Below we answer some key questions to clarify UK employers' legal obligations and support you in protecting your business and people during the COVID-19 pandemic.
Last updated: 19 October 2020.
On Wednesday 14 October, a new system of ‘tiers’ came into effect in England. The 3-tier system divides England into ‘medium’, ‘high’ and ‘very high’ alert areas, based partly on Covid-19 infection rates in relevant areas, with each tier containing increasingly more stringent local restrictions. Details of these rules are set out here. Local COVD Alert Level ‘medium’ applies across all of England, save for those areas that have specifically been designated as ‘high’ or ‘very high’. Businesses in ‘medium’ risk level areas can continue to operate, save for venues that must legally remain closed or subject to a 10pm curfew. High risk area are subject to additional restrictions on socialising, including a ban on individuals meeting anybody outside their household or support bubble in any indoor setting. In areas designated ‘very high’ risk, pubs and bars must close (unless they operate as restaurants) and people must not meet with anyone outside their household or support bubble in any setting.
More generally, since 22 September 2020, government guidance has stated that office workers should work from home, if they can do so effectively, although public sector employees in essential services should continue to go to work where necessary. Further information on the new restrictions can be found here. Details of employers’ health and safety obligations are set out further below.
Details of which businesses and venues are currently permitted to open under the current restrictions are available here. We note that these measures apply to England only – the administrations in Wales, Scotland and Northern Ireland hold responsibility for their own lockdown restrictions, and as such, different timeframes apply.
Health and Safety
Employers have a myriad of health and safety obligations relevant to COVID-19 including those under the following legislation:
Where workplaces are open, government guidance states that employers should follow the "COVID-19 Secure" guidelines (published here) as soon as practicable. This includes 14 workplace-specific guidance documents for the following industries:
On 24 September the requirement to wear face coverings in England was expanded to cover various indoor settings and to require staff working in hospitality and retail to wear them. Staff in a wide range of venues must wear a face covering when working in a part of the premises that is open to the public, and where they come, or are likely to come, within close contact of any member of the public. The government's guidance on face coverings in England has been updated to reflect these new requirements. Previous guidance that face coverings and visors should be worn in close contact services became law on the same date. The NHS Track and Trace app was also launched on 24 September, and there is now a requirement for certain premises to collect data from customers, staff and volunteers for contact tracing purposes. Government guidance can be found here.
The five key steps which all employers should take are to:
Notwithstanding the guidance relating to COVID-19, employers should ensure that they are taking any necessary steps to protect their employees in any event. All employers have health and safety obligations to keep employees informed about health risks that may arise in carrying out their duties and to ensure that working practices do not create undue risks to employees.
It is good practice for employers to:
During this time, communication with employees is key for employers. If you haven't already done so, we further recommend employers notify employees where they can access more information if they are concerned.
As with day-to-day operation of the business, employers must be mindful not to treat anyone less favourably based on a protected characteristic such as disability, race or ethnicity.
It has become apparent that the COVID-19 outbreak is having a particular impact on employees with certain protected characteristics, including female, disabled and older employees. Accordingly, the Equality and Human Rights Commission has published guidance reminding employers that discriminatory decisions may not only result in employment tribunal claims, but also reputational damage (available here). The guidance outlines examples of how discrimination may occur in the workplace during the pandemic, and reminds employers that:
The UK government introduced the Coronavirus Job Retention Scheme (CJRS) in an effort to support employers whose operations have been severely affected by COVID-19. The CJRS is also known as the "furlough" scheme, and will be available until 31 October 2020.. An overview of the key features of the CJRS, is available here.
On 8 July 2020, the Chancellor, Rishi Sunak, outlined a ‘Plan for Jobs’ to assist the UK’s recovery from the COVID-19 outbreak. Amongst others, the following measures were announced:
On 24 September 2020, the Chancellor announced the Job Support Scheme (JSS), which will be introduced from 1 November 2020 and will run for six months. Under the new scheme the government will contribute towards wages of employees who are working fewer than normal hours due to decreased demand over the winter months. Employers will continue to pay the wages of staff for the hours they work - but for the hours not worked, the government and the employer will each pay one third of their equivalent salary. In order to support only viable jobs, employees must be working at least 33% of their usual hours. The level of grant from the government will be calculated based on employee’s usual salary, capped at £697.92 per month. The JSS will be open to businesses even if they have not previously used the Job Retention Scheme and will operate in parallel with the Job Retention Bonus scheme, but employees cannot be made redundant while their employer is claiming the grant. The government has published a factsheet but we await further guidance and the publication of any regulations.
