The short answer is that a lot has changed since March. Employers and HR professionals have had to grapple with perhaps the most sudden and unexpected changes to employment law seen for many years. Furlough, working from home, making workplaces 'Covid-secure’ – it has been at times a bewildering pace of change (even for the employment lawyers!).

As we move into winter and Covid restrictions are being reintroduced in the UK, it is a good time to take stock of the employment law landscape and plan ahead. In this article we break down the key topics that employers and HR professionals need to be thinking about, both recapping what has changed to date and looking ahead.

Furlough and other financial support

Furlough

Update 2 November: On 31 October the UK government announced that the furlough scheme would be extended until at least 2 December due to England entering a period of lockdown from 5 November with many businesses required to close. The furlough scheme will cover 80% of wages, but employers will need to pay National Insurance Contributions and pension contributions. The introduction of the JSS has been delayed until at least 2 December.

The Coronavirus Job Retention Scheme (or furlough) will close on 31 October. Claims for the period up to and including 31 October (including changes to claims already made) can be made until 30 November.

The Job Support Scheme

The Job Support Scheme is the successor to the furlough scheme and offers financial support to employers towards wage costs. The scheme has two separate limbs: (1) the JSS Open, for employers who remain open but see a downturn in business due to Covid-19 and (2) the JSS Closed, for employers that are required to close by law due to Covid-19 restrictions.

Home working and returning to the office

Home working

A big challenge for employers since March has been the sudden shift to a radically different way of working, with remote working the norm for many. As Covid restrictions continue and attitudes towards home working (from both employees and employers) shift, increased levels of home working looks likely to remain a feature of working life.

Returning to the office

As offices closed their doors in March and employers grappled with the change to homeworking, the conversation quickly turned to how and when they could get everyone back to the office. From 1 August, offices have been able to re-open again, given that they have been made “Covid secure”. However the brakes were halted on many employers plans for a gradual office reopening, when the government changed their messaging on 22 September advising people to work from home over winter where possible.

Holiday

• New rules mean employees are entitled to roll over accrued but untaken annual leave where it was not reasonably practicable to use that leave in the current leave year “as a result of the effects of the coronavirus (including on the worker, the employer or the wider economy or society”.

• This applies from 26 March 2020.

• Carried over leave must be used in the 2 leave years following the year in which that leave accrued (meaning that leave accrued in 2020 must be taken by the end of 2022, assuming the employer’s leave year runs from 1 January – 31 December each year).

Statutory Sick Pay

A major shift in SSP has been the expansion of ‘deemed incapacity’ to include various types of self-isolation due to Covid-19 risks. Anyone falling into these categories will be entitled to SSP where they are unable to work from home (and subject to the usual eligibility requirements for SSP).

This includes:

• Those self-isolating for 10 days (or until the end of the isolation period, if earlier) because they have Covid-19 symptoms (however mild).
• Those self-isolating due to a positive Covid-19 test result.
• Those self-isolating because someone in their household has received a positive Covid-19 test result.
• Those self-isolating for 14 days (or until the end of the isolation period, if earlier) if someone in their household is isolating due to Covid-19 symptoms.
• Those who are shielding after receiving written notification from the government (not currently relevant in England and Wales as shielding has been paused).
• Those self-isolating following a notification through the contract tracing system that they have come into contact with a positive Covid-19 case and need to isolate.
• Those self-isolating for a period of up to 14 days on doctor’s advice prior to admission to hospital for surgery or other procedure.

Other key points on SSP are:

• The normal requirement for three “waiting days” before SSP becomes payable has been temporarily waived for sickness absence after 13 March 2020, meaning SSP will be payable from the first day of absence from work. This is a blanket change and also applies to sickness absence for non-Covid-19 related illness.
• From 28 March 2020, anyone notified by the UK Government’s ‘test and trace’ system that they have had contact with a confirmed Covid-19 case and are therefore required to isolate at home for 14 days will be eligible to receive SSP.
• Individuals who are self-isolating because they or someone in their household has Covid-19 or are shielding are able to obtain an ‘isolation note’ from the NHS website or NHS 111, rather than being required to visit their doctor in person, which will act as evidence for employers in relation to sick pay entitlement. ‘Isolation notes’ are not available to those who have been told to isolate by the ‘test and trace’ system. Instead employees should provide evidence of the notification received from the ‘test and trace’ system if the employer requires evidence of sick pay entitlement.
• Businesses with fewer than 250 employees will be able to claim back from the government the cost of providing SSP for up to 14 days to any employee absent from work due to Covid-19 (including if they are required under current guidance to self-isolate) where the first day of absence fell on or after 13 March 2020. The Coronavirus Statutory Sick Pay Rebate Scheme opened for claims on 26 May 2020.