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Note - this information is being continually checked and updated. 

The World Health Organization (WHO) explains that coronaviruses are a large family of viruses that cause illness ranging from the common cold to more severe diseases such as SARS (Severe Acute Respiratory Syndrome). This particular episode has been named “COVID–19”. It first appeared in December 2019 in Wuhan, China and has now spread across the globe. 

COVID-19 has been named by the WHO as a worldwide pandemic.

For a selection of letters and policies that organisations can use as a result of the outbreak, please refer to our model documents section on the coronavirus.

For a selection of frequently asked questions on furloughing employees, please refer to our article.

Recent developments

Furlough and the Job Retention Scheme

On Friday 20 March 2020, the government announced its plans for financial assistance to help organisations retain employees for an extended period of time, despite offering no work, and avoid lay-offs. Organisations who do this will can obtain a grant from the Government to cover a portion of furloughed employees’ wages.

On 2 March 2021, it was announced that the scheme would be extended to the end of September 2021. More information can be found in our FAQs.

The Job Support Scheme

On Thursday 24 September, Chancellor Rishi Sunak announced the successor to the furlough scheme; the Job Support Scheme. It was designed to continue to provide financial support to businesses struggling as a result of the coronavirus pandemic. 

The Job Support Scheme was set to launch on 1 November 2020, however this has been postponed indefinitely due to the extension of the furlough scheme (see above). 

Coronavirus SSP Rebate Scheme

The Coronavirus SSP Rebate Scheme launched on 26 May 2020. Through the use of this scheme, eligible companies will be able to claim back up to two weeks of SSP payments for coronavirus related sickness absences. Please refer to our in-depth section for more information. 

Government consultation into compulsory vaccines for the care sector

On 14 April 2021, it was announced that the government are launching a consultation into whether vaccines should be compulsory for carers. This is in response to the number of carers currently vaccinated not being considered high enough by Sage to provide the protection necessary to service users. 

The consultation sought views on the proposal, it’s scope, any potential impact it could have on staffing and safety, as well as how it is implemented and who could be exempt.

On 17 June 2021, the Government confirmed that it will make the COVID-19 vaccine compulsory for care home staff. 

Please click here for details. 

Shielding to end across Britain

The governments of England, Scotland and Wales have confirmed dates after which those considered clinically vulnerable to the coronavirus will no longer be told to shield. These are as follows:

  • From 1 April 2021 in England and Wales 
  • From 26 April 2021 in Scotland 
Right to work checks temporarily changed

In light of the 2020 coronavirus outbreak, from 30 March 2020 employers can adopt a revised process for checking right to work.

Government guidance confirms that a scanned copy or photograph of documents necessary to prove a right to work (as outlined in our in depth section) should be sent to the employer via an email or mobile app. A video call should then be arranged with the worker, where they should be asked to present their original documents to the camera. These documents should then be compared with the digital versions previously sent. The date of this check should be recorded and noted as "adjusted check undertaken on [insert date] due to COVID-19".

If a prospective employer cannot produce any of the prescribed documents, the employer should consult the Home Office Employer Checking Service.

When the coronavirus crisis ends, the date of which is currently unknown, a retrospective check should be carried out on employees who started working for the company, or required a follow-up check, during these measures. This check will need to be carried out within eight weeks of the crisis ending and be marked "the individual's contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19."

If during the retrospective check it is found that the employee does not have the right to work in the UK, they should be dismissed immediately.

For organisations that have been deemed an essential business, a usual check can still be conducted, however the validity of documents check can be done via video link provided the employer has the original documents.

If an employee has a Biometric Residence Permit or has been granted 'settled status' under the EU Settlement Scheme, they can give the employer permission to check their details online.

New rules on statutory sick pay

On Saturday 28 March, new laws surrounding the payment of statutory sick pay (SSP) were introduced.

SSP should now be paid from day one, not day four, of absences in the following situations:

  1. To someone who has the virus
  2. To someone who is self-isolating for seven days because they have even mild symptoms
  3. To someone who is self-isolating for 14 days because, whilst they don’t have symptoms, they are living with someone who has even mild symptoms.

If someone is self-isolating because they are living with someone who has symptoms, and then start to show symptoms themselves, the 14-day isolation no longer applies and they should instead self-isolate for seven days. This could prolong, or shorten, the overall period of the leave.  

The ‘SSP day one’ rules only have effect for anyone whose first day of incapacity (or deemed incapacity in the case of self-isolation) was Friday 13 March 2020 or later.

For more information, please refer to our in depth article.

 

New rules on annual leave

The Working Time Regulations have been amended to give workers an entitlement to carry over 4 weeks of their annual leave if they are unable to take it because of coronavirus. This may be because: 

  • they’re self-isolating or are too sick to take holiday before the end of their leave year
  • they’ve been temporarily sent home as there’s no work (‘laid off’ or ‘put on furlough’)
  • they’ve had to continue working and could not take paid holiday

 Leave can be carried over into the next two leave years after 2020. This only applies to the first four weeks of leave under the Regulations. The other 1.6 weeks of stat min leave is already capable of being carried over to the next leave year with agreement from the employer and the new laws do not change this. This means that all stat min annual leave accrued in this leave year is now capable of being carried over, in the following way: 

  • 4 weeks (legal entitlement to be carried over to next two leave years)
  • 1.6 weeks (employers can agree that this be carried over to the next leave year. If employers do not already have rules in place about carry over of this portion, then it would be advisable to have some now for clarity purposes (whether to allow it or not). If they have rules which do not permit carry over of this portion to the next leave year, they may want to consider relaxing these)
  • Anything above stat min (down to employer’s rules and some employers already have rules on employer buy back)

 Bank holidays that cannot be taken because of the above reasons are within the carry over rules.

 Annual leave continues to accrue during lay off/furlough.

The World Health Organization (WHO) explains that coronaviruses are a large family of viruses that cause illness ranging from the common cold to more severe diseases such as SARS (Severe Acute Respiratory Syndrome). This particular episode has been named “Covid-19” and appeared in December 2019 in Wuhan, China.

Symptoms include fever, cough, shortness of breath and loss or change to the sense of smell or taste. Some people will suffer from mild illness and recover easily whilst, in other cases, infection can progress to pneumonia. Reports suggest that the elderly, those with weakened immune systems, diabetes, cancer and chronic lung disease are the most susceptible to serious illness and death.

Symptoms can appear in as few as two days after infection but it is thought that it can take up to 24 days.

Employees who experience symptoms should follow Government advice on reporting this, which may include either internet or telephone services depending on the individual’s location in the UK. Note that this may not include calling 111, which had been the original advice.

The virus is most likely to spread from person to person through:

  • direct contact with a person while they are infectious;
  • contact with droplets when an infected person coughs or sneezes; or
  • touching objects or surfaces (such as drinking mugs or desks) that were contaminated by droplets from secretions coughed or sneezed from an infected person with a confirmed infection, and then touching your mouth or face.

Employers have a duty of care towards their employees which includes not exposing them to unnecessary risk. In this case, that may include not putting them in a position in which they could become infected by the virus without taking all reasonable precautions.

This duty of care, where Coronavirus is concerned, may differ depending on an employee’s specific circumstances, for example, if they are older or they have underlying conditions.

It’s important to remember that  employees will be worried about the virus. In addition to having a duty of care to protect health and safety, employers  also need to consider their wellbeing. Consider any wellbeing initiatives the company offers and remind employees of them, for example, an Employee Assistance Programme.

On 17 March 2020, the Government advised against all non-essential foreign travel to tackle the spread of the virus.