An expansion to the JSS was announced on 9 October, intended to provide financial support to areas that are experiencing local lockdown restrictions. The new measures will only apply to businesses that are required to close as a result of local lockdown restrictions and workers at these affected businesses will receive two-thirds of their salary paid for by the Government, up to £2,100 a month per employee. Businesses will not be required to top-up employees’ wages but will be required to pay National Insurance and pension contributions. Businesses will only be eligible to claim the grant while they are subject to restrictions and employees must be off work for a minimum of seven consecutive days in order to be eligible.
For further information on other UK government financial support packages, including in respect of the self-employed, see our update here.
Can employers request or require information from an employee, customer or workplace visitor about potential or actual exposure to the virus?
The question of whether an employer can ask an individual to sign a declaration about where they have been, their exposure to the virus, or be required to provide health information sits firmly in the crossover between data privacy and employment.
Aside from applicable obligations under employment law, any personal data that an employer processes, including in relation to their location or their health, must also be processed in line with the applicable privacy requirements. Information about an employee's health (such as whether the individual has been diagnosed with the virus or is suffering from any symptoms) is sensitive personal data and additional requirements and obligations will therefore apply to the processing of such data. Despite the GDPR being EU-wide legislation, the position is complex from a European data privacy perspective. We set out below the position in the UK, but also have available to you our cross-jurisdictional Q&A on important HR data related questions available here. The chart includes guidance on steps employer can or must take when re-opening the workplace (including temperature checks) in respect of employees, visitors and agency workers.
On 20 March 2020, the European Data Protection Board (the European data protection advisory body, formed of representatives of national data protection authorities) (the "EDPB") published a formal statement in relation to COVID-19. In relation to whether an employer can disclose that an employee is infected with COVID-19 to their colleagues, the EDPB advises that this should be done only where necessary (e.g. in a preventive context) and where national law allows this. In such case, the concerned employees should be informed in advance and their dignity and integrity should be protected. EU national data protection authorities have also published local guidance, referred to below and in our cross-jurisdictional Q&A guide available here.
In the UK:
For workplaces that are open, what should employers do if an employee is absent or infected?
The government’s announcement on 11 May 2020 confirmed that anyone who has symptoms, however mild, or is in a household where someone has symptoms, should not leave their house to go to work. Those people should self-isolate, as should those in their households. On 28 September, the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 came into force in England, setting out mandatory periods for self-isolation. Pursuant to these regulations, it is now an offence for an employer to knowingly permit a worker (including agency workers) to travel anywhere other than where the individual is self-isolating. This includes individuals who are required to self-isolate because they live with someone who has tested positive for Covid-19. In effect, this means that employers are now responsible for stopping workers who are required to self-isolate from leaving their home in order to go to work. Any employer who fails to do so will face a fine starting at £1,000.
Employers should provide support to individuals who are self-isolating, including by allowing such employees to work from home (where possible), and considering whether the employee can be granted any alternative work that can be completed from home during the period of self-isolation.
The statutory sick pay ("SSP") regime has been temporarily amended by a series of Regulations, which entered into force on various dates between March to July 2020. As a result, qualifying employees will be entitled to SSP if they are unable to work and self-isolate because they:
As a result, qualifying employees will be entitled to SSP if they are unable to work and self-isolate because they:
(i) have symptoms of coronavirus and are staying at home for ten days (increased from seven days from 30 July 2020);
(ii) live with someone who has symptoms of coronavirus and are therefore staying at home for 14 days;
(iii) are in the second category and then develop symptoms themselves;
(iv) under the "track and trace" system effective from 28 May 2020, have both:
(v) are in a "linked household" or an "extended household" (in other words, a "support bubble") and someone in that household has COVID-19 symptoms;. or
(vi) have been advised to self-isolate for a period of up to 14 days before their admission into hospital for a medical procedure.
