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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From 5 January 2021 there will be a national lockdown which is expected to last until mid-February, subject to the situation in the hospitals improving. This means that people should stay at home, except for limited purposes, whilst certain businesses and venues will need to close.
Businesses that must close include non-essential retail, indoor and outdoor leisure facilities, entertainment venues, and personal care facilities. Non-essential retail can remain open for delivery to customers and click-and-collect. Hospitality venues like restaurants, bars and pubs must close, but can still provide takeaway and delivery services. Businesses that are forced to close may be eligible to furlough their staff. Please see our Q&A on Furlough leave and the Coronavirus Job Retention Scheme‘.
Food shops, supermarkets, garden centres and certain other retailers providing essential goods and services can remain open. Essential retail should follow COVID-secure guidelines to protect customers, visitors and workers.
Where businesses haven’t been forced to close, those who can work effectively from home must do so. Where people cannot do this, they should continue to travel to work/attend their workplace. Employers must still comply with their duty to ensure the workplace is COVID-secure.
During the lockdown, those people who had previously been advised to shield because they were identified as being clinically extremely vulnerable, will receive a letter advising them to resume shielding. These people should work from home where possible and if they cannot work from home then they should not go to work. In these circumstances the employee may be eligible for SSP. For more detail, please see ‘What is shielding?’.
At the end of the national lockdown, local areas will return to the tier systems and will need to follow the rules for that tier and any other local restrictions.
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. From 28 September business and organisations will face stricter rules to make their premises COVID-secure. See ‘What guidance is there on social distancing and other health and safety considerations within my business?’ for more detail on these.
When we are not in a national lockdown there is still a risk of local restrictions, so it is essential that regular checks are made to establish if there are any local restrictions applicable to you. There are now COVID alert levels which set out information for local authorities, residents and workers about what to do and how to manage the outbreak in their area. Local COVID alert levels are sometimes called ‘tiers’ or known as a ‘local lockdown’. Details of the different levels and what they entail can be found here. A full list of affected areas can be found here along with a postcode checker (during periods of national lockdown, these websites may not be available).
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, encouraged to get tested as soon as possible and advised 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.
From 28 September 2020, in England people who have been instructed by NHS Test and Trace to self-isolate (including those who have tested positive for coronavirus) will be required to do so by law. New fines for those breaching self-isolation rules will start at £1,000 (the same as the penalty for breaking quarantine after international travel) but could increase to up to £10,000 for repeat offences and for ‘the most egregious breaches’. There is a legal duty upon those who are legally required to self-isolate to inform their employers of this with the start and expected end date of self-isolation. This information should be given as soon as reasonably practicable and, in any event, before they are next due to start work within the isolation period. A fixed penalty notice for £50 may be issued for any breach of this requirement. Employers who prevent or try to prevent others from self-isolating will also face the same level of fines. It is still reasonable to expect those who can, to work from home whilst self-isolating but employers must not ask, encourage or expect those who are required to self-isolate to come into the work place.
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, unless the employee is able to work from home whilst they are self-isolating.
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
The Government have issued Guidance on Covid-19 early outbreak management . The guidance applies to England only and outlines key steps to take to help identify, report and respond to a potential COVID-19 outbreak. There are links to PHE website where there are ‘Action Cards’ which provide specific COVID-19 early management information for particular businesses and organisations.
The action cards are designed to be downloaded or printed so that they can be readily accessed if needed. The Government is likely to add further Action Cards in due course. More information on this can be found in our ‘Covid secure – what you need to know’ Q&A.
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 in England are here, and in Wales 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 and get tested. For more information on this please see – ‘What to do and what to pay if an employee is advised to self-isolate?’.
The Government have produced a new framework setting out how national and local partners will work with the public at a local level to prevent, contain and manage outbreaks. This national framework will support local decision-makers by clarifying their responsibilities and empowering them to take preventative action and make strong decisions locally, supported by mechanisms that safeguard key national assets and interests.
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 launched their own similar version, called NHS Wales Test, Trace, Protect 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.
