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COVID-19 and your employment rights

This page aims to set out the legal rights available to “employees”, the most common type of worker in the UK and the category who have the most protection under employment law. There are other categories of workers who may have some of the protections and rights below and so if you are not an employee, some of the rights summarised below may apply to you.

The COVID-19 situation is frequently changing and the government’s advice for employers and employees is often being updated as a result.

The information has been carefully checked and is correct as at 15 April 2020. It will be updated as often as possible as things develop and you are advised to also check the government and Acas websites for any recent developments.

It is very important to note that what we say here is likely to be widely applicable and so, we hope and intend, it is of assistance as a free resource to as many employees as possible - it cannot, however, be a substitute for legal advice about your employment rights based on your own particular circumstances.

This page will cover the following topics, please click on the headings below to jump to that topic:
 

Working during COVID-19

Current government guidance to employers and employees is that you should work from home unless it is impossible for you to do so.

Employers are expected to support their workforce to take these steps. This is likely to include agreeing more flexible ways of working.

Acas guidance for employers says that if you are working from home, your employer should:
 
  • pay you as usual
  • keep in regular contact with you
  • check on your health and wellbeing

The government recognises that not everyone can work from home.

Whether you can do so will depend on the nature of your employer’s business and also on your particular role in that business. 

If you are unable to either work from home or go into work, some of the sections of this factsheet below are likely to be relevant to your situation.

Wages and pay (including “furlough” pay)

(This section has been updated following the guidance from HMRC on 9 April 2020)

If you are continuing to carry out your normal employed role, including where you can do so from home in line with current government guidance, you should continue to receive your normal pay from your employer.

If, however, your employer is unable to operate or has no work for you to do because of COVID-19, the government’s 'Coronavirus Job Retention Scheme' may be available to help you. This scheme will allow your employer to access financial support from the government to continue paying the wages of its employees who are temporarily unable to work because there is no work for them to do. These employees are called “furloughed” workers. 

The scheme is not compulsory for employers who are in difficulty due to COVID-19. Employers need to voluntarily apply to take part in it. So, for example, if your employer has decided to permanently close its business and make its workforce redundant, you cannot compel it to put you on furlough pay instead.

Under the scheme, HMRC will pay to the employer 80% of a furloughed workers' wage costs, up to a maximum of £2,500 per month. It is up to the employer whether they pay the rest of your wage - they do not have to pay the rest. 
 
The amount of furlough pay is based on your regular, contractual pay, such as wages, compulsory commission and past overtime. The amount will not include discretionary commission (including tips) payments, non-cash payments or benefits in kind. The current guidance appears to clearly exclude discretionary bonuses from the calculation of furlough pay but that it is unclear about whether contractual bonuses are included.
 
If you’ve been employed for a full year, employers will claim for the higher of either:
  • the amount you earned in the same month last year
  • an average of your monthly earnings from the last year
If you’ve been employed for less than a year, employers will claim for an average of your regular monthly wages since you started work. The same arrangements apply if your monthly pay varies such as if you are on a zero-hour contract.

Income tax and NICs will be deducted from your furlough pay, as they would from your normal pay. If you normally make pension contributions, these will also be deducted from your furlough pay.
 
To be eligible for furlough pay, in summary:
 
  1. Your employer must have already had a PAYE payroll scheme in place on or before 28 February 2020 and a UK bank account.
  2. You must have been on your employer’s PAYE payroll on 28 February 2020. If you were hired after that, you are not covered.
  3. You can be employed full-time, part-time, by an agency, and you may also have a flexible or zero hours contract - so a broad range of employees are covered.

The scheme also potentially allows for those who have been made redundant or stopped working for their employer after 28 February 2020, but who are then re-employed by the same employer, to be covered by furlough pay.
 
The scheme does not cover you if you are on unpaid leave, such as a sabbatical or career break, unless you were put on such leave after 28 February 2020.
 
If you are on sick leave or you are self-isolating as a result of COVID-19:
  • As a minimum, you should be eligible for SSP
  • Whilst furlough pay is not intended to cover short-term absences from work due to sickness (there is a three-week minimum furlough period), your employer can nonetheless agree to furlough you for business reasons even if you are off sick. If that happens, you should no longer receive SSP and you would be classified as a furloughed employee. 
     
You can also still be furloughed if you: 
  • are shielding in line with government advice
  • need to stay home with someone who is shielding
  • are unable to work because you have caring responsibilities resulting from COVID-19
     
To access furlough pay for you:
 
  1. Your employer will need to decide to implement the scheme in your workplace.
  2. Your employer will need to designate you as a furloughed worker. 
  3. You also need to agree to this arrangement with your employer, as it would be a change in your contract of employment (unless this change is already allowed under your contract of employment, although this is unlikely to be the case).
  4. The agreement must be set out in writing and sent to you by your employer.
Your employer must not unlawfully discriminate about who it selects to be a furloughed worker. 