Employers should assess whether work related travel is essential, especially given that the ‘travel corridor exemption’ countries (those where no quarantine is required on arrival in the UK) change frequently and at very short notice.

Where an employee does travel on business, always know where they are and where they are going. Ensure they are given clear instructions on hygiene to reduce the risk of picking up the virus. If employees do report symptoms of the virus while they are travelling, you will have to support them.

Have a plan in place in advance of travel, setting out what the employee should do if they feel ill.

 

When the initial ‘lockdown’ announcement came in March 2020, very many businesses implemented a short notice temporary home working arrangement when workers were “advised” to work from home where possible.

Since then, there have been several adjustments to the advice on working from home in England. Currently, the Governments in England, Scotland and Wales are advising that people should work from home where they can. It is unlikely that this advice will change before late June 2021.

When measures were first implemented to protect people from contracting the virus, the Government stated that certain people who fell into the ‘vulnerable’ category were “strongly advised” to work from home, where possible. This category includes people who are 70 years old or over; women who were pregnant and those who have an underlying health condition such as diabetes, asthma, heart disease etc.

There was, and still is, no instruction for employees in the above categories to self-isolate  meaning that where it was not feasible for an employee to work from home, they could still be in work but ensure precautions should have been put place to protect their wellbeing. An employee in one of the above categories who wished to remain at home but could not work from home was technically withdrawing their services and will not be entitled to pay. However, employers may have chosen to show leniency in this situation, given the circumstances, and pay an amount equivalent to SSP or full pay. It should be noted that the SSP equivalent payment did not qualify for recovery from the Coronavirus SSP Rebate Scheme which allows employers with fewer than 250 employees to recover coronavirus related SSP payments to a maximum of 2 weeks payment per employee, because the individual is not under Government guidance to self-isolate. 

On the other hand, if the employee was happy to present themselves for work but the employer does not wish to take any risks and, as a precautionary measure, sent the employee home, the employee was entitled to full pay unless the contract says otherwise.

Alternatively, the employer may have chosen to try to agree/enforce a period of annual leave if the employee could not work from home.

People who are at particularly high risk were categorised as “clinically extremely vulnerable”. This includes people who have certain types of cancer, have had an organ transplant, severe asthma etc were urged to stay at home to “shield” themselves. Such individuals received a letter from the NHS initially advising them to stay indoors and avoid all face to face contact with other people for 12 weeks; very strict advice applied on how they should do washing, prepare meals etc. Although subsequently paused, shielding was reinstated during further lockdowns.

Shielding was paused in from 1 April 2021 in England and Wales, and from 26 April 2021 in Scotland. It is subject to reinstatement and those who are advised to shield will receive fresh notification in relation to each period.

The Government is advising that certain people should self-isolate. This is required for those:

  • who have any symptoms of COVID-19
  • who have tested positive for COVID-19
  • who live with someone who has symptoms or tested positive
  • where someone in their childcare or support bubble has symptoms and they have been in close contact with them since their symptoms started or during the 48 hours before they started
  • where someone in their childcare or support bubble tested positive and they have been in close contact with them since they had the test or in the 48 hours before their test
  • have been told they have been in contact with someone who tested positive
  • have been advised to self-isolate at home for a period before their admission date to hospital for a procedure
  • they have arrived in England from abroad (not including Ireland, the Channel Islands, the Isle of Man or other parts of the UK) and need to quarantine.

Self-isolation is generally for a period of 10 days, but remain at 14 days prior to a hospital admission.

On 28 September 2020, the Health Protection (Coronavirus Restrictions) (Self-isolation) (England) Regulations 2020 came into force in England which introduced various criminal offences in respect of self-isolation. It is now an offence for an employer to knowingly allow a worker to attend any place for any purpose relating to their employment during the designated period of self-isolation. Breaches of this law can result in a fixed penalty notice of £1000 for the first offence increasing to £10,000 for repeated offences.

The terminology here is important; a breach is not restricted to an employer's requirement for the employee to attend the workplace, or even a request. It is also not restricted to attendance at the workplace, but covers attendance at any place for any purpose relating to their employment.

The employer must be aware of the employee’s need to self-isolate, and of any breach of the self-isolation requirement by the employee. Workers are now under a legal obligation to inform their employer of the need to self-isolate; however, this only applies where the employee is not already working from the place they are self-isolating which is likely to be their home. Therefore, this will not apply when the employee is already working from home.

Employers may wish to confirm this stance to their employees by reminding them of the need to inform the employer of the requirement to self-isolate, and that they are prohibited from attending the workplace, or any other place for the purposes of work, during the self-isolation period.

Emergency legislation put in place requires statutory sick pay (SSP) to be paid to those self-isolating as described above in order to prevent the infection or spread of the virus in accordance with public health guidance, who is then unable to work as a result, providing they meet the other eligibility criteria.

Where the first day of absence was 13 March 2020 or later, SSP is payable from day one for anyone self-isolating, provided that other eligibility criteria are met including that the employee earns at least the lower earnings limit, and has been absent for at least 4 days in order to create a ‘period of incapacity for work’.

Those advised to shield on or after 16 April 2020 were entitled to SSP, again, subject to the qualifying criteria. The maximum length of SSP payment (28 weeks), should be remembered here; shielding periods can be long and, if other periods of absence are ‘linked’ under SSP rules, it is possible a shielding employee could exhaust their SSP entitlement. However, it is likely that employers may seek to agree furlough, subject to meeting the qualifying criteria, with a shielding employee due to the apparent difference in treatment of furlough for such individuals.

In addition, measures have been put in place for employees to obtain medical evidence from NHS 111 rather than their own GP. “Isolation notes” will provide you with evidence that your employee has been advised to self-isolate. You may ask for this document to evidence absence of over seven days, in the same way as with a normal “fit note” from the GP. As with normal sickness absence, no isolation note will be issued for the first seven days, during which employees can self-certify.

The notes can be accessed through the NHS website and NHS 111 online. The note will be emailed to the employee, or in some cases, directly to you.

In respect of those who need to shield, the letter received from the NHS advising the individual to shield is sufficient evidence for employers for payment of SSP.

In respect of those who have received a notification informing them of close contact with someone who has tested positive for coronavirus, the notification they received can be used as evidence.

Employers may be able to agree a period of homeworking during self-isolation or shielding provided the employee remains fit for work, or annual leave, in which case full pay will be maintained.

Until 4am on Monday 18 January 2021, a system of travel corridor exemptions was in place which dictated whether self-isolation was required upon arrival in into the UK. Those arriving in the UK from a country on the exemption list did not need to self-isolate; where a country was on the list, those travelling from there to the UK had to self-isolate for 10 days.

The travel corridor exemptions have been suspended. This means that the requirement to self-isolate applies to all arrivals into the UK. The self-isolation period lasts for 10 days unless the individual produces a negative coronavirus test at least 5 days after arrival.

A new alert system is to be put in place in England which will require hotel quarantine for those returning from a ‘red’ country; testing and self-isolation for those returning from an ‘amber’ country and testing for those returning from a ‘green’ country. 

Whilst the suspension means that the self-isolation requirement applies in many more instances than previously, it may also mean that employees will look to cancel annual leave because due to cancelling their travel plans. Employers are not required to agree to a request to cancel annual leave.

 When they were in place, exempt country lists could differ between England, Scotland, Wales and Northern Ireland. For lists as they applied before the suspension, see below:

The self-isolation, where employees maintain their travel plans, will potentially turn one week of annual leave into a much longer period of absence etc.

When an annual leave request is received, employers should:

Statutory sick pay is not payable to those who self-isolate on return from overseas.

The self-isolation period remains in place despite the requirement for those arriving in the UK to produce a negative coronavirus test shortly before leaving the country they are in, a measure in force from 18 January 2021.