From 28 September 2020, in England people who have been instructed by NHS Test and Trace to self-isolate (including those who have tested positive for coronavirus) will be required to do so by law. New fines for those breaching self-isolation rules will start at £1,000 (the same as the penalty for breaking quarantine after international travel) but could increase to up to £10,000 for repeat offences and for ‘the most egregious breaches’. There is a legal duty upon those who are legally required to self-isolate to inform their employers of this with the start and expected end date of self-isolation. This information should be given as soon as reasonably practicable and, in any event, before they are next due to start work within the isolation period. A fixed penalty notice for £50 may be issued for any breach of this requirement. Employers who prevent or try to prevent others from self-isolating will also face the same level of fines. 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 symptoms 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.
In most cases the period of self-isolation for those in England will be for 10 full days from the point of most recent contact with the person who has tested positive for coronavirus. The isolation period includes the date of last contact with the person who has tested positive and the next 10 full days.
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.
Designated venues must display an official NHS QR code poster to enable customers and visitors to scan the NHS QR code when they arrive by using the NHS COVID-19 app. The information stays on the user’s phone. As you are likely to already have a record of your employees and staff, they do not need to scan the NHS QR code. However, staff can scan the QR code, in addition, if they wish. As everyone over the age of 16 is being encouraged to download and use the app, employers are also advised by the Department of Health and Social Care to facilitate and support employee use of the app within their workplaces wherever possible, although use of the app is not mandatory. More information on NHS Test and Trace within the workplace is available here.
In England and Wales, anybody showing symptoms of coronavirus can be tested by making a request through the NHS website. People should not request a test ‘just in case’. Tests should only be requested where somebody has symptoms or they have been asked to get a test eg before going into hospital for surgery, or by the local council, or when taking part in a government pilot project.
Local authorities in England are being encouraged by the Department of Health and Social Care, to offer asymptomatic testing in the community and to target those who are unable to work from home. For more information on how this may help you and your workforce, contact your local authority to see if they are offering this service.
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. Antibody testing is not yet widely available and home antibody tests are not currently recommended.
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 an 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, anybody may be able to have a test regardless of whether they are symptomatic or not.
The NHS Test and Trace service is for those who display symptoms of COVID-19 or who have been advised to take a test by a medical practitioner or public service. Employers wishing to provide a test to staff must not advise individuals without symptoms to get a test from the limited supply offered by the NHS, but may offer alternative private provision, in accordance with the latest guidance. If you are contemplating arranging your own testing for your employees, whether they have symptoms or not, you are strongly advised to read and follow all of the published guidance.
Your local authority may also be offering community testing for asymptomatic people, particularly those who are unable to work from home. Contact your local authority for more information
The guidance currently applies to England only but there will be equivalent guidance for Wales published in due course.
This is subject to any national or local lockdown, regional or tier restriction in place at the time and will override the following:
New rules apply in Wales from 9 November 2020, two households will be able to join together to form an exclusive extended household/bubble. To help keep everyone as safe as possible at home, only people from the same household or extended household can meet in the home or outdoors. Beyond November 9, there will be new arrangements for meeting indoors in other settings, such as pubs, bars, cafes and restaurants. Groups of up to 4 individuals who do not live together can meet in a regulated setting such as a restaurant, café or pub. But this is subject to strict protections discussed with the hospitality sector, including advance booking, time-limited slots and verified identification. Extended households or bubbles where there are more than 4 people will not be able to meet in other indoor places other than the home. Up to 15 people will be able to take part in an organised indoors activity and up to 30 in organised outdoors activities, providing all social distancing, hand hygiene and other COVID safety measures are followed.
From 14 September 2020 groups must not be more than 6, indoors or outdoors in England. This limit may be altered depending on the local COVID-alert level an area may be in.
It will be against the law for people to meet others they do not live with in a group larger than 6 (unless they are meeting as a household or support bubble/extended household). Fixed penalty notices of £100 may be issued, doubling for further breaches up to a maximum of £3,200. It was announced on 22 September 2020 that fixed penalties are set to double to £200 for a first offence.
This change in legislation only applies to social gatherings and does not affect the number of people who may attend the workplace or attend work related meetings, although you should still ensure the workplace is COVID-secure. Please see our ‘COVID-secure – What you need to know’ Q&A for further information.