Once you are designated as a furloughed worker under the scheme, you must not perform any work for your employer (or any linked company). You can carry out voluntary work or training, as long as it does not provide services to, or income for, your employer.

If your contract with your current employer allows, you may also take on employment with a new employer whilst furloughed by your current employer. This will not affect your furlough pay from your current employer. You will, however, need to be able to return to work for your current employer if they decide to stop furloughing you. 

The minimum period of time for which you and your employer can agree for you to be furloughed is three weeks.

If you have been furloughed, you have the same employment rights as you did previously. This includes maternity rights, other parental rights, rights against unfair dismissal and rights to redundancy payments if you are eventually made redundant.

Sickness absence and sick pay

At the time of writing the government health advice is that you should not leave your house (including to attend work):
 
  • if you have symptoms of COVID-19, however mild. This applies for seven days from when your symptoms started.
  • if you live with others and you are the first in the household to have symptoms of coronavirus, then you must stay at home for seven days, but all other household members who remain well must stay at home and not leave the house for 14 days. The 14-day period starts from the day when the first person in the house became ill.

You should report the start of your absence to your employer in the normal way. The government advises that for COVID-19 you can get an ‘isolation note’ by visiting NHS 111 online, rather than visiting a doctor. This replaces the usual need to provide a “fit note”/“sick note” after seven days of sickness absence.

With effect from 13 March 2020, if you are an employee, you are now entitled to Statutory Sick Pay (SSP) from day one of any sickness absence related to COVID-19. This includes if you are staying at home/self-isolating because of COVID-19 symptoms, or because you have people in the same household with symptoms and therefore have been advised to self-isolate as a household. You must self-isolate for at least four days to be eligible for SSP. If you are able to work from home and are well enough to do so, you should continue to receive your normal pay and would not need to claim SSP.

You may have additional entitlements to sick pay set out in your contract of employment – if so, these should not change due to COVID-19. 
SSP currently is worth £94.25 a week. You must be employed and earn an average of at least £118 a week to be entitled to it. 
 

Childcare and time off for dependants

All employees are entitled to time off work: 
 
  • to assist a dependant who falls ill
  • to make care arrangements for a dependant who is ill 
  • due to the death of a dependant 
  • to deal with the unexpected disruption or breakdown of arrangements for the care of a dependant

A “dependant” includes your spouse, civil partner, child or parent, or a person who lives in the same household as you. It also includes people who reasonably rely on you for assistance or care (and so might include a neighbour or friend to whom you provide care or who turns to you for care or assistance in a serious emergency due to COVID-19).

You do not have an automatic right to pay for this time off, but some employers might offer pay depending on your contract or any workplace policy.

The amount of time off you can take to look after a dependant must be reasonable for the situation. 

At the time of writing, schools in England, Scotland and Wales are now closed, except for teaching some children of key workers and vulnerable children. If you need emergency time off for child care or to make new arrangements, you can:
 
  • use time off for dependants
  • use annual leave, if your employer agrees
  • discuss and try to agree arrangements with your employer. 

Your employer may be prepared to take a more relaxed and flexible approach to homeworking and allow you to work around any childcare responsibilities. Acas guidance suggests that more flexible homeworking arrangements could include:
 
  • Working different hours.
  • Agreeing that the you may not be able to work a full day or a full week.
  • Reducing work targets.
  • Being flexible about deadlines where possible.

You also have the legal right to ask your employer to work flexibly as long as you have worked for your employer for at least 26 weeks. This could include asking to change or reduce your hours so you can look after your children or dependants. Your employer must consider your request and deal with it "in a reasonable manner". If you apply to reduce your hours, then your pay is also likely to reduce too.

Emergency volunteer leave (in response to COVID-19)

This law to allow for this new type of leave from work is not yet in force, but if and when it is brought in, it will allow employees and workers to take emergency “statutory volunteer leave” in blocks of two, three, or four weeks as unpaid leave. 

A UK-wide compensation fund will be created to compensate those taking emergency volunteer leave for loss of earnings and for expenses when volunteering. This will be paid at a flat rate, yet to be announced. The type of volunteering which is covered by this scheme will also need to be made clear by the government.

Changes to your employment contract/terms and conditions

It is possible that, due to the impact of COVID-19 on its business, your employer might try to change some of your terms of employment, such as your hours of work, your duties, your pay, your benefits etc.

Changes to your terms of employment (unless already allowed under your contract of employment) cannot just be imposed by your employer without your agreement.

Proposed changes should be discussed with you. You might choose to agree to the changes, depending on what they are, to assist your employer through this crisis, in which case you should try to indicate that you are agreeing to them only temporarily. You might also be “deemed” to have agreed to the changes if your employer makes the changes and you continue to work, without complaining or objecting.