Your normal sickness absence and pay policy will apply to employees who have Coronavirus. SSP is now payable from day one of absence, rather than day 4, for employees whose first day of incapacity due to the virus was on or after 13 March 2020, provided that other eligibility criteria is met including that the employee earns at least the lower earnings limit, and has been absent for at least 4 days in order to create a ‘period of incapacity for work’.

Employers should consider how to support an employee who is diagnosed with “long-COVID”. Acas guidance states that long-COVID should be treated by an employer in the same way as it would treat other medical conditions.

Common symptoms include:

  • extreme tiredness (fatigue)
  • shortness of breath
  • chest pain or tightness
  • problems with memory and concentration ("brain fog")
  • difficulty sleeping (insomnia)
  • heart palpitations
  • dizziness
  • pins and needles
  • joint pain
  • depression and anxiety
  • tinnitus, earaches
  • feeling sick, diarrhoea, stomach aches, loss of appetite
  • a high temperature, cough, headaches, sore throat, changes to sense of smell or taste
  • rashes.

Occupational health assessments are recommended in order to identify exactly how an employee is affected and how it affects their work. When an employee is ready to come back to work, employers could consider a phased return and make reasonable adjustments to the employee’s role to remove the barriers that long-COVID creates.

There is a duty to make reasonable adjustments for employees with a disability. A disability is a physical or mental impairment that has a 'substantial and long-term' negative effect on a person's ability to do normal day-to-day activities.

'Long term' means the impairment has lasted or will last for at least 12 months or can come and go or is likely to last for the rest of the person's life. An employee with long-COVID would be covered by anti-discrimination provided these tests could be met. However, Acas encourages employers to concentrate on the adjustments that can be made to support the employee rather than determining whether or not it would fall into the ‘disability’ category.

Long COVID has been found to more severely affect:

  • older people
  • ethnic minorities
  • women

Where the employer has concerns about a non-symptomatic employee (particularly if it is known or suspected that the employee has had contact with someone known to have the virus) then the best advice might be to play it safe with a brief period of suspension on precautionary grounds.

Where the employer chooses to suspend returning employees just as a precaution, it will have to be on full pay unless the contract gives them a right to suspend without pay for this reason (which is unlikely).

The employer may also wish to explore alternatives, such as permitting the employee to work from home if possible.

If an employee is worried about catching the virus and so refuses to attend work, Acas suggest listening to the employee’s concerns and offering reassurance. Take all reasonable steps to protect the health and safety of your employees and talk your employee through what you have done/will do. A COVID-secure risk assessment should be carried out and shared with employees. Further adjustments should be made for individual employees depending on their specific circumstances.

Employees are protected against dismissal or detriment if they have a reasonable belief that their workplace poses a serious and imminent threat of danger. Sharing the risk assessment and being transparent with all of the modifications made will help to dispel a reasonable belief. If the employee still refuses to come to work, this may be dealt with through the disciplinary procedure. Alternatively, you may decide to offer a period of paid annual leave or unpaid leave, or allow the employee to work from home where this is feasible.

In Northern Ireland, the equivalent of Acas is the Labour Relations Agency (LRA).

Coronavirus is not a reason to treat employees differently because of their national origin. Placing extra obligations on individuals (more robust hygiene methods, for example) just because they are from China places employers at risk of a claim of race discrimination. Extra hygiene measures, if implemented, should be required of all employees. 

Employers should be alert to ‘banter’, or more serious instances of harassment, between employees about the virus which relates to someone’s nationality or ethnicity and ensure that their zero tolerance stance to harassment is maintained.

The World Health Organisation’s standard infection control measures are: 

  • frequently cleaning hands by using alcohol-based hand rub or soap and water
  • when coughing and sneezing cover mouth and nose with flexed elbow or tissue – throw tissue away immediately and wash your hands.
  • avoid close contact with anyone who has fever and cough.
  • if you have fever, cough and difficulty breathing seek medical care early and share previous travel history with your health care provider.

On 20 March 2020, the Government instructed all bars, pubs, restaurants, theatres (including cinemas), gyms, cafes, nightclubs to close as soon as they possibly could that evening and not re-open the following day. Timelines, or “routemaps” were then created for each UK country, according to which, their businesses were permitted to re-open.

On 12 October 2020, the Prime Minister announced a three-tier alert system to apply in England. Geographical areas are allocated to one of the following categories of alert: “medium”, “high” or “very high” with increasing levels of social distancing and industry restrictions. The structure of the restrictions in each tier was re-designed to apply from 2 December 2020 when the second period of lockdown ends.

A similar alert level system was put in place in Scotland, using level 0–level 4.

In Wales, protection levels 1-4 were put in place.

On various dates in late December 2020 and early January 2021, national lockdowns were re-instated in England, Scotland and Wales.

Roadmaps, or strategic frameworks, have subsequently been developed to ease current lockdown restrictions. Different arrangements apply to each nation but are generally based around businesses being able to open in the March to June 2021 period.

Please click here for more information on the England restrictions,

Please click here for more information on the Scotland restrictions.

Please click here for more information on the Wales restrictions. 

The Government announced the Job Retention Scheme on 20 March 2020 via which businesses could apply for a grant to cover 80% of wages for employees who were being retained but not working, to a maximum of £2500 per month, in order to avoid unpaid lay off.

The Scheme will run until the end of September 2021 subject to changes in funding levels from July 2021. Until the end of June 2021, the Scheme will continue to provide 80% wage cover, to the £2,500 cap. In July, funding will drop to 70%, dropping further to 60% for August and September 2021. Maximum caps will reduce correspondingly.

Where employers or employees do not qualify for funding from such Schemes, lay-off may be an appropriate alternative. Employees who are ready and willing to work but are not provided with work (as would be the case with a temporary closure) can be placed on lay-off. Lay-off must be with full pay unless there is a provision within the contract for lay-off without pay (subject to the payment of statutory guarantee pay for employees with at least one month's service at the time of lay-off). If there is no contractual provision, you can attempt to agree with employees a period of unpaid lay-off.

This may also occur when the business itself has not taken the decision to close, but where, for example, the landlord of the building from which the business operates has decided to close its doors, meaning that no one can enter. In this situation, employers should consider whether it can temporarily move to an alternative location or permit its employees to work from home. If no other alternative can be found, a period of lay-off may be required.

For more information, please refer to our Furlough under the Job Retention Scheme (November 2020 onwards) FAQs

 

The Job Support Scheme was due to commence on 1 November after the end of the Job Retention Scheme. However, due to the extension of the Job Retention Scheme, the Job Support Scheme will not now be used.

Since 6 April 2014, employers have not been eligible to recover any SSP paid out.

However, special rules have been implemented as part of the Government’s response to coronavirus. As part of emergency legislation introduced by the Government, the entitlement to statutory sick pay (SSP) was extended.

Originally designed for only those who were unfit for work through sickness or injury, SSP is now payable to those who are self-isolating with coronavirus symptoms though are not necessarily unfit for work, those who are self-isolating because someone they live with has symptoms, and those who have been advised by their GP or NHS to ‘shield’ for a 12 week period because they are classed as at high risk of severe illness due to their medical status.

In recognition of the significantly higher level of SSP payments that employers would, as a consequence, have to make, a new Coronavirus Statutory Sick Pay Rebate Scheme was announced which would allow certain businesses to claim back SSP paid in certain circumstances.

Scheme eligibility 

Businesses eligible to use the Scheme are those which:

  • have a PAYE payroll scheme that was created and started on or before 28 February 2020
  • had fewer than 250 employees on 28 February 2020
  • are claiming for an employee who is eligible for SSP due to coronavirus.