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 term 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 with amendments so that employers have to contribute to the furloughed employees’ wages, which will be still subject to 80% of their normal wages, capped at £2500 per month. Employers have been able to furlough eligible 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.
Following the announcement on 31 October by the Prime Minister that England would be returning to a national lockdown on 5 November 2020 until 2 December 2020, it was decided that the CJRS would be extended until December 2020 and that the Job Support Scheme would not be introduced until the CJRS has ended. Since then the CJRS has been further extended until 30 April 2021.
Please see our ‘Furlough Q&A - The Coronavirus Job Retention Scheme’ for more detail about furlough and the CJRS.
On 8 July 2020, the Chancellor announced the introduction of the Job Retention Bonus (JRB) as part of his ‘Plans for Jobs’.
This is a one-off payment of £1,000 to employers that have used the Coronavirus Job Retention Scheme (CJRS) for each furloughed employee who remains continuously employed until 31 January 2021.
The intention was for employers to claim the bonus from 15 February 2021 once accurate RTI data to 31 January has been received, but it was announced on 5 November that the JRB will not be paid in February and a retention incentive will be deployed at the appropriate time. The purpose of the JRB was to encourage employers to keep people in work until the end of January. However, as the CJRS is now being extended to 30 April 2021, the policy intent of the JRB no longer applies.
The Job Support Scheme is designed to protect viable jobs in businesses who are facing lower demand over the winter months due to Covid-19, to help keep their employees attached to the workforce. The scheme was due to open on 1 November 2020 and run for 6 months but following the extension of the CJRS it will be introduced when the extended CJRS ends.
It is separate from the CJRS and it will have no impact if employers have claimed from the CJRS or not previously.
The JSS provides different types of support to these businesses so they can get the right assistance, at the right time, according to their situation. Businesses that are operating but facing decreased demand can get support for wages through JSS Open. Those businesses that are legally required to close their premises as a direct result of coronavirus restrictions set by the governments can get the support they need through JSS Closed, this was previously referred to as the expanded Job Support Scheme.
To be eligible for a claim under the JSS Open, the employee must work a minimum of 20% of their usual hours and the employer will continue to pay its employee for time worked, but the cost of hours not worked will be split between the employer, the Government (through wage support) and the employee (through a wage reduction), and the employee will keep their job.
The JSS Closed will pay two thirds of eligible employees’ usual wages, up to a maximum of £2,083.33 per employee per month. Employers are not required to contribute towards wages but are required to cover employer National Insurance and pension contributions.
HMRC produced guidance the day before it was announced that the scheme was being delayed due to the extension of the CJRS. The guidance has since been withdrawn.
For more information on the JSS Open and JSS Closed, please see our Job Support Scheme Q&A.
At the start of lockdown, an issue that was 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 at the time stated:
“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.”
Employers should still take account of this guidance when considering what facilities they are able to offer to their employees regardless if there is a national lockdown or other local restrictions in place. Proper precautions will be essential as indicated to ensure that the risk of spreading COVID 19 is properly managed.
Measures are being announced regularly and more detail from the government can be found on support for business and self-employed people during coronavirus.
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 up 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, and from 16 August 2020 in Wales, 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 in England and 16 August 2020 in Wales, these employees will no longer be eligible for SSP solely due to shielding. In some areas where there are local restrictions in force or a national lockdown is imposed, the pause on shielding may be lifted and the government will write to those in the area who are deemed to be clinically extremely vulnerable and advise them to stay at home and shield.
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:
The 2 weeks maximum per employee applies regardless of how many days they are off sick or self-isolating and regardless of how many separate occasions there are. This limit only applies to what an employer may reclaim, it is not in relation to what SSP entitlement an employee may have. Where the 2 weeks maximum has been exhausted any continuing or further SSP costs will have to be met by the employer.
Waiting days for coronavirus related SSP have been abolished, although there must still be a period of incapacity for work, this is any period of four or more consecutive days, each of which is a 'day of incapacity for work'. For more information see ‘What to do and what to pay if an employee is advised to self-isolate?’
The maximum amount you can claim from the Coronavirus Statutory Sick Pay Rebate Scheme whilst it is live is limited to a total of £191.70 multiplied by the number of employees enrolled by you in PAYE on 28 February 2020.
