COVID-19: Guidance for Employers in the UK

By Kate Hurn, Rachael Cage, Stephanie Creed

07-2020

The outbreak of Novel Coronavirus (COVID-19) is a worldwide pandemic and following the first case of COVID-19 in the United Kingdom, restrictions were implemented on large parts of British society. Having reviewed the effects of this lockdown on infection rates, the UK Government announced on 10 May 2020 that it would commence a phased and controlled reopening of selected sectors. At the time of writing, the majority of England is in the third phase of the controlled reopening.

The reopening of society may understandably create some questions for you and your workforce. Below we answer some key questions to clarify employers' legal obligations and support you in protecting your business and people.

Last updated: 17 July 2020.

What are employers' obligations in respect of COVID-19?

Level of restrictions

The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 were implemented in response to the COVID-19 pandemic on 25 March 2020 and contain various measures, including a requirement for certain businesses to close, such as pubs, cinemas, and hotels (apart from to permanent residents or key workers).

On 10 May 2020, the Prime Minister proposed three phases for the lifting of social restrictions imposed in response to COVID-19, and on 11 May 2020, the Government published details on the plans to lift measures (available here).  The plan confirms that for the foreseeable future, workers should continue to work from home wherever possible. Currently, England is transitioning from phase 2 to phase 3, as set out below. We note that the below measures apply to England only – the administrations in Wales, Scotland and Northern Ireland hold responsibility for their own lockdown restrictions, and as such, different time frames apply.

Under phase 1, those who cannot work from home were actively encouraged to go to work, including those in the food production, construction, manufacturing, logistics, distribution and scientific research industries. However, the government confirmed that individuals should avoid public transport where possible and maintain compliance with social distancing rules, and on 12 May 2020, published new guidance on how to make journeys more safely. The guidance states that those who have to travel to work should consider alternatives to public transport, and urges people to consider cycling, walking or driving where possible.  For those who have to use public transport, the guidance includes recommendations to:

  • keep two metres apart from others;
  • use contactless payments; and 
  • wash and sanitise hands as soon as possible before and after travel. 
For more information, please see here. The guidance also recommended wearing face coverings on public transport, although note that this is now a legal requirement (see below).

The UK entered phase 2 of the lifting of restrictions on 1 June 2020. Accordingly, the government has commenced a phased reopening in England as follows (providing that businesses can meet COVID-19 secure guidelines, as outlined in ‘Health and Safety’ below):

  • From 1 June 2020, outdoor markets and car showrooms were allowed to reopen.
  • From 13 June 2020, people are able to attend their place of worship for the purposes of individual prayer.
  • From 15 June 2020, schools reopened for certain age groups, e.g. children in reception, Year 1, Year 6, Year 10 and 12.
  • From 15 June 2020, non-essential retail shops as well as some additional outdoor attractions (e.g. drive-in cinemas, and animal attractions like zoos, farms and safari parks) were permitted to reopen.
  • From 15 June 2020, it is compulsory to wear a face covering on public transport.
All other sectors that were initially closed, including hospitality and personal care, are not able to re-open in Phase 2.

On 23 June 2020, the government outlined further changes to ease the lockdown restrictions, and Phase 3 came into force on 4 July 2020 accordingly. Pubs, restaurants and hairdressers can reopen, provided they adhere to COVID Secure guidelines. Some leisure facilities and tourist attractions have also reopened (providing that they can do so safely), including outdoor gyms, playgrounds, cinemas, museums, galleries, theme parks and libraries. Where it is not possible to stay two metres apart, updated guidance now allows people to keep a social distance of ‘one metre plus’. This means staying one metre apart, plus mitigations which reduce the risk of transmission.

Indoor gyms, swimming pools and other outdoor sports facilities are expected to reopen from 25 July 2020. Further, on 17 July 2020, the government announced that most remaining leisure facilities (namely bowling alleys, skating rinks, and casinos) will be permitted to reopen from 1 August 2020, and all close contact services such as beauticians will be able to resume from this date. Certain other “close proximity” venues, such as nightclubs and soft-play areas, will remain closed for now. The government also announced that it will update the advice on going to work from 1 August 2020. From this date, employers will be given more discretion over working arrangements, allowing employees to continue to work from home (which has been the recommendation since 26 March 2020) or alternatively, facilitate a return to the workplace. 

