02 Apr 2020

It seems hard to believe that the Coronavirus job retention scheme was launched less than two weeks ago. Since then, there have been a number of developments. We summarise the main employment and immigration law changes in this article.

The Coronavirus job retention scheme

The scheme was launched on 20 March. Employees who would otherwise be redundant or laid off without pay can be designated as "furloughed" and employers can claim 80% of their gross pay up to £2,500 per month from the Treasury, plus employer's National Insurance contributions and minimum automatic enrolment pension contributions. HM Treasury published guidance on the scheme on 26 March. We are receiving a large number of enquiries from clients on how the scheme works and have put together a document to answer some of the most frequently asked questions. We have also published a set of FAQs on some of the other areas that are coming up frequently.

Online isolation notes

Individuals can now obtain isolation notes online (rather than visiting their GP), which they can use to provide evidence that they have been advised to self-isolate and cannot work, either because they have symptoms or because they live with someone who has symptoms. Employees can self-certify for the first seven days. After that, someone with symptoms or who has been advised to stay at home should obtain an isolation note by contacting the NHS website, NHS111 online or the NHS App. The note will be emailed to the individual. See the guidance here.

Drivers' hours

The Department for Transport has announced that the drivers' hours rules will be relaxed in respect of some journeys for drivers of goods vehicles from 23 March to 21 April.

Gender pay gap reporting

In a piece of good news for employers, enforcement of the gender pay gap reporting deadlines has been suspended for this year due to the Coronavirus outbreak. Reports were due by 30 March for public sector employers and by 4 April in the private sector. Employers can publish their reports voluntarily but do not have to do so.

Coronavirus Act 2020 becomes law

The Act introduces a number of emergency measures in response to the COVID-19 outbreak, including these employment-related changes:

  • The right to take unpaid emergency volunteering leave – this permits workers to leave their main job and volunteer on a temporary basis in the NHS or social care sector. A worker will need to give their employer three working days' notice and produce a certificate from an appropriate authority certifying them to act as an emergency volunteer. The period of leave is two, three or four weeks, during which the worker will receive compensation for loss of earnings and travel and subsistence expenses from the Government. Employers cannot refuse leave but will not have to pay the worker while they are volunteering. The worker has the right to return to their previous job afterwards, on no less favourable terms and conditions. It will be unlawful to subject a worker to a detriment for taking leave and it will be automatically unfair to dismiss an employee for the same reason.
  • Statutory sick pay – the waiting period of three days for SSP will be disapplied in relation to an employee whose incapacity for work is related to Coronavirus. This means that SSP will be payable from the first day of sickness or self-isolation. It will be applied retrospectively so that it covers incapacity on or after 13 March. In addition, SSP relating to Coronavirus will be funded by HMRC. This is expected to apply to employers with fewer than 250 employees and to be limited to two weeks' SSP per employee.

The right to undertake emergency volunteering leave requires secondary legislation and will take effect on a date to be appointed by the Government.

Regulations have already been made in respect of the changes to SSP and apply retrospectively from 13 March. They permit payment of SSP from day one of an employee's absence from work where the employee is incapable of working by reason of COVID-19. They also specify that a person is incapable of work because they are self-isolating (and therefore entitled to SSP) where they have symptoms of COVID-19 and are self-isolating for seven days or where they live with someone who has symptoms and are self-isolating for 14 days.

Employment tribunal and Employment Appeal Tribunal hearings

Not surprisingly, tribunal hearings have been affected by the virus. The Employment Tribunal Presidents of England and Wales and Scotland issued a Direction on 19 March, which was amended on 24 March. The effect is that all in-person hearings due to start on or before 26 June will be converted to telephone case management hearings. Hearings listed to start after 29 June will remain listed for the time being. The Direction will be reviewed on 29 April and 29 May. We are hearing of temporary closures in some tribunals, including London Central and Manchester. There may be a delay in ET1 forms being received by employers; they were being sent by email but this has stopped in some tribunals.

All hearings in the Employment Appeal Tribunal up to 15 April have been postponed. Normal time limits for lodging appeals apply and Notices of Appeal must be sent by email. A further announcement will be made before 10 April. When hearings resume, they will be by telephone, Skype or video link. 

Holiday carry forward

The Government has announced an amendment to the Working Time Regulations 1998 so that workers who have not been able to take all of their statutory annual leave entitlement due to COVID-19 will be able to carry forward up to four weeks' annual leave into the next two leave years. This will apply where it is not reasonably practicable for them to take some or all of their holiday entitlement due to Coronavirus. The remaining 1.6 weeks' holiday will not be affected. This change came into force on 26 March.

Immigration law

The Home Office has published advice for employers carrying out right to work checks during the Coronavirus pandemic. It has also published advice for Tier 2, 4 and 5 visa sponsors in the UK who are sponsoring those affected by Coronavirus.

It is not clear at the moment how the furlough scheme applies to sponsored workers. Tier 2 sponsored workers have to be paid a defined minimum salary at all times in order to maintain their visa. If their salary drops below this level, the sponsor may have to end their sponsorship and terminate the employee's employment. If a sponsored worker is put on furlough leave on 80% salary capped at £2,500 per month, this may put them below the threshold.

Employers should seek advice if they are planning to put a sponsored worker on furlough leave.