Connected companies and charities can also use the scheme if their total combined number of PAYE employees was fewer than 250 on the 28 February 2020.

Specific eligibility criteria apply to the payment of SSP, including minimum average earnings of £120 per week. It is important to note that SSP eligibility criteria was amended where it is paid due to coronavirus; waiting days are no longer needed and payment is due from day one, not day four.

Employees are entitled to SSP due to coronavirus if they are unable to work because they:

  • have coronavirus or have symptoms of it
  • are self-isolating because someone they live with has symptoms of coronavirus
  • are shielding and have a letter from the NHS or a GP telling them to stay at home for at least 12 weeks.

The Scheme will only cover SSP paid due to coronavirus.  It does not allow recovery for any SSP paid for non-coronavirus related absence.

The Scheme covers all types of employment contracts, including:

  • full-time
  • part-time
  • employees on agency contracts
  • flexible or zero-hour contracts
  • fixed term contracts (until the date their contract ends).

A rebate can be claimed for both existing and former employees.

Recoverable amount

The maximum to be claimed is two weeks’ SSP, from the first qualifying day, per employee.

Employers can claim for periods of sickness starting on or after:

  • 13 March 2020 if the employee had coronavirus or the symptoms or is self-isolating because someone they live with has symptoms and
  • 16 April 2020 if the employee was shielding because of coronavirus.

If employers pay contractual sick pay in excess of the SSP rate, they will only be able to recover up to the weekly rate paid. The weekly rate was £94.25 before 6 April 2020 and is now £95.85. It will rise to £96.36 from 6 April 2021. 

Use of SSP Rebate Scheme and Job Retention Scheme

The Government’s Job Retention Scheme was put in place to assist employers to retain their workforce during the challenging times caused by coronavirus and avoid unpaid lay off or redundancy. It allows employers to furlough their employees and claim for a Government grant to cover 80% of their wage costs.

Employers can claim both for wages under the Job Retention Scheme and SSP under the Rebate Scheme for the same employee but not for the same period.

However, the guidance points out that state aid limits should not be breached. The maximum level of state aid that a business may receive under the EU Commission temporary framework is €800,000, though this may differ in certain industries like agriculture.

Making a claim 

An online service is available from 26 May 2020 for employer to make the rebate claim. No end date for the Scheme has yet been released.

To use the service, employers will need the Government Gateway user ID received when they registered for PAYE Online.

The following is needed for a claim to be made:

  • the employer PAYE scheme reference number
  • a contact name and phone number in case HMRC need to contact the employer about their claim
  • UK bank or building society details (bank accounts provided should accept Bacs payments)
  • the total amount of coronavirus SSP the employer paid to employees for the claim period
  • the number of employees being claimed for
  • the start date and end date of the claim period.

The start date of the claim is the start date of the earliest pay period claimed for. The end date of the claim is the end date of the most recent pay period claimed for.

Employees do not have to provide employers with a doctor’s fit note in order for a claim t be made. However, employers can ask for either:

  • an isolation note from NHS 111 if they are self-isolating and cannot work because of coronavirus or
  • the NHS or GP letter telling them to shield for at least 12 weeks because they are at high risk of severe illness if they contract coronavirus.

The Scheme will allow claims for multiple employees across multiple pay periods at the same time.

Where employers authorise agents to do PAYE online for them, the agent will be able to make the claim.

An alternative way to claim will be available where employers are not able to make an online claim, however, no details have yet been released on this method.

Record Keeping 

Employers must keep the following records for 3 years after the date that the rebate is received:

  • the dates the employee was off sick
  • which of those dates were qualifying days
  • the reason for the absence, whether this be that they had symptoms, someone they lived with had symptoms or they were shielding in line with NHS or GP advice
  • the employee’s National Insurance number.

School closures have been in place from time to time as part of the pandemic response, but schools remain open for vulnerable children and children of key workers. The Government announced that, for this purpose, those who work in the following sectors are classified as key workers.

Health and social care

This includes, but is not limited to, doctors, nurses, midwives, paramedics, social workers, care workers, and other frontline health and social care staff including volunteers; the support and specialist staff required to maintain the UK’s health and social care sector; those working as part of the health and social care supply chain, including producers and distributors of medicines and medical and personal protective equipment.

Education and childcare

This includes:

  • childcare
  • support and teaching staff
  • social workers
  • specialist education professionals who must remain active during the coronavirus (COVID-19) response to deliver this approach.

Key public services

This includes:

  • those essential to the running of the justice system
  • religious staff
  • charities and workers delivering key frontline services
  • those responsible for the management of the deceased
  • journalists and broadcasters who are providing public service broadcasting

Local and national government

This only includes those administrative occupations essential to the effective delivery of:

  • the coronavirus (COVID-19) response, and the delivery of and response to EU transition
  • essential public services, such as the payment of benefits and the certification or checking of goods for import and export (including animal products, animals, plants and food), including in government agencies and arms length bodies.

Food and other necessary goods

This includes those involved in food:

  • production
  • processing
  • distribution
  • sale and delivery
  • as well as those essential to the provision of other key goods (for example hygienic and veterinary medicines).

Public safety and national security

This includes:

  • police and support staff
  • Ministry of Defence civilians
  • contractor and armed forces personnel (those critical to the delivery of key defence and national security outputs and essential to the response to the coronavirus (COVID-19) outbreak and EU transition)
  • fire and rescue service employees (including support staff)
  • National Crime Agency staff
  • those maintaining border security, prison and probation staff and other national security roles, including those overseas.

Transport and border

This includes those who will keep the air, water, road and rail passenger and freight transport modes operating during the coronavirus (COVID-19) response and EU transition, including those working on transport systems through which supply chains pass and those constructing or supporting the operation of critical transport and border infrastructure through which supply chains pass.

Utilities, communication and financial services

This includes:

  • staff needed for essential financial services provision (including but not limited to workers in banks, building societies and financial market infrastructure)
  • the oil, gas, electricity and water sectors (including sewerage)
  • information technology and data infrastructure sector and primary industry supplies to continue during the coronavirus (COVID-19) response
  • key staff working in the civil nuclear, chemicals, telecommunications (including but not limited to network operations, field engineering, call centre staff, IT and data infrastructure, 999 and 111 critical services)
  • postal services and delivery
  • payments providers
  • waste disposal sectors.

On 23 April 2020, the Government announced that essential workers (the same list as those whose children may still go to school for those in England; actual lists may differ in Scotland and Wales) can have a coronavirus test where they “need” it.

Various schemes were subsequently set up for employers to run in house testing procedures using lateral flow tests that could be obtained for free from the Government.

Free lateral flow tests are now available for those who:

  • are aged 11 or older
  • do not have coronavirus (COVID-19) symptoms
  • have not been told to self-isolate
  • cannot get tests from work.

On 28 May 2020, the NHS test and trace service was launched in England. The service will:

  • provide testing for anyone who has symptoms of coronavirus to find out if they have the virus
  • get in touch with anyone who has had a positive test result to help them share information about any close recent contacts they have had
  • alert those contacts, where necessary, and notify them they need to self-isolate to help stop the spread of the virus.

The Government states that, by following instructions to self-isolate, people who have had close recent contact with someone with coronavirus will be protecting their family, friends, colleagues and other people around them, and will play a direct role in stopping the spread of the virus.

When someone first develops symptoms and orders a test, they will be encouraged to alert the people that they have had close contact with in the 48 hours before symptoms started. If any of those close contacts are colleagues, the person who has developed symptoms may wish to (but is not obliged to) ask their employer to alert those colleagues. At that stage, those close contacts are not advised to self-isolate, but they:

  • must avoid individuals who are at high-risk of contracting coronavirus, for example, because they have pre-existing medical conditions, such as respiratory issues
  • must take extra care in practising social distancing and good hygiene and in watching out for symptoms.