Prior to 1 August, when shielding was paused, clinically extremely vulnerable people who had been advised to shield were entitled to SSP. Government guidance updated on 15 October states that the government will only reintroduce formal shielding advice in the worst affected local areas and for a limited period of time; if such steps are taken then any clinically vulnerable people in such areas who have been advised to shield will be entitled to SSP.
Where a self-isolating employee cannot work from home, employers must ensure that they receive SSP (or give them the option to use their paid leave days if they prefer). The usual waiting period of three days before SSP becomes payable has been suspended, meaning that SSP can be paid from the first day of coronavirus-related absence. These provisions apply retrospectively from 13 March 2020. By law, medical evidence is not required for the first seven days of sickness. As at time of writing, the Government guidance is that if an individual has COVID-19 or are advised to stay at home, they can get an ‘isolation note’ by visiting NHS 111 online, rather than visiting a doctor. For COVID-19 cases this replaces the usual need to provide a ‘fit note’ (sometimes called a ‘sick note’) after seven days of sickness absence.
In the event that an employee has to take sick leave due to COVID-19, eligible employers may be able to reclaim SSP payments made to employees (which are usually payable at a rate of £95.85 per week). Under the Coronavirus Statutory Sick Pay Rebate Scheme, the UK government will reimburse small and medium-sized employers (i.e. those with fewer than 250 employees as at 28 February 2020) for any SSP payments made to current or former employees for eligible periods of sick pay starting on or after 13 March 2020. The repayment from HMRC will cover up to two weeks of SSP. The online portal to make a claim launched on 26 May 2020 and can be accessed here.
Details of the interaction between furlough leave and sick leave/SSP are included in our overview of the CJRS which can be accessed here.
Following the recent expansion of quarantine requirements and the removal of certain exempted destinations from the list of travel corridors, the government has published new guidance regarding employees who are required to self-isolate for 14 days upon their return to the UK (available here).
If there is more than one case of COVID-19 associated with a particular workplace, employers should contact their local health protection team to report the suspected outbreak. The heath protection team will:
In case of a temporary business closure, employers are obliged to continue paying employees' wages in full unless there are contractual provisions that can be relied upon or parties specifically agree otherwise, for example with a view to taking advantage of the CJRS or JSS (see above).
Employers may exercise their right to require employees to take paid holiday at a specific time, provided that they comply with the relevant notice requirements. Details of the interaction between "furlough" leave and annual leave are set out in our overview of the CJRS which is available here.
Can employers discipline employees during the pandemic?
ACAS has released guidance outlining that existing employment laws and the ACAS Code of Practice on Disciplinary and Grievance Procedures continue to apply. The guidance notes that it is for an employer to decide if it would be fair and reasonable to start or continue a disciplinary or grievance procedure where an employee is (i) furloughed, (ii) working from home, and/or (iii) social distancing or following other public health guidelines.
The guidance also provides practical advice on disciplinary procedures for workers who are "furloughed" or working from home, and confirms that furloughed employees can participate in a disciplinary or grievance investigation or hearing, in certain circumstances. However, it is unclear how the ACAS guidance should be read alongside the requirement for employees to "cease all work" during furlough. It is our view that involvement in a disciplinary process may amount to "work" during the furlough period, and as such, following such guidance could mean that an employer is unable to claim for reimbursement of the employee's wages under the CJRS.
The guidance is available here.
Where can employers and employees access local and national advice?
Please find relevant guidance from the UK government as well as the Advisory, Conciliation and Arbitration Service (ACAS) here:
See also our Coronavirus (COVID-19) page.
 The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020, the Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) Regulations 2020, the Statutory Sick Pay (General) (Coronavirus Amendment) (No. 3) Regulations 2020, the Statutory Sick Pay (General) (Coronavirus Amendment) (No. 4) Regulations 2020, and the Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) (No. 2) Regulations 2020 entered into force on 13 March, 28 March, 16 April,28 May and 6 July 2020 respectively.