22 May 2020

Since our last article on 7 May, there have been two major announcements: the start of a return to work, and the extension of the Coronavirus Job Retention Scheme. This article looks at these issues and some other developments that HR professionals and employment lawyers need to be aware of.

Employees to start going back to work

I expect that most of us will have watched the Prime Minister's announcement on the evening of Sunday 10 May, when the main message was that if you cannot work at home, you should start going back to work.

The following day the Government published its recovery strategy, which sets out its roadmap to bring the UK out of lockdown. Although it runs to 50 pages, it is light on detail regarding the return to work and simply states: "For the foreseeable future, workers should continue to work from home rather than their physical workplace, wherever possible… All workers who cannot work from home should travel to work if their workplace is open. Sectors of the economy that are allowed to be open should be open, for example food production, construction, manufacturing, logistics, distribution and scientific research in labs."

This was followed by safer workplaces guidance, which sets out five key points for employers to implement as soon as practicable. These are described as five steps to working safely:

  • Carry out a COVID-19 risk assessment before restarting work, in consultation with workers or trade unions, and share the results with the workforce and on your website. Businesses with 50 or more employees are expected to publish it
  • Develop cleaning, handwashing and hygiene processes and increase the frequency of handwashing and surface cleaning
  • Help people to work from home
  • Maintain two metre social distancing where possible
  • Where people cannot be two metres apart, manage the transmission risk.

Businesses are advised to download a notice (available in the guidance) and display it in workplaces to show that they have followed the guidance.

In addition, the Government has published eight guides to different workplaces to make them "COVID-19 secure". They apply to England only and currently cover these workplaces:

  • Construction and other outdoor work
  • Factories, plants and warehouses
  • Labs and research facilities
  • Offices and contact centres
  • Other people's homes
  • Restaurants offering takeaway or delivery
  • Shops and branches, and
  • Vehicles (eg couriers and lorry drivers).

Employers may need to look at more than one guide in order to cover all of their operations. Other guides will be published as more businesses are able to re-open. Different guidance has been published for education and childcare facilities, and public transport operators. Acas has updated its COVID-19 guidance to refer to returning to work.

Extension of the Coronavirus Job Retention Scheme

The Coronavirus Job Retention Scheme (the Scheme) has been extended until 31 October so will last for eight months in total. The guidance no longer states that the scheme will be extended if necessary so we should assume that it will close at the end of October. There was some speculation that it might be withdrawn from some business sectors or areas of the country but the press release announcing the extension states that it will continue to apply across all regions and sectors.

However, the way in which it operates is set to change. It will continue until 31 July in its current form but from 1 August, employers using the scheme will be able to bring furloughed employees back to work part-time. From August onwards, employers will be asked to pay a percentage towards the salaries of furloughed workers. No details as to how this will work have been released yet but are expected before the end of May.

Employees will continue to receive 80% of their normal pay, up to £2,500 per month. As of last week, 7.5 million people had been furloughed (roughly a quarter of the UK workforce) across 935,000 businesses and the total claimed was £10.1 billion. Almost 800 reports of suspected fraud had been made to HMRC.

Some changes have been made to the way in which employers make claims. There is now a "save and return" option so that an employer has seven days to complete a claim, rather than being timed out after 15 minutes of inactivity. Employers need to keep a copy of all records they use to make a claim for six years.

Finally, spare a thought for those of us who are monitoring changes to the Scheme: there are now nine pieces of guidance on the Scheme, all of which were either updated or published last week. We will continue to update our FAQs (which list all the guidance, with links to the documents) when they are updated further.

New guidance on holiday entitlement and pay during coronavirus

One of the gaping holes in the guidance on the Scheme has been comprehensive information on holidays and holiday pay. In an attempt to fill this gap, BEIS published guidance on 13 May on holiday entitlement and pay during coronavirus.

The main points are:

  • Employees accrue holiday while on furlough and can take holiday without breaking their furlough
  • Employers can require workers to take holiday and cancel a worker's holiday if they give enough notice
  • However, before requiring a worker to take holiday, the employer should consider whether the need for the worker to socially distance or self-isolate (or presumably shield) would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday
  • A worker is entitled to holiday pay calculated in line with current legislation, based on normal earnings rather than furlough pay, ie 100% of normal pay, so the employer will have to top up their pay
  • Workers on furlough are unlikely to need to carry forward up to four weeks' leave to the next two holiday years (as permitted under a recent amendment to the Working Time Regulations where it is not reasonably practicable to take holiday due to the effects of coronavirus), as they will be able to take it during the furlough period, unless the employer is unable to fund the difference between furlough pay and holiday pay.

The guidance has no legal effect and employment tribunals will not be required to follow it when deciding working time and holiday pay cases. However, it provides a useful framework when looking at holiday and pay issues.

Employment tribunal news

We understand that Acas has seen a recent spike in applications for early conciliation, which would normally lead to an increase in claims, however we are seeing fewer new claims being issued by the employment tribunals (ETs). We are aware that most ETs are operating with reduced staff and until recently, at least one ET was not inputting or processing new claims or response forms so it is likely that claims are being held up in the system. Several ETs are now requiring us to send in pdf bundles for a judge working from home to work from at a preliminary hearing. Kinly Cloud Video Platform is being rolled out to the civil and criminal courts and has been used in some ETs already.

Statutory Sick Pay rebate scheme

Some months ago, it was announced that small and medium-sized employers (with fewer than 250 employees) would be able to recover coronavirus-related SSP payments made to employees. This applies to SSP paid on or after 13 March. The repayment covers up to two weeks' SSP if an employee had COVID-19, was self-isolating and unable to work from home or was shielding. The portal for making claims launches on 26 May.

This is a busy and challenging time for employers. If you have any queries on this article, please get in touch with your usual Womble Bond Dickinson contact.