‘Close contact’ means:

  • having face-to-face contact with someone (less than 1 metre away)
  • spending more than 15 minutes within 2 metres of someone
  • travelling in a car or other small vehicle with someone (even on a short journey) or close to them on a plane.

Those who test positive will be asked, via the service, whether they have had any such close contact in the 48 hours before they developed symptoms and the time since they developed symptoms.

The service will then contact anyone they report as having had close contact with and tell them to begin self-isolation for 14 days (10 days from 10 December 2020 in Wales and from 14 December elsewhere in the UK) from their last contact with the person who has tested positive, even if they do not feel unwell.

The practical effect of this service is that many more individuals are likely to self-isolate. In addition, large parts of a workforce, or an entire workforce, may receive an alert telling them they should self-isolate because one member of the workforce has tested positive for coronavirus. Employers can help to combat this by ensuring that employees work from home where possible, or implementing strict social distancing and hygiene measures in the workplace where home working is not possible.

Although self-isolation is voluntary at this stage, the Government has stated it will be made mandatory if necessary.

The Government has put together guidance for employers, which stresses that their role in the system is vital by:

  • making their workplaces as safe as possible
  • encouraging workers to heed any notifications to self-isolate and supporting them when in isolation.

It acknowledges that, although this may seem disruptive for businesses, it is less disruptive than an outbreak of coronavirus in the workplace will be, and far less disruptive than periods in lockdown.

Employers should support employees who need to self-isolate and must not ask them to attend the workplace.

If an employee needs to self-isolate, employers should consider whether they are able to work from home. This might include finding alternative work that can be completed at home during the period of self-isolation.

Employees who cannot work from home will be entitled to receive SSP in line with the guidance on self-isolation given above due to further legislative amendments. Alternatively, the employer may agree that a period of annual leave is to be taken so that full pay is maintained, or another form of paid leave that is available to the employee.

Giving options to ensure full pay is maintained may be particularly important due to the possibility that an employee may be reluctant to self-isolate if it means a drop in pay. Employers may wish to strongly encourage employees who receive a notification to make this known, and to self-isolate, in order to protect the rest of the workforce.

The NHS test and trace service will provide a notification that can be used as evidence that someone has been told to self-isolate. This notification will be needed to make a claim to the SSP Rebate Scheme.

A similar scheme, called “test and protect” is in place in Scotland.

On 18 September 2020, the government changed its guidance surrounding the maintaining of records to track who is visiting venues within certain venues in England. It is now a legal requirement for designated venues to collect contact details for the purposes of NHS Test and Trace in England, alongside displaying official NHS QR code posters. 

  • first offence - £1,000
  • second offence - £2,000 
  • third offence - £3,000 
  • any further notices - £4,000. 

The following businesses in England now need to keep records of the working hours of their staff, and their contact details, for 21 days so that the data can be provided to NHS Test and Trace if requested. These businesses include, but are not limited to, the following:

  • hospitality
  • tourism and leisure 
  • close contact services
  • facilities provided by local authorities 

Gender pay gap reporting

The Government suspended the obligation to report on the gender pay gap in 2020 due to the coronavirus. Companies with 250 or more employees are required to submit their gender pay gap information once a year; for the private sector, the deadline is 4 April; for public sector, it is 30 March. In recognition of the extra pressure placed on businesses at this time, there was no requirement to publish the data in 2020.

The requirement to publish data returns for 2021. This means reporting on data from the snapshot date of 5 April 2020 (31 March 2020 for public sector). The Government will not consider implementing enforcement action for failure to provide 2021’s report until October 2021; this effectively gives employers a further six months past the usual deadlines for reporting data.

The Government has confirmed the following in relation to 2021 reports:

  • employees who were on furlough on the snapshot date are counted when determining whether the 250 employee threshold is met
  • employees on furlough on the snapshot date are not to be included in calculations on hourly pay
  • but employees on furlough on the snapshot date are to be included in calculations on bonuses.

Because employees who are not in receipt of full pay on the snapshot date are excluded from the reporting pool for calculations on hourly pay, the pool may be a lot smaller than usual due to the fact that a significant number of employees in the UK would have been on furlough on the snapshot date. Employers may find that the resulting gender pay gap in hourly pay is quite different from previous years. It is important, therefore, for employers to use the accompanying narrative to explain any impact on the results caused by coronavirus.

The EHRC are to delay enforcement of gender pay gap publications, for both private and public companies, until 5 October 2021. 

Annual leave

The laws on annual leave have been amended to allow more flexibility on the carry over of leave. Previously, 4 weeks of annual leave was exclusive to the year in which it was accrued, meaning it could not be carried over except where it could not be taken because of sickness absence or annual leave. The remaining 1.6 weeks of leave could be carried over to the next leave year subject to the employer’s agreement.

The restriction on carrying over the 4 weeks of leave has been lifted for circumstances where it was not reasonably practicable for a worker to take some or all of their leave as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society). Workers now have the right to carry forward leave accrued in this leave year to the next two leave years. The carry over of the 1.6 weeks’ leave is still subject to agreement from the employer.

The rules on pay in lieu of accrued holiday on termination of employment have also been amended. Pay in lieu should include an element reflecting leave which was carried over in this way but remains untaken at termination.

Modern slavery statements

The Government has relaxed the rules around compliance with modern slavery requirements. An updated Government guide makes clear that businesses must continue their activity to identify and address risks of modern slavery in their operations and supply chains but recognises the challenges presented by the virus in publishing their statement within the usual timeframe. It notes ‘reduced staff capacity’ as one such challenge. It states that “businesses which need to delay the publication of their modern slavery statement by up to 6 months due to coronavirus-related pressures will not be penalised”. The reason for any delay to the publication should be set out in the delayed statement.

Statements are required from all businesses who have an annual turnover of at least £36 million, and must normally be published within 6 months of the end of the company’s financial year.

What approach should I take towards the vaccine for my employees?

The roll out of the coronavirus vaccine signifies the biggest step yet in combating the risk posed to the public from serious illness and enables employers to begin to envisage a return to more normal operations. However, the Government has not made the take up of the vaccine mandatory so employers may have questions about their position when it comes to their employees having the vaccine.

Despite the protection that the vaccine offers to those who have it, employers should be aware that the restrictions put in place by the Government, including social distancing and other COVID secure measures, are likely to remain in place for the foreseeable future. This means that, even where employees have had the vaccine, operations will not revert to ‘normal’ for some time yet.

The approach to be taken to the vaccine by employers will be dictated by various things including their industry sector and the individual circumstances of the employee.

Whilst there are different approaches that employers may take, the most appropriate stance to take is likely to be one of encouragement to have the vaccine, rather than requirement.

Can I require my employees to have the vaccine?

Under the Health and Safety at Work Act 1974, employers have a duty to take all reasonably practicable steps to ensure the health, safety and welfare of their staff. However, it is not likely that this will include, for all employers, the requirement for all employees to have the vaccine.

Forcing employees to have the vaccine may well trigger human rights implications for the employer, as well as criminal charges of assault. Medical intervention requires an employee’s consent.

A less intrusive method of implementing a policy that requires employees to have the vaccine may still carry human rights implications as well as risks from an employment rights perspective which are covered in this guidance note.

Having a policy that requires employees to have the vaccine may, in some cases, be viewed as reasonable. This will be dictated by the individual facts of each case in question.