On 29 June 2020, the government announced a localised lockdown in the region of Leicestershire, following a surge of COVID-19 cases in the area. Following a later review, all additional restrictions imposed on areas of Leicestershire (aside from those in the ‘protected’ area) were lifted from 18 July, allowing schools, non-essential shops, bars, restaurants and hairdressers to reopen (in line with national restrictions). Additional restrictions will continue to apply in the ‘protected’ area of Leicester City and the Borough of Oadby & Wigston, although we note that schools and non-essential shops will be permitted to reopen from 24 July 2020. 

For further information and details of the area affected, please see here

On 4 July 2020, the Foreign & Commonwealth Office updated its advice against "all but essential” international travel and outlined exemptions for travel to certain countries and territories that no longer pose a high risk for British travelers. A full list of exempted destinations can be found here. Further, the UK has implemented travel corridors with various countries, and as such, individuals travelling from these countries will not be required to self-isolate for 14 days upon arrival in the UK. The travel corridors vary between UK countries – please see England, Scotland, Wales and Northern Ireland for the relevant lists. Individuals who have visited or made a transit stop in a country that is not on the list of travel corridors in the 14 days before arrival will still be required to self-isolate.

Health and Safety

Employers have a myriad of health and safety obligations relevant to COVID-19 including those under the following legislation:

  • Health and Safety at Work etc Act 1974;
  • The Management of Health and Safety at Work Regulations 1999;
  • The Workplace (Health, Safety and Welfare) Regulations 1992;
  • The Personal Protective Equipment at Work Regulations 1992; and
  • The Control of Substance Hazardous to Health Regulations 2002 

In essence, the main duties require employers to take as much care for employees and others affected by the business as is reasonably practicable.  

Where workplaces are open, government guidance states that employers should follow the “COVID-19 Secure” guidelines (published here), as soon as practicable. The guidelines cover "5 steps to working safely" to be followed by all employers, as well as twelve workplace specific guidance documents for the following industries:

  • Close contact services;
  • Construction and other outdoor work;
  • Factories, plans and warehouses;
  • Heritage locations;
  • Hotels and other guest accommodations;
  • Labs and research facilities;
  • Offices and contact centres;
  • Other people's homes;
  • Performing arts;
  • Providers of grassroots sport and gym/leisure facilities;
  • Restaurants, pubs, bars and takeaway services;
  • Shops and branches;
  • Vehicles; and
  • The visitor ceremony.
On 25 May 2020, the government updated the guidance for shops and branches to reflect industry feedback and to expand coverage of non-essential retail categories ahead of the planned reopenings. On 24 June 2020, the government updated the guidance further to reflect changes to social distancing requirements. Whilst the guidance still states that workplaces should make ‘every reasonable effort to comply with the social distancing guidelines outlined by the government’, such guidelines are now stated as ‘2m, or 1m with risk mitigation where 2m is not viable’. In accordance with the guidance, employers should consider and set out the mitigations that will be introduced in their risk assessments.

The five key points of which all employers should be aware are to: 

  1. Carry out a COVID-19 risk assessment (in line with HSE Guidance), in consultation with workers or trade unions. Employers should share the results of the risk assessment with their workforce and on their website.
  2. Develop cleaning, handwashing and hygiene procedures. Employers should support an increase in the frequency of handwashing and surface cleaning. Workplaces should be cleaned more frequently (paying close attention to high-contact objects like door handles and keyboards), and employers should provide handwashing facilities or hand sanitisers at entry and exit points, as well as hand drying facilities. 
  3. Help people to work from home by discussing home working arrangements, ensuring they have the right equipment to do so (for example remote access to work systems), including them in all necessary communications, and looking after their physical and mental wellbeing.
  4. Maintain 2 metre social distancing wherever possible. For example, by re-designing workspaces, creating one way traffic systems, using floor markings, putting up signs, avoiding sharing workstations and switching to see visitors by appointment only if possible.
  5. Where people cannot be two metres apart, manage transmission risk. For example, by considering whether an activity needs to continue for the business to operate, keeping the activity time involved as short as possible, using screens or barriers to separate people from each other, using back-to-back or side-to-side working whenever possible, staggering arrival and departure times and reducing the number of people each person has contact with by using ‘fixed teams or partnering’.  