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 has amended 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 a worker 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 on self isolation:
All travel corridors have been suspended from 4am 18 January 2021 until at least 15 February 2021. All international arrivals will still need to complete a passenger locator form and to self-isolate for 10 days, unless they are exempt or they take part in the Test to Release scheme (only applicable in England).
From 8 June 2020 new rules require all new international arrivals to self-isolate for a period of up to 10 full days, unless they are on a shortlist of exemptions or are arriving 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 10 day period starts from the day after the traveller leaves a country which is not on the travel corridor list. More information on this and how to self-isolate upon arrival is available here. However, from 15 December 2020 the 10-day period may be reduced for passengers arriving into England who comply with the ‘Test to Release’ strategy. Please see further on within this section for more details.
All international arrivals are required to supply their contact and accommodation information. Anybody refusing to supply these details may be fined £500 in England or £60 in Wales, and non-British nationals may not be allowed into the UK. 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 up to ten full 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 in England or £500 in Wales for a first fixed penalty notice.
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. It is possible to sign up for email alerts concerning any changes to the travel corridor lists in England here.
From 10 July 2020, new arrivals (UK residents and international visitors) will not have to self-isolate when they arrive in England or Wales, if they:
This applies to all travel 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 in place for the day of arrival into the UK.
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 10 days have passed since they left that country, unless they fall within one of the exemptions.
This includes situations where travellers have arrived into any nation in the UK and then travelled to another nation within the UK as their final destination. The devolved nations are responsible for setting their own travel corridors and there may differences between each list. Travellers will not be able to avoid self-isolation by arriving into one of those nations in the UK where their departure country was on that nation’s travel corridor list, if it is not on the travel corridor list of their final destination ie where they live or are travelling to. For example, a person travelling to England from a country that it not on the English travel corridor list will still need to self-isolate when they get to their final destination in England if they land/arrive in Wales/Scotland/Northern Ireland, regardless of the travel corridor list of the nation where they first arrived/landed.
Both visitors and UK residents will still need to complete a passenger locator form before their arrival to any nation in the UK and this must be presented on arrival to the UK even where there is no need to self-isolate.
Test to Release
All travel corridors have been suspended from 4am 18 January 2021 until at least 15 February 2021. All international arrivals will still need to complete a passenger locator form and to self-isolate for 10 days, unless they are exempt or they take part in the Test to Release scheme (only applicable in England).
Passengers arriving into England from countries not featured on the government’s travel corridor list from 15 December 2020 may be able to reduce mandatory self-isolation, if they take an optional coronavirus (COVID-19) test at least five days after they have left a destination not on the travel corridor list. Self-isolation will need to continue until the test results are obtained. If the test is negative, they will no longer need to continue self-isolating until the end of the 10 day period.
If the test result is positive, they must continue to self-isolate for a further 10 full days. People in the same household or support bubble must also then self-isolate for 10 full days. The isolation period includes the date the test was taken or any symptoms started and the next 10 full days.
If test is inconclusive the passenger must continue to self-isolate but they may choose to take another privately provided test.
If they should develop symptoms after a negative test, they must follow the usual guidance on self-isolation and seek out an NHS test and trace test as soon as possible, even if they have recently received a negative result from a private test. If the NHS test is positive they must continue to self-isolate for 10 full days. The isolation period includes the date the symptoms started and the next 10 full days.
Those who choose to opt into the scheme will have to book and pay for a test from a private provider on the GOV.UK list, they will not be eligible to use the NHS Test and Trace for this type of test, unless they have coronavirus symptoms. Tests provided by the NHS Test & Trace will not allow a passenger to shorten their isolation period. Passengers who have used the NHS Test and Trace because they have coronavirus symptoms, must continue to self-isolate if the result from an NHS Test & Trace test is negative. They may be fined if they use a negative NHS test result to try to end their self-isolation period early, only a negative test that has been paid for under the Test to Release scheme can be used to end the self-isolation period earlier than 10 days.