An employer’s position in this regard may be strengthened by:

  • an existing clause within the contract of employment stating that medical intervention is to be administered where necessary to protect the employee’s health and that of those they come into contact with at work or
  • the industry within which they operate e.g. where close contact with others is intrinsic to the role which creates a high-risk environment.

Notwithstanding the above, employers would have to balance any requirement against the reality that social distancing and other health and safety measures including the wearing of a face covering currently in place are likely to remain in place for some time; having the vaccine will not remove the need to continue to follow COVID secure measures in the workplace.

Initial research on two vaccine types has shown that transmission of COVID-19 is reduced by up to 49%. A reduction in transmission may provide further support to an employer’s position should it choose to require employees to have the vaccine.

Employers who have successfully identified alternative ways to reduce the risk of exposure, for example, by implementing homeworking, may not be in a strong position to require employees to have the vaccine.

Employers should consider whether there are any other reasonable steps that can be taken to mitigate the risk of exposure to coronavirus before requiring employees to have the vaccine.

As we explore below, some employees will have valid reasons for refusing to have the vaccine and will receive legal protection against action taken against them for this reason. Employers will, therefore, need to consider how to accommodate these individuals. Other employees who do not wish to have the vaccine may then question why that accommodation cannot be extended to them.

Can I require my care home staff to have the vaccine?

The Government held a consultation to consider whether it should make vaccinations a condition of deployment in older adult care homes. 

The Social Care Working Group of SAGE has advised that an uptake rate of 80% in staff and 90% in residents in each individual care home setting would be needed to provide a minimum level of protection against outbreaks of COVID. This is for a single dose against the current dominating variant. These rates may be lower after a second dose, but the emergence of new variants may increase these levels, so estimates of the minimum coverage level can vary.

As of 4 April 2021, 78.9% of all eligible workers in all older adult care homes had received at least their first vaccination. However, this masks significant variation at a regional, local and individual care home level. As of 8 April 2021, 89 local authorities have a staff vaccination rate under 80%, including all 32 London boroughs, while 27 local authorities have a staff vaccination rate under 70 per cent.

As a result, the Government believes there is a strong case for introducing a new requirement in order to make very high-risk environments as safe from the effects of COVID-19 as possible. It is considering introducing the requirement in care homes in England with at least one service user over the age of 65.

From an HR perspective, the following represents the main points of the proposals contained in the consultation:

  • The requirement would apply to all workers employed directly by the care home or care home provider, those employed by an agency and deployed by the care home, and volunteers deployed in the care home. It would include those providing direct care and those working in care homes doing other roles, such as cleaners and kitchen staff.
  • The Government is considering what would be an appropriate grace period for new and existing care home workers before they are required to be vaccinated.
  • It would be the responsibility of care home managers to check evidence that workers deployed in the home are vaccinated, or medically exempt from vaccination.
  • The Government is carefully considering the best way for people to prove that they have been vaccinated, or are medically exempt, to their employer. This may involve, for example, showing vaccination status on a mobile phone app.
  • Care home managers would keep a record of vaccinations as part of their staff employment and occupational health records.
  • Those who choose not to be vaccinated, where not medically exempt, will no longer be able to be deployed in a care home setting and employers will need to manage this in a way which does not destabilise the provision of safe, high quality care.

As part of the consultation, care home managers were asked to anticipate how they would respond to the requirement, with regard to staff who are not vaccinated e.g. termination of employment or redeployment.

The Government has confirmed that the vaccine will be compulsory for care home staff and it is estimated that 10,000 care homes will be affected.

This applies to care homes:

  • in England
  • who are registered with the Care Quality Commission
  • who provide nursing or personal care
  • where the staff member is not medically exempt from having the vaccine.

It also applies to:

  • all workers employed directly by the care home or care home provider
  • full time and part time workers
  • those employed by an agency and deployed by the care home
  • volunteers deployed in the care home
  • those who do not have a medical exemption to having the vaccine.

The law will be in place from October 2021 so staff will have until early 2022 to get vaccinated. Affected staff will be given a 16-week grace period to get the vaccine or face being redeployed or lose their job.

Organisations should now consider:

  • keeping good recording systems for who has had the vaccine and who has not
  • holding meetings with employees who have not had the vaccine to find out why
  • if not medically exempt, warning employees that action will be taken if they don’t have the vaccine
  • looking for alternative non-front line jobs for those who still choose not to have the vaccine
  • if no alternative job, terminating employment.

Regardless of the reason behind it, dismissals will still be unfair if the correct meetings and documentation are not used. This measure will not exempt care homes from normal employment law rules and procedures on fair dismissals.

This change currently only applies to England. Scotland and Wales have confirmed that it will not be mandating the Covid-19 vaccine for care home staff.

The Government is also considering making both the Covid vaccine and the flu vaccine mandatory for deployment in other healthcare sectors in England.

What are the risks with requiring employees to have the vaccine?

Unfair dismissal

Having a policy requiring employees to take specific action is commonly accompanied by the threat of action against those who refuse to comply with the policy, which could include dismissal.

Employees with two years’ continuous service have the right not to be unfairly dismissed. Fair dismissals require a potentially fair reason for dismissal, a fair procedure and the decision to dismiss must fall within the range of reasonable responses. It is likely that employers who proceed with dismissal of an employee for refusing to have the vaccine will rely on the ‘some other substantial reason’ ground.

Employers would need to show that it was reasonable to dismiss the employee in the circumstances, including an assessment of whether there were any other ways that the employee’s refusal could be dealt with in order to keep them in employment,  including consideration of other available roles.

Constructive dismissal

Employees may feel that the implied term of mutual trust and confidence has been breached if their employer imposes a requirement to have the vaccine, entitling them to resign in protest and claim constructive dismissal.

Discrimination

Employees may have valid reasons for refusing to have the vaccine which are connected to a protected characteristic covered by the Equality Act 2010. For example:

  • pregnancy – research is ongoing in this area but pregnant employees are advised to speak with their doctor about their individual circumstances before having their vaccine
  • medical conditions - those with certain medical conditions are advised not to have the vaccine. Some medical conditions will qualify as a disability and so be covered by the Equality Act.
  • religion or belief - some employees may refuse to have the vaccine due to their religious belief. Though it would need to be tested by an employment tribunal, those who align themselves with the anti-vax movement may argue that they are protected by the philosophical belief element of the Equality Act.

It is important, therefore, to fully understand why an employee has refused a reasonable management instruction to have the vaccine, bearing in mind the potentially personal nature of the refusal. For example, an employee trying to become pregnant may have wished not to share that information. Alternatively, an employee may have to reveal a previously undisclosed disability as their reason.

Employers should also be wary of treating employees differently whilst waiting for them to be called up for their vaccination. The current Government strategy for rolling out vaccinations is partly based on age so older employees will be vaccinated at what could be a considerably earlier stage than younger employees. This could lead to complaints of age discrimination.

Having a protected characteristic does not make dismissal impossible. Indirect discrimination, for example, can be objectively justified therefore the employer would have the opportunity to say that they had a legitimate aim for requiring the vaccine to be taken, and that there was no other less discriminatory method than dismissal (or other action) or achieving that aim.

Can I insert a clause in contracts to require employees to have the vaccine?

Where existing employees are concerned, this would mean a change to terms and conditions. Changes to contractual terms and conditions cannot generally be made without employee agreement; consultation with employees (and trade unions, where necessary) would be needed with a view to seeking agreement. To impose the change without agreement may amount to a constructive dismissal.

Where agreement is not forthcoming, you may decide to terminate the employee’s employment and re-employ them on the new terms. However, this runs the risk of unfair dismissal and specific advice should always be taken in this regard.