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.

Government guidance suggests that it is good practice for employers to:

  • keep everyone updated on actions being taken to reduce risks of exposure to coronavirus (COVID-19) in the workplace;
  • ensure employees who are in a vulnerable group are strongly advised to follow social distancing guidance;
  • ensure employees who are in an extremely vulnerable group (and should be shielded) are supported to stay at home;
  • ensure that employee contact numbers and emergency contact details are up-to-date;
  • ensure that managers are able to spot symptoms of COVID-19 and are clear on any relevant processes and procedures, including sickness reporting and sick pay;
  • ensure there are appropriate places to wash hands with soap and water for 20 seconds, and encourage all employees to do so regularly; 
  • provide hand sanitiser and tissues for staff;
  • ensure spaces in the workplace are optimised to allow social distancing, wherever possible; and
  • have visible signs in the workplace reminding employees not to attend work if they have a fever or cough, and to avoid touching their eyes, nose and mouth with unwashed hands (poster and leaflet materials are available here).

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.

For employers in the care industry, a dedicated app for the adult social care workforce in England has been launched to support staff through the COVID-19 pandemic. Care workers can get access to guidance, learning resources and other supports from the Care Workforce app, which can be downloaded now. For more information, please see here.

Discrimination

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:

  • Decisions regarding which employees are given extra hours or made redundant must not be based on protected characteristics.
  • Employees should be involved in decision-making processes in a way that considers their protected characteristics. For example, employees on maternity leave should be included in workplace communications and employers should ensure that they communicate in an accessible way with disabled employees.
  • Working arrangements should be set up in a way that does not disadvantage employees with certain protected characteristics (such as those in particular age groups, disabled employees, women or pregnant employees). 

The guidance expressly states that individuals chosen for home working, reduced hours or furlough should be selected based on business requirements and not a protected characteristic. Employers are also encouraged to think about ways in which disabled employees can work from home(whether in their current role or a different role) through the making of reasonable adjustments. In addition, the "COVID-19 Secure" guidelines suggest the following steps may be necessary:

  • Understanding and taking into account the particular circumstances of those with different protected characteristics.
  • Involving and communicating appropriately with workers whose protected characteristics might either expose them to a different degree of risk, or might make any steps you are thinking about inappropriate or challenging for them.
  • Considering whether you need to put in place any particular measures or adjustments to take account of your duties under the equalities legislation.
  • Making reasonable adjustments to avoid disabled workers being put at a disadvantage, and assessing the health and safety risks for new or expectant mothers.
  • Making sure that the steps you take do not have an unjustifiable negative impact on some groups compared to others, for example, those with caring responsibilities or those with religious commitments.

What assistance is the Government providing employers?

The UK government has 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.  Under the CJRS, employers can apply for a grant that covers a percentage of furloughed employees’ usual monthly wage costs, subject to a monthly cap ("CJRS Grants"). Further CJRS Grants during the period of 1 March to 31 July 2020 will include the associated employer national insurance contributions and pension contributions (up to the level of the minimum automatic enrolment employer pension contribution) on the employee’s pay.  The percentage of furloughed employees’ usual monthly wage costs that can be reclaimed by way of CJRS Grants and the monthly cap will change during the course of the CJRS, which will be available until 31 October 2020. An overview of the key features of the CJRS, including flexible furloughing (implemented from 1 July 2020) 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:

  • A Job Retention Bonus will be introduced to help firms retain furloughed workers. Employers will receive a one-off bonus of £1,000 for each furloughed employee who is brought back to work and still employed as of 31 January 2021.
  • A new Kickstart Scheme will also be launched to create new, fully subsidised jobs for young people aged 16-24. Funding will be available for each six-month job placement and will cover 100% of the National Minimum Wage (for up to 25 hours a week per employee). 
  • Businesses will be granted a one-off subsidy of £2,000 for each new apprentice they hire under the age of 25. This is in addition to the existing £1,000 payment provided for new 16-18-year-old apprentices and those aged under 25 with an Education, Health and Care Plan.
  • The rate of VAT applied on most tourism and hospitality-related activities will be cut from 20% to 5% until 12 January 2021. 
  • A new Eat Out to Help Out scheme will provide a 50% reduction for sit-down meals in cafes, restaurants and pubs on Mondays to Wednesdays during August 2020. Restaurants will be able to claim the discount back and will be reimbursed within five working days. 

For further information on other Government financial support packages, including in respect of the self-employed, see our update here. Additionally, the Department for International Trade is hosting a series of coronavirus (COVID-19) webinars, free for SMEs across the UK. Businesses can find further details and register for webinars via great.gov.uk.

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:

  • Employers should only collect the minimum amount of information relevant for the purpose identified and must identify a lawful basis and exemption for processing such information.

    Employers must also comply with the other key data protection requirements when processing the data, including key data protection principles and obligations such as transparency and accountability, and applicable security and integrity requirements.  This includes informing data subjects of the purpose of the processing, relevant legal basis, who data is shared with, how long it will be retained for, whether it is transferred outside the EEA and any safeguards in place to protect its security on transfer, and providing information on the data subject's individual rights in relation to the data.  The employer should also ensure that it has implement taken steps to ensure that the data collected is not kept for more longer than is needed for the relevant purpose (in this case, likely to be a few weeks at most).

     
  • In the context of the pandemic, employers should in most cases be able to process such employee information on the basis of the general duty to provide a safe and secure working environment under the Health and Safety at Work etc. Act 1974. This will be limited to information used only in the context of health and safety, e.g. decisions relating to office closures or disinfecting the workplace. Where this is the ground relied on, employers would need to show that the collection of employee information is necessary to protect the health, safety and welfare of their employees, and should document their consideration of the risk to employees and any alternatives considered. Employers would need to have an appropriate policy document in place for such processing and comply with key data protection principles and obligations (such as transparency, data minimisation and security requirements).
  • The UK's national data protection authority, the Information Commissioner's Office (or "ICO" for short) has stated that it understands that "resources, whether they are finances or people, might be diverted away from usual compliance or information governance work" and that it won't penalise organisations that it knows "need to prioritise other areas or adapt their usual approach during this extraordinary period" (see the ICO's guidance available here and here and our cross-jurisdictional Q&A guide here for further details).

On 2 July 2020, the Department of Health and Social Care (DHSC) published guidance on maintaining records of staff, customers and visitors to support NHS Test and Trace. The guidance applies to establishments in the hospitality, tourism and leisure sectors (in addition to places of worship and close-contact services), and outlines (i) the information that organisations should collect (in relation to (i) staff, and (ii) customers and visitors), and how organisations can keep a temporary record of staff, customers and visitors for 21 days in a way that is proportionate, effective and manageable. The guidance states that consent is not required and that data can be requested and shared for public health and safety purposes.  Given the difficulties with obtaining valid consent in the employment context, we recommend identifying an alternative ground for processing to consent where possible, noting that this may not be possible for all circumstances (e.g. in a place of worship).  Provided an organisation follows DHSC guidance (i.e. keeps data for no longer than the 21 days referenced, is transparent, keeps this data separate from other records etc.) and generally does not go beyond what is set out in in the DHSC guidance, the organisation should be in a position to assert that they process such data in good faith in order  to comply with the guidance.

The position regarding European data privacy rules and how they impact information in the context of COVID-19 is developing. A number of EU governments have issued further guidance and have introduced emergency legislation covering the treatment and use of employee data in these extraordinary circumstances. The position will need to be kept under review as the situation evolves and further guidance becomes available.