The private test will need to be booked before travel to England. Upon arrival in England passengers will still need to complete a passenger locator form where they can choose to opt into the scheme and self-isolate for 5 days before the test can be taken. If the test is not booked until after arrival in England, a new passenger locator form will need to be completed.
Passengers who choose not to take the optional test and have no other exemption applicable to them, will need to self-isolate as usual for 10 days.
The scheme details can be found here.
Seasonal poultry workers exemption:
Seasonal workers coming to England from 17 November 2020 to carry out specific activities in poultry processing on a named farm or processing site were subject to different rules on the requirement to self-isolate upon their arrival in England. However, to rely on this exemption they needed to have left England before 31 December 2020 so therefore this exemption is no longer applicable.
Seasonal agricultural worker exemption:
The exemptions for the English and Welsh borders where there is no relevant travel corridor 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 full 10 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 up to 10 full days in England or 10 days in Wales in their own accommodation upon returning to the UK. A full list of the exemptions can be found here. They may however be eligible for the ‘Test to Release’ scheme (see above for more details).
Where employers know that employees are taking annual leave and are likely to be visiting a country which may not be on the travel corridor list at the time of their return to the UK, they should discuss the self-isolation requirements with the employee before they go away to ensure they understand the rules that apply on their return. Employers should agree how the employee's return will be managed. Consider working from home, unpaid or paid leave, or further annual leave to cover any self-isolation periods.
Guidance has been produced on self-isolating after returning to the UK to help employers and employees.
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.
Coronavirus: testing for people travelling to England and Wales
From 4am 18 January 2021, passengers (including British citizens) arriving by boat, plane or train from all international destinations are required to present a negative COVID-19 test result before departing for England or Wales. The test must have been taken up to 72 hours prior to departure. Passengers will be subject to an immediate fine of £500 if they fail to comply with the new requirement. Passengers arriving from countries not on the government’s travel corridor list must self-isolate for 10 days regardless of their pre-departure test result to provide further protection from those travelling from high-risk countries.
Passengers will need to find their own test provider and ensure it meets the required standard.
Test results must be in English, French or Spanish – translations will not be accepted and they can be in a printed document or as an email or text message.
More detail is available online for those travelling to England and for those travelling to Wales about what counts as a suitable test, where a passenger may be able to find information on where they can source a test and what data needs to be included with the test results.
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
At the start of the pandemic working from home was encouraged but was not made compulsory as it is not possible in all cases. From 1 August 2020 the work from home guidance changed giving employers more discretion, in consultation with their employees, on how to ensure people can work safely - working from home is one way to do this, but workplaces can also be made safe by following covid-secure guidelines, for more information please see our separate ‘COVID-19 Secure – What you need to know’ Q&As. However, the latest guidance issued on 22 September 2020 is that office workers who can work effectively from home should do so over the winter. Where an employer, in consultation with their employee, judges an employee can carry out their normal duties from home they should do so. Public sector employees working in essential services, including education settings, should continue to go into work where necessary. Anyone else who cannot work from home should go to their place of work and follow COVID-secure guidelines and legislation, subject to any national or local lockdown, or other restrictions in place.
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. The Government has urged workers to help control coronavirus and travel safely by walking and cycling, if they can but where this is not possible, to use public transport or drive. When using public transport its recommended trying to avoid travel at traditional ‘peak times’ or ‘rush hours’, or to get off a stop early if it’s less busy, or walk for more of your journey where 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 entitled 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/ Some may also be advised by a doctor or healthcare professional to self-isolate for up to 14 days before going into hospital for surgery.
The standard period of self-isolation was increased on 30 July to 10 days for people with symptoms. 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, the self-isolation period has been reduced from 14 days to 10 full days, as from 10 December 2020 in Wales and 14 December 2020 in England. The self-isolation period includes the date the symptoms started (or date of the test if there are no symptoms) or the date of the last contact with the other person, and the next ten full 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.
There are plans for rapid daily testing in tier 3 areas for those who would normally have to self-isolate because they have been in close contact with someone who has tested positive. These people are tested on a daily basis and whilst they test negative, they are able to continue without the need to self-isolate. There are plans to trial this in the Liverpool area and when there is more information on the roll out of the scheme nationwide we will update this section.