Including a contractual clause for new employees will need agreement from the employee to be employed on those terms.

In either case, implementation of the clause should be done in a reasonable way and take into consideration the individual circumstances of the employee in question.

How can I encourage my employees to have the vaccine?

As noted earlier, encouraging employees to have the vaccine will be the most appropriate stance for the vast majority of employers.

You may consider encouraging employee to have the vaccine in the following ways:

  • providing access to accurate and credible information about the vaccine to allow employees to make an informed decision about the vaccine, and reminding them to check the source of any information they may seek for themselves to guard against any misinformation
  • having senior management pledge to have the vaccine when it becomes available to them (but avoiding placing pressure on those staff to have the vaccine)
  • permitting time off during working hours for attendance at appointments
  • paying employees for the time off to attend an appointment
  • putting enhanced provisions in place for employees who experience any sickness caused by the vaccine.

Having a policy addressing vaccine issues will be the most appropriate vehicle to let your employees know your stance on them.

Can my shielding employees return to work once vaccinated?

Further Government advice on this topic is awaited, and specifically clarification on the effect of the vaccine on those with certain medical conditions. In addition, guidance indicates that the benefits of the vaccine do not take effect immediately.

Shielding is paused in England and Wales from 1 April 2021 and from 26 April 2021 in Scotland.  

In order to combat the spread of a new variant of the coronavirus, which looks to have originated in South Africa, the government have started implementing surge testing in the areas in which this variant has been detected.

All individuals over the age of 16 in specified postcodes are being encouraged to get a test for Covid-19 even if they are showing no symptoms of the virus. Each area will manage the distribution of large-scale testing individually and those effected are advised to seek further information from their local authority website in order to get a test.

Individuals in these locations are encouraged to adhere to the current national rules. Whilst the rules have not been amended for the areas currently showing cases of the new South African variant, organisations are encouraged to reconsider where staff can reasonably work from home.

There is no requirement on individuals in these areas to self-isolate until they have their test for Covid-19, unless they are currently doing so in compliance with self-isolation rules. If they receive a positive result, they must self-isolate for a period of 10 days. Until a positive test is received, employees who cannot reasonably work from home can continue to leave their home for work.

There are currently three ‘variants of concern’ that the scientific community have identified, which look to have originated in South Africa, Brazil and the UK. As there are concerns that these variants are more contagious and could effect the impact of the current vaccines, the government may take similar steps as and when more variants are detected in the country and organisations should be aware of this.

The so-called “pingdemic” is causing employers to run on significantly reduced staffing numbers or, in some cases, having to close down their business due to lack of staff. Until 16 August 2021, self-isolation on receipt of the NHS app notification of being a close contact of someone who has tested positive for Covid-19 is advised, though is not a legal requirement. From 16 August 2021, fully vaccinated people will not need to self-isolate when they receive an NHS app notification, as long as they provide a negative PCR test result.

How can I stop my employees from getting pinged?

It is largely out of your control when it comes to employees’ lives outside of the business and employers cannot restrict employees’ activities outside of work, especially now the vast majority of restrictions have been lifted. Employers can give staff reminders encouraging them to consider that their behaviour outside of work can affect the workplace. If employees do not receive full pay when they self-isolate, then they may be more inclined to be careful. Ensure that the workplace is Covid-secure which includes measures taken among colleagues as well as the public if there is contact with the public as part of work.

Can employees be asked to turn off the NHS app?

NHS guidance on contact tracing in England says the app can be paused in the following circumstances:

  • staff working behind a fixed screen where they are fully protected from other people
  • storing your phone in a locker or communal area, for example while working or taking part in a leisure activity like swimming
  • workers in health and social care, wearing medical grade PPE such as a surgical mask
  • healthcare workers working in a healthcare building such as a hospital or GP surgery.

Where an employer’s circumstances fall into one of those, then the app can be paused. The app then allows you to set a reminder to turn contact tracing back on after 4 hours, 8 hours or 12 hours.

Many employees have been pinged and need to self-isolate. What can be done to maintain operations?

The best position would be where the employee can work from home. If the role does not allow for this, consider whether they could be temporarily moved to another role which does allow homeworking.

If homeworking is not an option, consider the option of agency workers or other temporary workers;offering overtime to other employees, whilst being wary of working time rules on daily rest periods and maximum weekly working hours. Employers could also consider bringing forward the start date of new recruits.

Can some employees be excused from self-isolation?

Yes, though the scope of the exemption is very limited. It only applies where self-isolation notification comes via the NHS contact tracing app.

On 22 July 2021, the Government confirmed a list of 16 sectors in England where the self-isolation exemption could be used. In the small number of situations where the self-isolation of close contacts would result in serious disruption to critical services, a limited number of named workers from these sectors may be able to leave self-isolation under specific controls for the purpose of undertaking critical work only. Only workers who are fully vaccinated (defined as someone who is 14 days post-final dose) can be exempted from self-isolation.

Scotland is also due to introduce a similar exemption scheme.

This process is only intended to run until 16 August 2021, when fully vaccinated close contacts will be exempt from self-isolation.

The test that is applied when identifying if an individual could be exempt from self-isolation to attend work is whether they work in critical elements of national infrastructure and whether their absence would be likely to lead to the loss or compromise of this infrastructure resulting in one or both of the following:

  • major detrimental impact on the availability, integrity or delivery of essential services – including those services whose integrity, if compromised, could result in significant loss of life or casualties
  • significant impact on national security, national defence, or the functioning of the state.

The process is not intended to avoid all disruption to services that will result from the need for people to self-isolate. There is no blanket exemption for all workers in a sector.

Where employers believe the self-isolation of certain key employees as contacts would result in serious disruption to critical services, they should contact the relevant government department, as below.

  • Energy /Civil nuclear: contact BEIS at beisquarantine.exemptions@beis.gov.uk
  • Digital infrastructure: contact DCMS at dcms.coronavirus@dcms.gov.uk
  • Food production and supply/Waste/Water/Veterinary medicines/Essential chemicals: contact Defra at emergencies@defra.gov.uk
  • Essential transport: contact DfT at cv19pmo@dft.gov.uk
  • Medicines/Medical devices/Clinical consumable supplies: contact DHSC covid19.criticalworker@dhsc.gov.uk
  • Emergency services/Border control: contact Home Office at covid19operationsandpolicy@homeoffice.gov.uk
  • Essential defence outputs: contact MoD at spo-covidteam@mod.gov.uk
  • Local government: contact MHCLG at lgresponse@communities.gov.uk

Employers should provide information on:

  • the number of people who it is proposed would leave self-isolation
  • the roles those individuals need to perform
  • the impact failure to do this would have and when this impact is likely to materialise (for example, is it already an issue or likely to materialise in the coming days)

The relevant department will work with the Cabinet Office and the Department of Health and Social Care to agree the roles and workplaces that are likely to meet the criteria set out above on a daily basis. The relevant department will then determine whether individual cases meet the criteria set out above. Decisions will be made rapidly on a case-by-case basis and kept under review.

Where a specific case meets the criteria, the employer will receive a letter from the relevant department setting out the named critical workers designated and telling them what measures they and those workers need to follow.

Unless employers have a letter from a government department on which the workers are specifically named, employees who receive a notification via the NHS app should self-isolate as directed.

Separate arrangements are in place for frontline health and care staff.

My staff do not fall into the critical roles. Are they still required to attend work?

The legal position on self-isolation differs; isolation upon an NHS app notification is not a legal requirement; it is advisory only. Isolation due to Covid, symptoms, or being informed of a positive close contact through a track and trace system (like NHS Test and Trace), etc is a legal requirement.

