for employers to follow to help them get their businesses back up and running and workplaces operating as safely as possible. The Welsh government have produced their own separate guidance for keeping ‘Wales safe at work’. Please see further on for more detail on this.
The new guidance has been updated and now covers 11 workplace settings which are allowed to be open, from outdoor environments and construction sites to factories and takeaways.
A downloadable notice is available for employers to display in their workplaces to show their employees, customers and other visitors to their workplace, that they have followed the guidance.
Employers are advised to look at the guidance which is specific to the nature of their business, and in some cases more than one set of guidance should be referred to where there is an overlap of the nature of the business. All 11 versions of the guidance can be found here.
On 23 June 2020, it was announced that from 4 July 2020 further measures will take affect in England only, to ease the lockdown and social distancing restrictions. The Prime Minister set out that where it is not possible to stay two metres apart, guidance will allow people to keep a social distance of ‘one metre plus’. This means staying one metre apart, plus mitigations which reduce the risk of transmission. These measures will be kept under review.
Supplementing the guidance are 5 steps to working safely , with practical guidance for businesses, although businesses should still read and refer to the guide/s relevant to their workplace:
1. Carry out a COVID-19 risk assessment
Before restarting work you should ensure the safety of the workplace by:
2. Develop cleaning, handwashing and hygiene procedures
You should increase the frequency of handwashing and surface cleaning by:
3. Help people to work from home
You should take all reasonable steps to help people work from home by:
4. Maintain 2m social distancing, where possible
Where possible, you should maintain 2m between people by:
5. Where people cannot be 2m apart, manage transmission risk
Where it’s not possible for people to be 2m apart, you should do everything practical to manage the transmission risk by:
If you have any queries about making your workplace ‘COVID-19 secure’ please see our separate Q&A specifically dealing with these issues.
It should also be noted that in Wales, the government have decided to introduce a legal duty with regard to social distancing which will apply to any workplace, including homes, where work and repairs are being undertaken and outdoor spaces. The announcement made on 23 June by the Prime Minister only applies to England and therefore does not change anything in Wales. These regulations mean that all businesses will have to take all reasonable measures to ensure the 2 metre rule is maintained between people on their premises whenever work is being carried out. The guidance on this also recognises that there are some workplace settings in which this distance may not be possible to maintain all of the time and in this situation, it makes clear that other measures should be considered e.g. minimising levels of interaction; physical barriers, improved hygiene, hygiene reminders, hand washing after close contact with others and ensuring those with symptoms are not present on the premises. Enforcement where all reasonable measures have not been taken will either entail a fixed penalty of £60 (this reduces to £30 if paid within 14 days but is doubled to £120 for a second a subsequent breach) or if charged and convicted, payment of a fine. The Welsh Government also have their own advice for businesses in Wales: https://gov.wales/business-and-employers-coronavirus
The Welsh government have also introduced a 5 step key principles for workplaces in Wales, summarised below.
1. Care: Our health and well-being comes first
Everyone should approach the health, safety and well-being of each other in the workplace through this emergency with compassion and understanding. Employers should look after their employees’ psychological and physical well-being. Employers can focus on reducing sources of stress for the workforce, both in terms of health anxiety and workload issues; with clear communications and assurance on the management of coronavirus (Covid-19) risk.
For those that cannot work from home, it is important for employers to establish an initial assessment on whether it is safe for staff to work and where relevant, signpost them to appropriate support organisations.
Employers should take extra care to safeguard vulnerable employees. They should record who is vulnerable and who has received a letter requiring them to shield.
2. Comply: The laws which keep us safe must be obeyed
Employers must continue to fulfil their legal duties under new and existing health and safety laws to maintain and protect the physical and mental health, safety and welfare of their employees and customers and visitors to their premises.
Where they cannot provide a safe working environment during the current emergency, they must determine what steps are needed to create one. If the employer still cannot provide a safe working environment, they must cease operations and if necessary, furlough staff.
Employees also have a legal responsibility to their employer and each other to follow instructions concerning safe working practices.
3. Involve: We all share the responsibility for safe work
Employers are required by law to protect their employees, and others, from harm. Employees also have a duty of care of their own safety and those of others. This is a shared responsibility.