From 28 September 2020, in England people who have been instructed by NHS Test and Trace to self-isolate (including those who have tested positive for coronavirus) will be required to do so by law. New fines for those breaching self-isolation rules will start at £1,000 (the same as the penalty for breaking quarantine after international travel) but could increase to up to £10,000 for repeat offences and for ‘the most egregious breaches’. There is a legal duty upon those who are legally required to self-isolate to inform their employers of this with the start and expected end date of self-isolation. This information should be given as soon as reasonably practicable and, in any event, before they are next due to start work within the isolation period. A fixed penalty notice for £50 may be issued for any breach of this requirement. Employers who prevent or try to prevent others from self-isolating will also face the same level of fines. It is still reasonable to expect those who can, to work from home whilst self-isolating but employers must not ask, encourage or expect those who are required to self-isolate to come into the work place.
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?’.
More changes were made on 26 August 2020 so that those who have been advised by a doctor or healthcare professional to self-isolate before going into hospital for surgery are also eligible for SSP.
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.
There is no legal obligation to pay full pay and it is clear that an employer need only pay SSP where an employee qualifies for it. Where possible it is good practice to consider paying full pay to prevent an employee from coming to work and risk spreading the virus to others. Employers will need to take special account of those employees who don’t qualify for SSP. In any case, however, where employers choose to pay anything more than what they are legally obliged to pay, it should be made clear how long the additional payments will last for and under what circumstances they will be paid, otherwise there is a risk that custom and practice will deem those additional payments to become a contractual right of the employee for the future. The Government has implemented emergency legislation to give those employees who are self-isolating in accordance with the law and guidance, but unable to work from home and are entitled to SSP, the right to receive payment on the first 3 waiting days of SSP, which in ordinary circumstances would normally be unpaid, however there must still be a period of incapacity for work, this is any period of four or more consecutive days, each of which is a 'day of incapacity for work'.
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 and 6 July 2020 for those in a support bubble). 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.
A new benefit has been introduced for low earners who are in receipt of Universal Credit or Working Tax Credit and are self-isolating but unable to work from home. This will start with a trial in Blackburn with Darwen, Pendle and Oldham to ensure the process works, and then will be rolled out across the county. This is a benefit which will be administered and payments made by a Local Authority and is not something which employers are involved with or have any financial liability towards.
As from 28 September 2020, in England only, those who are complying with the legal obligation to self-isolate because they have tested positive for coronavirus or have been notified by NHS Test and Trace to self-isolate, will be entitled to receive a payment of £500 from the Test and Trace Support Payment Scheme where they are eligible. This will be set by local authorities and is due to be in place from 12 October 2020. Payments will be backdated for anyone qualifying from 28 September. This is another benefit which employers are not involved with or have any financial liability towards. The benefit is for those who are unable to work from home and will lose income whilst they are legally required to self-isolate, and are currently receiving Universal Credit, Working Tax Credit, income-based Employment and Support Allowance, income-based Jobseeker’s Allowance, Income Support, Housing Benefit and/or Pension Credit. It will be payable in addition to any other employment benefits the person may already be entitled to, such as SSP.
There is temporary help for employers with less than 250 employees so that they are able to recover the first 14 days of SSP paid. 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.
If your employee is off sick with coronavirus then AWSP should be paid as normal. Where your employee has been advised to self-isolate then strictly speaking they would only be entitled to SSP as per the new legislation. However, ACAS guidance advises employers should be reasonable and treat self-isolation as sickness in accordance with their normal sickness policy. Therefore, this would suggest that employers should consider paying eligible agricultural workers AWSP where they are self-isolating.
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. From 1 August 2020 the work from home guidance changed and employers now have more discretion, in consultation with their employees, on how to ensure people can work safely - working from home is one way to do this, but workplaces can also be made safe by following covid-secure guidelines, for more information please see separate ‘COVID-19 Secure – What you need to know’ Q&As.
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 has been “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. Now that employers have more discretion on how people can work safely, discussions should be held with affected employees about the best working arrangements for the immediate future. 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 but this is balanced against the plan to return life to as near normal as possible.