An employee who receives an NHS app notification will not be breaking the law by attending work. Some employers therefore, have been asking the employee to come to work, with mitigating measures in place. However, this may not be a recommended course of action for both employment relations and health and safety reasons. It may, potentially, be seen as a breach of mutual trust and confidence leading to the employee finding they have no alternative but to resign, which could lead to a constructive dismissal claim if the employee feels strongly that they should adhere to the advice given.

Employers will need to manage that situation with other employees who may be concerned that someone who is advised to self-isolate is not doing so and is in the workplace. Other employees may be able to claim that they have a reasonable belief that the workplace poses a serious and imminent risk to their safety which they cannot reasonably be expected to avert, depending on the facts. Workers would, in this case, be protected against dismissal or detriment if they refused to come to work due to their colleague being present.

Employers who do choose this potentially controversial course should, at the very least, require the employee in question to provide a negative PCR test before being allowed back in work and then have daily lateral flow tests.

Employers also run the risk of being confused about whether the isolation is a legal requirement or not. Where it is, knowingly allowing an employee who ought to self-isolate into work is an offence and the employer could be fined; £1000 for a first offence and increases up to £10,000 for further instances.

How can I manage the self-isolation period? Will employees be paid?

Some of the available options are as follows:

  • Employee will isolate and do no work but can maintain full pay if employer chooses/has a policy to this effect.
  • Working from home (pay as normal).
  • Temporarily change role so that they can work from home (pay as normal).
  • Agree short notice annual leave request (pay as normal).
  • Enforce annual leave where there is enough time to give the correct notice (pay as normal).
  • Use up time off in lieu (pay as normal for the portion it covers).
  • Where no other arrangement made, SSP will be payable provided all eligibility criteria met which includes being on isolation for at least four calendar days. Once this “PIW” is formed, SSP will be payable from day 1 of absence. Employers with fewer than 250 employees can reclaim up to two weeks’ Covid-related SSP for each employee.
  • Where employee does not qualify for SSP, time off will be unpaid. There may be Government-led payments available dependent on circumstances.

The law allows you to cancel annual leave that has already been authorised as long as you give the minimum required notice but you should proceed with caution here. Cancelling leave which has already been authorised, in any situation, is not likely to go down well with the employee and will often lead to a loss of money for them.

It should be noted that, as of 17 March 2020, the UK government is advising against all but essential global travel for a period of at least 30 days.

No, there is no requirement for you to do this. If you have specific rules on allowing employees to cancel their leave, you should stick to these but, in the circumstances, you may decide to be more flexible and allow cancellation.

Employers should not try to implement penalty clauses for these situations. It does remain highly likely that this type of deduction will be deemed an unlawful deduction from wages and so it is not advisable to proceed in this way. 

It should be noted that, as of 17 March 2020, the UK government is advising against all but essential global travel for a period of at least 30 days.

You can expect that the employee will try to identify other methods of getting back home. If, for whatever reason, they cannot travel back, there are several ways in which you can deal with this: 

  • use their annual leave to cover the absence. The length of their absence and their remaining entitlement to annual leave will dictate the extent to which you can do this. Using annual leave like this will have to be agreed with the employee unless you take the step of enforcing annual leave on the employee, meaning you need to give them notice that you require them to take annual leave that is twice as long as the time you require them to take. For example, a week’s leave will require two weeks’ notice. The uncertainty around the length of their absence may make this tricky;
  • agree for the employee to work from where they are for now if the nature of their job allows for this and they have the equipment they need to fulfil their duties. The employee cannot insist that they work from their location if it is clearly not tenable;
  • agree that the employee uses banked time off in lieu. It is not likely that the employee would have enough lieu time to cover an extended absence;
  • agree a period of paid leave that is not annual leave;
  • agree a period of unpaid leave;
  • agree any other type of leave permitted by the contract that may be appropriate.

 

Provided there are no travel restrictions preventing the visitors entering the UK which will take the matters out of your control, it’s up to you whether to postpone the visit. Your employees may raise concerns about potential exposure to the virus and you may wish to take this into consideration, though any unreasonable resistance should be dealt with accordingly. If you decide the visit should go ahead, ensure there are robust hygiene measures in place, restrict contact between your employees and the visitors as much as reasonably possible and take more care with any of your employees who are older, pregnant, have existing respiratory conditions or those who have diabetes, chronic lung disease or cancer.

It should be noted that, as of 17 March 2020, the UK government is advising against all but essential global travel for a period of at least 30 days.

It is best to take precautionary measures seen as your employee has potentially been in contact with someone who has the virus. A period of suspension (paid unless the contract says otherwise) is advisable.

Provided there are no travel restrictions in place preventing the visit, there is little you can do to stop this happening. Ensure the employee knows what to do if they begin to feel ill during or after the visit. Suspension of the employee would probably not be appropriate in this scenario unless you know or suspect that one of the family members has the virus but this will be your decision.

It should be noted that, as of 17 March 2020, the UK government is advising against all but essential global travel for a period of at least 30 days.

There is currently no evidence that Coronavirus can be carried in packages that have originated in China and so no grounds for your employees to refuse to deal with any that are received. To allay their fears, you could consider providing gloves which will be thrown away after each use, and encourage good hand hygiene.

 

 

Yes. The government has stated that all those who contract the virus are to be provided SSP from day one of their illness, not day four, however it has not yet been confirmed when this will come into force. 

For those who are self-isolating as a result of having a fever and/or a cough, they should also be provided SSP. 

If your company has less than 250 staff, the government has announced that it will cover the payment of statutory sick pay (SSP) for a minimum of two weeks per employee. 

If you send someone home despite them not showing symptoms, you are technically acting against government advice and should continue to pay them full pay. 

Employees in this situation would be able to covert their sickness absence to annual leave, however this must be their choice; you cannot enforce such an option. 

If an employee was legally obligated to stay away from the workplace, and are unable to work from their quarantined location (such as being told not to or being too ill), they should receive SSP. 

This will not necessarily result in a business closure, however you should contact your local Public Health England protection team. They will then carry out a risk assessment, discuss with you the individuals who may have been exposed and offer further advice on the steps you should take. This will include what cleaning would be advisable. 

Usually, such a option would be difficult to enforce without an employee's consent and could even result in claims of constructive dismissal or assault. However, if the nature of the business means it cannot risk the pandemic spreading across the workforce and would need to close in this situation unless it undertook health checks, consent may not be an issue. 

Taking such measures may actually be well-received by a workforce and help to reassure them that the organisation is protecting their health and safety. 

Taking such an action will be a variation of contract. To do this, you will first need to seek the consent of your workforce. Although they may be hesitant at agreeing to this change, they may decide differently if such a change is crucial to the survival of the business and maintaining their employment. 

If staff will not agree, you may then consider dismissing and re-engaging them on the new contract, although bear in mind that this could result in an unfair dismissal claim. 

You could also seek to unilaterally impose the change although you should be mindful for the potential of claims for unlawful deductions from wages or constructive dismissal. 

Yes, such an action could place them at a detriment. You should also bear in mind government guidance on self-isolating for those who are most at risk from the coronavirus. 

Government guidance outlines the following individuals are the most at risk:

  • Individuals aged over 70
  • Women who are pregnant
  • Individuals aged under 70 with an underlying health condition. These are listed as:
     
  • chronic (long-term) respiratory diseases
     
  • chronic heart disease
  • chronic kidney disease
  • chronic liver disease
  • chronic neurological conditions
  • diabetes
  • spleen issues, for example, sickle cell disease or where an individual has had their spleen removed
  • a weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets or chemotherapy
  • being seriously overweight (a body mass index of 40 or above).