Employers should maintain regular and meaningful engagement with their employees and with the recognised trade union or, if there isn’t one, a representative chosen by workers (including their health and safety committee, if this exists) during the coronavirus emergency.
4. Adapt: We will all need to change how we work
The consultation between employers and employees will help to identify the essential hygiene protocols, equipment and measures needed to keep the workplace safe from coronavirus (Covid-19) and limit its transmission. All work places are different, but there is a growing body of industry specific guidance and examples of good practice from work places which have not closed, available to draw upon.
Taking all reasonable measures to ensure that two metres distance is kept between all people in the workplace combined with robust hygiene measures is the aim.
5. Communicate: We must all understand what to do
It is essential that there is clear, precise and constant communication between employers, employees and other visitors to the workplace, about the reasonable and proportionate actions taken regarding workplace safety. It is important that everyone gets the same message and same instruction. Employers should ensure that communications are accessible for all staff.
Employees will need assurance before their return to work to that the employer is aware of any particular needs they have. All employees will need to be confident that the safety and well-being of the workforce and visitors is a key priority.
Safety messages should be circulated regularly to all employees using an agreed method which is accessible to all. Posters and prominent visual aids and notices in the workplace will help reinforce these safety messages.
Where you are already using PPE, such as face masks, in your work activity to protect against non-COVID-19 risks, you should continue to do so.
Workplaces should not encourage the precautionary use of extra PPE to protect against COVID-19 outside clinical settings or when responding to a suspected or confirmed case of COVID-19.
New guidance from the Government, in England only, statesthere are some circumstances when wearing a face covering may be marginally beneficial as a precautionary measure, it does not offer any protection to the person wearing it.
A face covering can be very simple and may be worn in enclosed spaces where social distancing isn’t possible, it is not a replacement for other ways of managing risk. It just needs to cover your mouth and nose. Face coverings are not the same as the PPE used to manage risks like dust and spray in an industrial context, or by health and care workers. Supplies of PPE, including face masks, must continue to be reserved for those who need them to protect against risks in their workplace.
Wearing a face covering is optional and is not required by law, including in the workplace. If you choose to wear one, or encourage your workers to wear one, it is important you support workers in using face coverings safely. This means telling workers:
On 9th June 2020 the Welsh Government issued Guidance on Face Coverings. This guidance provided information on how and when you could use a face covering to protect those around you, if you choose to wear one. The guidance can be found here. The Welsh Government’s guidance states that the evidence remains clear that the most effective way to protect yourself and others from infection is to follow social distancing rules, avoid touching surfaces and your face, and wash your hands regularly. Face coverings are not a substitute for these measures, but in some circumstances where it might be difficult to stay 2m away from others, they are advising the use of three-layer, non-medical face coverings.
See above for what employers should tell their workers when using face coverings.
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, unless it is necessary to go out for specific reasons, for example going to work where it is not possible to work from home. For many it will be easier to comply with the guidance where businesses have been forced to close but, the Government is now actively encouraging businesses which chose to close, to re-open where it is safe for them to do so. If you operate a business that is still running or is about to, or has recently re-opened 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 and that workers should not be forced into an unsafe workplace. As such; invoking a disciplinary process should be a last resort and where all other options have been genuinely and fully considered. Where an employee is dismissed or suffers any detriment for any steps or action they have taken (such as a refusal to work) based on their genuine belief that doing so would have left them or put them in serious and imminent danger, the employee would be entitled to make an employment tribunal claim. There is no minimum length of service needed for such a claim. It is important that you contact the Helpline for advice on this before taking any action.
This would be covered by the emergency time off for dependants leave where employees can take a reasonable period of unpaid leave to deal with an emergency such as this. Employers should think about what longer term options are available for employees such as home working, flexible working, annual leave or authorised unpaid leave.
Revised guidance for the CJRS states employers may furlough employees who are unable to work because they have caring responsibilities and provides the example of employees looking after children. Please see our separate guide on furlough leave.
Please see our separate Q&A for queries you may have about bringing people back into the workplace after furlough or other periods of absence:
If you have any queries about making your workplace ‘COVID-19 secure’ please see our Q&A specifically dealing with these issues.:
https://www.nfuemploymentservice.com/news/covid-secure-what-you-need-to-know/
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.