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 was brought in to protect people who are clinically extremely vulnerable by minimising all interaction between those who are extremely vulnerable and others. The Government at the time were “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 previously advised people to shield until 31 July 2020 in England, and 16 August 2020 in Wales. However, the government has reinstated its advice on shielding during the national lockdown starting on 5 January 2021 and those people affected will receive letters with further advice. People falling into this extremely vulnerable group include:
From 1 August 2020, in England only, and from 16 August 2020 in Wales, those who had previously been advised to shield 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 in England and 16 August 2020 in Wales, these employees will no longer be eligible for SSP solely due to shielding. In some areas where there are local restrictions in force, the pause on shielding may be lifted and the government will write to those in the area who are deemed to be clinically extremely vulnerable and advise them to stay at home and shield.
There is still guidance in place for those who have previously been identified as clinically extremely vulnerable and have received a letter from the NHS or their doctor advising them that they fall into this group. The guidance is tailored to suit the tier that the person concerned lives and/or works in. Within the specific tier information there is further detail for those people who work.
If your employee lives with someone who has been advised to shield for the period of enhanced restrictions – they can still attend work if they cannot work from home.
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. Although the guidance on shielding has changed, you must still review and re-assess existing arrangements that have been made for any employee who was/is shielding in light of current working safely during coronavirus guidance.
Originally shielding did not fall within the scope of SSP. Legislation was 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 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.Whilst shielding is paused, there is no eligibility for SSP, even if an employee has not returned to work. In some areas where there are local restrictions in force, the eligibility for SSP may continue or be resumed if the pause on shielding is lifted for those in the area who are deemed to be clinically extremely vulnerable.
As the absence is coronavirus related, the usual three waiting days for SSP will not apply and many employers may 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 in England 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. The Welsh Government have guidance for protecting people defined on medical grounds as extremely vulnerable from coronavirus.
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.
At the end of the shielding period, employers will need to discuss with affected employees what the best arrangements are, which could include:
England
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.
Since then the guidance has been updated and now covers at least 14 different workplace settings which are allowed to be open, from outdoor environments and construction sites to factories and takeaways.
From 28 September 2020, the COVID-secure guidance will become a legal requirement and businesses who fail to comply will be subject to fines of up to £10,000.
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. The notice has been updated from the earlier version to reflect the changes made to the 2m distance rule in England. In view of this change this notice now applies to England only.
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 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.
Previously there was ‘5 Steps to working safely’ to supplement the guidance but this was withdrawn on 9 September 2020.
If you have any queries about making your workplace ‘COVID-19 secure’ please see our separate Q&A specifically dealing with these issues.
Wales
In Wales, the government have introduced 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 Welsh government have produced guidance for keeping ‘Wales safe at work’. The announcement made on 23 June by the Prime Minister concerning easing lockdown and social distancing restrictions only applies to England and therefore does not change anything in Wales. Within each sector specific guidance there is a notice for employers to display in the workplace to show their employees, customers and other visitors in the workplace, that they have followed the guidance. The regulations in Wales 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, including sector specific guidance, all of which can be found here: 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.
If you have any queries about making your workplace ‘COVID-19 secure’ please see our separate Q&A specifically dealing with these issues.
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.
An alternative to a face mask is a face covering. 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.
The English and Welsh Governments have taken different approaches as to whether face coverings should be compulsory and in what circumstances.
England
For details of where it is a legal requirement to wear a face covering in England please check the government website for the latest list of places. Examples of places on the list include:
Please see the website for the full list.
From 24 September 2020, it will be compulsory for retail, leisure and hospitality staff to wear a face covering in areas that are open to the public and where they come or are likely to come within close contact of a member of the public. This includes shops, supermarkets, bars, pubs, restaurants, cafes, banks, and the public areas of hotels and hostels. Employees who do not comply are liable to a fine of £200 unless they have reasonable excuse for not wearing a face covering. Reasons include disability, or where it would cause severe distress, for a full list of the reasons see here. However if these businesses have taken steps in line with Health and Safety Executive guidance for COVID-19 secure workplaces to create a physical barrier between workers and members of the public then staff behind the barrier will not be required to wear a face covering.
Workers in other types of settings where the public must wear a face covering, such as public transport are exempt from having to wear a face covering, although employers may consider their use where appropriate and where other mitigations are not in place, in line with COVID-secure guidelines.
