Setting out the legal rights during the pandemic, which are available to employees, the most common type of worker in the UK and the category who have the most protection under employment law.
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.
Coronavirus and your employment rights
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
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.
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 you earned in the same month last year
- an average of your monthly earnings from the last year
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.
- Your employer must have already had a PAYE payroll scheme in place on or before 28 February 2020 and a UK bank account.
- You must have been on your employer’s PAYE payroll on 28 February 2020. If you were hired after that, you are not covered.
- 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.
- 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.
- 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
- Your employer will need to decide to implement the scheme in your workplace.
- Your employer will need to designate you as a furloughed worker.
- 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).
- The agreement must be set out in writing and sent to you by your employer.
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.
- 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.
- 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
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.
- 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.
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 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.
- 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 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.
- 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.
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.
- 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).
- 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)
- redundancy payments
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.
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