You will need to consider very carefully whether to agree to the changes proposed and what the alternatives might be if you do not, such as possible furloughing. It is also possible that if you refuse to agree to proposed changes which your employer considers are necessary, your employer might threaten to dismiss you and to only re-employ you if you agree to the new terms. Your employer may also threaten to make you redundant. We suggest that you seek legal advice, if possible, if such a threat is made.

Annual leave/holiday

During the COVID-19 outbreak, the government has recognised that it may not be possible for employees and workers who receive paid holiday to take all of their holiday entitlement, for example if you are getting to the end of your leave year with holiday still left to take. To try to address this problem, the government is introducing a temporary new law which allows employees and workers to carry over up to four weeks’ paid holiday over a two-year period, if they cannot take holiday due to COVID-19.
 
The law covers situations where it was not practicable to take leave as a result of the effects of COVID-19 (including on the worker, the employer or the wider economy or society). This is likely to include:
  • You are self-isolating or are too sick to take holiday before the end of your leave year
  • You have been “laid off” or “furloughed” and so you are not working. 
  • You have had to continue working and cannot take paid holiday.
If your employer already has an agreement in your workplace to carry over paid holiday, which is more beneficial than the new government arrangement, the existing arrangement should continue. 

If you leave your job or are dismissed during the new two-year period, any carried forward untaken paid holiday must be added to your final pay.

If you are temporarily furloughed because there is no work for you, you will still continue to build up/accrue holiday in the usual way.

Your employer does have the right to tell you when to take holiday if they need to. So, for example, if your employer decided to close for a week and tell you to use your holiday entitlement, this can be done, provided that they tell you at least twice as many days before this happens as the amount of days they need you to take i.e. if they want to close for five days and make you take annual leave over this time, they should tell you at least 10 days before the start of the closure.

If you no longer want to take time off which you had previously booked as leave, for example because your holiday has been cancelled, your employer may still make you take the time off. Your employer would need to agree for you to take this time off on a different date.

Lay-offs and short-time working

Your employer may say that, as a result of COVID-19, it needs to close down its business for a short time, or may ask you to reduce your contracted hours, and so reduce your pay. 
 
You are “laid off” if you are off work for at least one working day in this situation. “Short-time working” is when your hours are cut.
 
If this is raised with you, the first thing to ask your employer to consider is whether the furloughed worker scheme might instead be used in this situation, under which the government will instead pay you some of your normal pay if you are not working.
 
If your employer does still intend to reduce your hours by laying you off or making you work short-time, and to also reduce or withhold your pay, unless there is a clause in your contract of employment which allows your employer to do this, your employer will be acting unlawfully in breach of contract if they do not pay you your full normal pay. 
 
There is no limit for how long you can be laid off or put on short-time working. You may be able to apply for redundancy and claim redundancy pay if you are laid off for four weeks in a row or for six weeks in a 13-week period.
 
You may also be entitled to a “statutory guarantee payment” of up to £29 a day from your employer, if you are laid off or on short-time working. This is, however, limited to a maximum of five days in any period of three months. 

Redundancy 

Redundancy is basically when an employee is dismissed from their job because their employer has decided to reduce the size of its workforce. If this happens, unlike furloughing, lay-off or short-time working, redundancy ends your employment.
 
Redundancy is likely to be because your employer does not need as many employees to do the work that you do (for example because there is no demand or reduced demand) or where the workplace is permanently closing down (for example because your employer has decided to permanently close the workplace). 
 
If there is a risk of you being made redundant, your employer would normally be expected to consult with you about the possible redundancy before it takes effect and to consider alternatives, such as if there are any different roles you could carry out, and this might also include whether you could instead be “furloughed” rather than being made redundant. If your employer is continuing to remain in business, but is reducing the size of the workforce, it should follow a fair process in selecting which staff are to be kept on and which are to be made redundant – in particular, it should avoid discriminating when it makes its selection. A failure to follow a fair process, might mean that your redundancy is unfair - if you have more than two years’ employment you may be able to bring a claim for unfair dismissal. 
If your employer is considering making 20 or more staff redundant at your workplace, then additional rules about consultation may apply, including “collective consultation” with representatives of the affected employees. 
 
If you’re being made redundant, you may be eligible for a redundancy payment if you have been employed for at least two years. Your employer may have its own policy about such payments, but the minimum “statutory redundancy pay” to which you would be entitled is:
 
  • Half a week’s pay for each full year of employment that you were under 22-years-old.
  • One week’s pay for each full year of employment that you were aged 22 or older, but under 41.
  • One and half week’s pay for each full year of employment that you were aged 41 or older.

A “week’s pay” is based on your pay before tax and is currently limited to a maximum of £525 a week, rising to £538 if the dismissal is on or after 6 April 2020. Redundancy pay does not have income tax or NICs deducted.