Details on wearing a face covering in England and how to make your own can be found here and includes information on how to wear a face covering, the circumstances when a face covering is not necessary and links to exemption card templates. As per the guidance updated on 26 November 2020, face shields or visors may be worn in addition to a face covering, but not instead of as they do not adequately cover the nose and mouth.
Wales
On 13 July 2020 the First Minister of Wales announced three-layer face coverings will be mandatory on public transport in Wales from 27 July, including in taxis and other situations where 2m social distancing was not possible.
Since then it has become compulsory in Wales from 14 September 2020 for face coverings to be worn in shops and other indoor public places, excluding when anyone is on premises where food or drink is sold or otherwise provided, for consumption on those premises. This rule applies to the customers and staff working there. Where a person has a reasonable excuse, such as a disability, a face covering need not be worn. Full details of what may amount to a reasonable excuse can be found here. There may be occasions where employers require their staff to wear a face covering in a place which is not open to the public if social distancing can’t be maintained. It is important that you support workers in using face coverings safely. This means telling workers:
On 9th June 2020 the Welsh Government issued Guidance on Face Coverings for the public, whilst it was optional to use them. 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 and is still applicable following the change in law. Within the guidance there is detail on what may amount to a reasonable excuse for not wearing a face covering in circumstances where it would be compulsory. Specific guidance supplementing the change in law is available for employers and managers of premises here. Employers should ensure that their staff are aware of these requirements, and the limited exceptions to them. In these specific circumstances, while the primary responsibility lies with the staff member, who can ultimately be subject to a fine up to £1920, employers should also make every effort to ensure that all staff in areas open to the public comply with the law.
If your employees are employed in a setting where it is compulsory for them to wear a face covering and they refuse to wear one or are caught not wearing one you should establish if they have any legitimate reason for not wearing the face covering.
If an employee unreasonably refuses to wear a compulsory face covering it may be possible to take disciplinary action. Employers must take a reasonable approach and ensure that they have made it explicitly clear in writing when and where face coverings must be worn and also warned what possible consequences an employee may face for any breaches of a reasonable health and safety instruction like this. As with any other type of possible disciplinary matter the alleged breach should be properly investigated before taking any further action. If you are contemplating a dismissal it is important that you contact the Helpline for advice on this approach before taking any action.
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 consider what alternatives there may be such as working from home, annual leave or paid leave if you are willing to offer this.
Where there are no suitable alternatives and there is a legal requirement to self-isolate, such as when a person has been notified by NHS Test and Trace, or Test, Trace and Protect, or they are required to self-isolate because they have visited a country which is not on the travel corridor list then you must send them home. People who do not self-isolate, and employers who knowingly require or encourage someone in these circumstances to come to/stay at work can both be fined from £1000 up to £10,000.
As self-isolation in these cases is a legal requirement you should pay your employee SSP or company sick pay where they qualify for it.
If an employee is refusing to self-isolate in other cases contrary to government guidance, such as when they or someone else in their household or support bubble has symptoms but has not yet been tested, you should still encourage the employee to follow the NHS and Government guidance. Ultimately if they refuse to stay at home and you are satisfied that they should be self-isolating as per the guidance then you must send them home and tell them to stay there until their self-isolation period is completed. Depending on the circumstances this may have to be on full pay, please contact the HELPLINE for further advice in these circumstances. If you allow them to continue to work when they should be self-isolating as per the guidance, you could be fined for failing to ensure the workplace is COVID-secure.
In all cases you should encourage your employee 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. Employers are advised to follow cleaning guidance: https://www.gov.uk/government/collections/coronavirus-covid-19-list-of-guidance#guidance-for-non-clinical-settings and you should refer to our 'COVID-secure' - what you need to know’ Q&A’ for further guidance.
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. From 1 August 2020 the work from home guidance changed and employers now have more discretion, in consultation with their employees, on how to ensure people can work safely - working from home is one way to do this, but workplaces can also be made safe by following covid-secure guidelines, for more information please see separate ‘COVID-19 Secure – What you need to know’ Q&As.
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 dependents 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.
