Brixton Advice Centre – COVID 19 Employment Law FAQs
The COVID-19 crisis has caused a shock to the employment market and we are aware of some employers acting unlawfully. We are also aware that the self-employed and zero hours workers are particularly vulnerable. This guidance aims to help you understand your basic employment rights as they relate to common employment law issues arising out of the current crisis.
Disclaimer: These FAQs do not constitute any form of legal advice and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances and are not intended to be relied upon by you in making (or refraining from making) any specific decisions about your employment. This information is accurate as of 15 April 2020 (however note that changes in the law are happening very quickly at this time).
For further information please visit: https://www.acas.org.uk/, an employment solicitor or arrange a call from one of our volunteer lawyers https://brixtonadvice.org.uk/online-legal-clinic/ which has been created as part of our COVID-19 Response.
Chris Stanley – Volunteer Solicitor, Brixton Advice Centre
FAQs for all persons
My employer doesn’t seem to be following public health and safety guidance. What should I do?
You should inform your employer and try and work with them to ensure that work can be continued in a safe way in accordance with current guidance. If your employer does not respond adequately you should contact your union, or Public Health England.
FAQs for Employees
You are normally an employee if you are obliged to work set hours under an employment contract. You can check if you are employee here. You are not an employee if you are self-employed, a worker, a contractor or a company director.
- My employer wants to force me to take annual leave during the COVID-19 crisis. Do I have to take it now?
In relation to statutory holiday which is 28 days per year for a full time worker including public holidays your employer may force you to take annual leave at a specific time or within a specific period as long as they give twice as much notice as the period of holiday they wish you take holiday. (eg. if they ask you to take two weeks leave now, they must give you four weeks’ notice). However, your job contract or company holiday policy may provide you with additional rights as to whether your employer can force you to take annual leave. Even if you are not required to, you may agree to take annual leave on request.
- Are employees entitled to leave if they have new childcare responsibilities as a result of school closures?
If you are unable to do your job from home (where you can also supervise your children) you are entitled to take leave to care for dependents for a reasonable period of time. You are not entitled to be paid for this. After a reasonable period of time has expired, you may be expected to make other arrangements for childcare. You might have additional rights to compassionate leave under your job contract, or under your employer’s compassionate leave policy.
- My employer wants to put me on furlough.
1.a Do I have to agree to be put on furlough?
No, you don’t have to agree to being put on temporary leave (known as furlough) if your employer proposes this to you, unless there is a right to ‘lay off’ in your employment contract (which is quite rare). Both you and your employer must agree that you are put on furlough. If you are put on furlough, the Government will pay your employer 80% of your wages through the Coronavirus Job Retention Scheme, up to a monthly cap of £2,500. If you are an employee the Government will not pay this to you directly. The Government will pay your employer who will then pay you. You will still pay taxes on this income and must have been on your employer’s PAYE payroll on 19 March 2020 to be eligible. The Government Guidance on this scheme is here.
Your normal rights under your employment contract remain unaffected by COVID-19 and you don’t have to accept this request to change your contract. However, if you refuse furlough your employer may try and terminate your employment instead. If they do this you will be entitled to either:
- Payment in full for your notice period under your employment contract.
- Payment for redundancy if they have employed you for 2+ years. However they may not be able to make you redundant in all cases and must follow the normal rules on redundancy. IF they don’t you will be entitled to remain employed and paid in full.
1.b What will I be paid on furlough?
If both you and your employer agree and you are eligible for furlough the Government will pay your employer 80% of your salary up to £2,500 per month. Your employer may choose to pay you more than the grant, but they do not have to. Your employer should write to you setting out the terms of your furlough and get your written agreement to these terms. However, as noted above, you do not have to accept furlough and partial payment of your salary under your employment contract.
If your employer is asking that all employees accept a reduction in salary, consider whether you join up with your fellow employees or union to ensure that a fair deal is agreed for all employees. You may want to consider asking your employer whether directors and management are subject to similar restrictions (including on dividends) and if employees will be compensated for reduced wages if the company is in profit at the end of the year.
1.c What if I am on Statutory Sick Pay?
If you are on sick leave and/or self-isolating you can’t be put on furlough and will be entitled to the same sick pay as usual until you return to work. Statutory Sick Pay is now available from the first day you are off sick.
Once you return the employer may request to put you on furlough.
1.d What if I have already been made redundant?
If you were already made redundant after 19 March 2020 you should discuss with your former employer whether you can be re-hired on furlough terms, since your employer may be able to get funding to pay a portion of your salary.
1.d What can I do on furlough?
You can’t work for your employer, even part time, but you can undertake training courses or volunteer. You may be able to take on paid work from a third party employer where this is permitted under public health guidance.
- Do I need to tell the employer if I have COVID-19?
There are no current laws requiring an employee to inform their employer that they have COVID-19. However, employees are required to follow reasonable instructions of their employer including instruction not to attend the office if they are carrying the virus or have come into contact with the virus.
- Can my employer tell other employees that I have COVID-19?
Normally employee health data is considered sensitive personal data must be protected and must not shared by the employer. However, under special circumstances the employer may be able to share this data with other employees on a ‘need to know basis’ where absolutely necessarily in order to ensure a safe working environment and to ensure that other employees can take sufficient action to ensure their own safety (such as isolation).
- What if I signed a new job contract but have been told I cannot start?
If the employer doesn’t agree to delay the start date, the employer may be entitled to withdraw the job offer and pay the notice period (which could be very short at the start of the employment contract). You may be better off to agree to delay the start date of the contract by variation to your contract.
FAQs for ‘Zero Hours’ Workers
This guidance is for those on zero hours contracts and other workers.
- What payments am I entitled to?
If you earn more than £118 per week and are staying at home because of COVID-19, you may be entitled to Statutory Sick Pay paid by your employer of £94.25 per week for up to 28 weeks. This also applies if you are caring for people in the same household and therefore have been advised to do a household quarantine. You may also be entitled to company sick pay if you are entitled to it under your contract. After your 4th day off you will need a sick note which you can attain online here. This also applies to employees.
Depending on your household income you may be entitled to Universal credit but the waiting period to be enrolled could be several months.
You can be eligible for furlough (see above) if you have been on your employer’s PAYE payroll on 19 March 2020, you can be on any type of contract, including a zero-hour contract or a temporary contract.
FAQs for Self-Employed and members of partnership
The Government has opened a scheme under which it will pay self-employed persons directly a taxable grant worth 80% of your trading profits up to a maximum of £2,500 per month for the next 3 months where lost as a result of COVID-19. More information about how to apply will be provided by the Government soon here. In the mean time you will likely need to rely on an application for Universal Credit to substitute lost income through trading profits (if eligible).