Your employer should also give you a notice period if you are made redundant – this is a minimum of one week’s “statutory notice” for each completed year of employment, up to a maximum of 12 weeks. Your contract of employment may have a more generous notice period which would instead apply to you, if so.

If your employer ceases trading altogether (for example because it has gone into liquidation or administration) and as a result fails to pay you what you are entitled to, you can apply to the government for:
 
  • your statutory redundancy payment
  • payment of holiday pay you are owed
  • other outstanding payments like unpaid wages, overtime and commission (up to eight weeks’ worth in each case)
  • money you would have earned by working your “statutory notice” period.

Health and safety 

Your employer has a legal duty to safeguard its employees’ welfare, health and safety “so far as is reasonably practicable". 

This will include a duty to carry out risk assessments in order to control the risks around COVID-19. Areas of risk may include:
 
  • employees who are known to be in the vulnerable categories identified in the government advice (including people with certain underlying health conditions, and pregnant employees). The government has "strongly advised" those in the vulnerable categories to work from home and to avoid travelling on public transport.
  • whether there is a need for personal protective equipment (PPE).
  • how to meet the increased need for hygiene at work.
  • increased demands due to pressures at work and increased working hours.
  • increased pressure due to home working.
  • how to respond to employees with symptoms of COVID-19 in the workplace.
  • how to maintain distancing between people in the workplace so as to minimise the risk of transmission of the virus at work.  
If your employer breaches its duties, and you suffer injury or damage as a result, you may have a claim for personal injury.  
 
Acas has produced guidance for working from home which summarises both employers and employees' responsibilities in relation to homeworking and includes a section on looking after mental and physical health.

Discrimination 

It is unlawful to discriminate against or harass employees or workers because of any “protected characteristics”. Protected characteristics include sex, race, disability, age, sexual orientation, religion or belief and pregnancy/maternity. 
 
Areas where discrimination and harassment might be more likely to occur at work during the COVID-19 crisis include:
 
  • Treatment of those with certain health conditions who are at a higher risk of serious illness or death if they contract COVID-19.
  • Selection of employees who are going to be furloughed, laid-off or made redundant. Employers need to take care to avoid consciously or unconsciously discriminating when making choices about such issues and ensure that the criteria it uses to make any decisions do not disadvantage certain groups (such as those with underlying disabilities)
  • Offensive comments made towards or about colleagues (for example there have been increased reports of racism directed at those who are, or are perceived to be, of Chinese ethnic origin).

Taking legal action

If your employer has breached your legal employment rights, you may have a legal claim against them and be entitled to compensation. Most employment law claims are brought in the employment tribunal and usually have a deadline of three months less one day in which to start the process of bringing a claim. 
 
The most common employment claims to arise during the COVID-19 crisis are likely to be for:
  • unpaid wages (where your wages are reduced or not paid at all)
  • unfair dismissal (if you have over two years’ employment, in most cases – there are a few exceptions where you do not need two years’ employment) 
  • discrimination
  • redundancy payments
It is advised that you seek legal advice if wish to bring a legal claim and in particular about the actual deadline in your case for taking action. 

Employment tribunals are continuing to operate in the COVID-19 crisis but currently on a limited basis only and many tribunal hearings, until the end of June 2020, have been postponed. The situation may change with further use of technology, but any employment tribunal claim which you do bring is likely to be delayed to some extent by the impact of COVID-19.

The large majority of employment tribunal claims are normally settled by employers before any final employment tribunal hearing – however, at this uncertain time it is possible that some employers may be less willing to settle individual legal claims which are threatened or brought against them.

Normally in employment tribunal claims, you cannot claim the legal costs of bringing your case from your employer, even if you win your case. Equally your employer cannot normally claim their costs from you if you lose your case. If you do reach a settlement with your employer, however, they may be willing to pay some or possibly all of your legal costs. You should also check if you already have legal expenses insurance to cover the costs of bringing an employment tribunal claim. This insurance is usually part of a home contents insurance policy but it is worth checking any insurance policies you have.  
 
Author: Simon Cuthbert, Employment Department, Leigh Day 30.3.30

Read our blogs on the Coronavirus

Legal rights and coronavirus: Health and safety at work

Legal rights and coronavirus: Personal Protective Equipment (PPE) in the workplace

Legal rights and coronavirus: Update to ongoing inquest guidance and deaths relating to COVID-19

Legal rights and coronavirus: Travel and holiday bookings

Legal rights and coronavirus: NHS and healthcare workers 

Legal rights and coronavirus: Ongoing inquests and Coroner’s investigations

Legal rights and coronavirus: Homeworking with children in tow

Legal rights and coronavirus: Retail and supermarket workers

The Dangers of COVID-19 to the Prison Population​

This page was updated on Wednesday 15th April 2020 at 10:45am

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