For workplaces that are still 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.  Employers should encourage employees to heed any requirement to self-isolate and provide support to these individuals whilst in isolation, 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 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 on 13 March, 28 March, 16 April,28 May and 6 July 2020 respectively. 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 seven days; 

(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) both:

  • are defined in public health guidance as extremely vulnerable and at very high risk of severe illness from COVID-19 because of an underlying health condition; and
  • have been advised by a notification (sent to, or in respect of, them) that, in accordance with that guidance, they need to follow rigorously shielding measures for the period specified in the notification; or

(v) under the "track and trace" system effective from 28 May 2020, have both:

  • been advised by a relevant notification that they have had contact with a person who at the time of the contact was infected with coronavirus; and
  • are staying at home until the end of the period of 14 days beginning with the latest date on which that contact occurred, or (if sooner) until the date specified in the latest relevant notification.

(vi) are in a "linked household" or an "extended household" (in other words, a "support bubble") and someone in that household has COVID-19 symptoms.

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 and will cover employees who are unable to work because they (i) have coronavirus, (ii) are self-isolating and are unable to work from home, and/or (iii) they are shielding (as they are at high risk). 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 incuded in our overview of the CJRS which can be accessed here.

The government began a phased reopening of schools in England in June, but only in relation to certain year groups (as outlined above). UK schools are expected to reopen fully in September 2020.. If employees are unable to work because they need to look after their children or a relative who has coronavirus, they may be legally entitled to reasonable unpaid time off (and the right not to suffer detriment as a result of invoking this right). In addition to this statutory right, you may also have a policy on leave to care for dependents, which could be triggered in these circumstances. Such employees may also be "furloughed" under the CJRS.

Infection in the workplace

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:

  • undertake a risk assessment;
  • provide public health advice; and
  • where necessary, establish a multi-agency incident management team to manage the outbreak.

What are employers' obligations where offices are partially or fully closed?

As mentioned above, the UK government has not specifically required closure of workplaces other than those specified above (soft play centres, nightclubs, etc). However, in accordance with the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, which came into force on 26 March 2020, all individuals should work from home unless absolutely necessary. On 17 July, the government announced that the advice on going to work will be updated from 1 August 2020. From this date, employers will be given more discretion over working arrangements, allowing employees to continue to work from home or alternatively, facilitate a return to the workplace. Whatever employers decide, government advice is to consult closely with employees, and only ask employees to return to their place of work if it is safe. 

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 (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.

On 11 June 2020, The Income Tax (Exemption for Coronavirus Related Home Office Expenses) Regulations 2020 came into force. The Regulations introduce a temporary exemption for employers from income tax and National Insurance contributions under the Income Tax (Earnings and Pensions) Act 2003, for expenses reimbursed to an employee for the purchase of equipment that is obtained with the sole purpose of enabling the employee to work from home due to COVID-19. The Regulations apply to amounts reimbursed before the end of the 2020/21 tax year, and cover any equipment that would have been exempt from income tax under section 316 of ITEPA 2003 (if provided directly from the employer to the employee).

Following an ACAS-commissioned survey that found nearly two out of five employees working from home feel stressed, anxious or have experienced mental health difficulties due to their working situation, ACAS has published new guidance on managing mental health during the COVID-19 outbreak. The guidance acknowledges that it may be more difficult for employers to recognise signs of mental health problems where employees are working from home, but recommends regular contact and outlines the need to deal with any such matters sensitively and confidentially. For further information, please see 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:

  • Government CJRS Guidance:
    • 'Check if you can claim for your employees' wages through the Coronavirus Job Retention Scheme' guidance - click here
    • 'Work out 80% of your employees' wages to claim through the Coronavirus Job Retention Scheme' guidance and calculator - click here
    • 'The Coronavirus Act 2020 Functions of Her Majesty’s Revenue and Customs (Coronavirus Job Retention Scheme) Direction' - click here

See also our Coronavirus (COVID-19) page.

 
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