Government provisions impacting businesses/employer protection responsibilities
1. What measures is the government taking to control the spread of COVID-19?
The government in England published its new guidance on "Staying alert and safe (social distancing)" on 11 May following the announcement of the plan to rebuild and return to life as near to normal as possible. The guidance encourages people to "stay alert, control the virus and, in doing so, save lives".
The key message is that it is still important for people to stay at home, unless it is necessary to go out. As previously advised, acceptable reasons for leaving the house include for certain shopping, exercise and medical requirements. However, the government has confirmed that where individuals in England are not able to work from home, their workplace is open and that workplace can operate safely, they can now return to work. In addition, one person from each household can meet with another person from a different household, provided that they do so in an outdoor space. People are also now able to rest and exercise outside as often as they wish. The guidance also permits travel to areas for exercise and relaxation.
In order to "stay alert" while outside the home, the government reiterated that regular hand washing, keeping two metres apart and ensuring that no more than two people gather (except from the same household) will help to control the spread of the virus.
The governments of Wales, Scotland and Northern Ireland have not implemented all of these changes. In Scotland and Wales, people may go outside to exercise more than once but may not meet people from other households, rest outside or travel to other areas for exercise or relaxation. In Wales, the government has allowed garden centres and businesses operating a "click and collect" service (while maintaining social distancing) to re-open. In Scotland, all non-essential workplaces must remain closed.
In each part of the UK, public authorities have the power to detain individuals who have the virus, or are suspected/at risk of having the virus, and restrict their activities. The police can issue fines and disperse gatherings.
2. What responsibilities do we have towards our employees?
As an employer, you have a duty of care to your employees in relation to health and safety and indeed towards other individuals, including workers/contractors and visitors to your premises. UK health and safety legislation requires all employers to assess and review risks and to maintain an emergency procedures policy, should there be an event that creates a "serious and imminent danger to persons at work". Employers must communicate this policy to employees and provide appropriate training. All employers must abide by the regulations on workplace closures (see Question 1) in order to meet their health and safety obligations.
The government has published guidance to assist different kinds of workplace in England to become "COVID-19 Secure" (see Question 8).
Employees also have a responsibility under the legislation to take reasonable care not to endanger themselves or anyone who may be affected by their actions at work.
3. How do we deal with visitors to our premises?
If your premises are still open, you should actively discourage any visits to them unless they are essential. Consider sending a questionnaire in advance to any expected visitors to your premises, covering close contact in the past 14 days with anyone exhibiting symptoms of the virus, or who has a cough, cold or fever (or if they have had such symptoms themselves in the past seven days). You should ask unexpected visitors to complete the same questionnaire, with a view to refusing entry to anyone who answers one of the questions positively. Further details are set out in the COVID-19 Secure guidance referred to in Question 8 below.
For data protection reasons, you should destroy the completed questionnaires once you have made a decision on whether or not to allow visitors access to your premises.
4. Is there a risk of employees bringing claims against the business?
If you do not take sufficient steps to safeguard employees' health (e.g. by not following the latest government guidance and/or failing to fulfil your duties in relation to employees' health and safety), there is a risk of an employee who contracts the virus during the course of their employment bringing a personal injury claim.
An employee may also be justified in refusing to attend work for such a health and safety reason. If their employer dismisses them or subjects them to a detriment, the employee would be able to bring a claim in a tribunal.
Failing to fulfil the particular duties you have towards a pregnant employee might lead to a claim of pregnancy discrimination.
You can minimise the risk of successful claims by monitoring and implementing government guidance and keeping your risk assessments up to date and under review.
Returning to work: guidelines and obligations
5. What is the status of the Coronavirus Job Retention Scheme?
The Coronavirus Job Retention Scheme came into effect on 1 March and was due to end on 31 May. It was later extended until 30 June. On 12 May, Chancellor Rishi Sunak announced a further extension for the scheme in its current form until 31 July. From 1 August until 31 October, the scheme will continue but the government's support will begin to taper off and employers will have to contribute towards employees' salaries, to ensure they continue to receive at least 80% of their normal earnings (capped at £2,500 per month). From 1 August, the Chancellor announced that employers will be able to place employees on "part-time furlough", allowing staff to return to work gradually. The government promised to publish further details of these changes by the end of May.
You can recall employees to work who have been furloughed under the scheme. As long as they have been on furlough leave for at least three weeks, you will still be able to claim a grant under the scheme to cover 80% of their wages. You should also consider this minimum furlough period when recalling workers following the government's announcement that those who cannot work from home, but whose workplace remains open, can go back to work.
If your organisation may not be in a position by August to take on more responsibility for workers' salaries, an assessment of the workforce, and other possible cost-saving measures, may be necessary.
6. Are we likely to see more flexible work arrangements?
You should anticipate more staff requesting home or other flexible working arrangements when workplaces re-open. This may be due to parents still navigating childcare and home schooling arrangements, or to a worker's anxiety about travelling to work at peak times. You should listen to all employees and try to find an arrangement that works for both. All employees with at least 26 weeks' service are entitled to make a formal flexible working request once in a 12-month period. In the present circumstances, it makes sense to allow more flexibility in terms of such requests. You are not obliged to agree to a formal (or informal) flexible working request, but you must have a good business reason, which fits within one of the prescribed reasons for refusing a formal request.
The government recommends considering staggered working hours as part of a plan to return people to work. Bear in mind that a change to working hours is likely to be a change to employees' terms and conditions, which requires the employees' agreement.
7. Are there ongoing restrictions on workplaces?
If employees can carry out their roles from home, they should continue to do so. Many non-essential workplaces must still remain closed. Failure to follow the law relating to business/venue closures can lead to the individual responsible for the business being issued with a prohibition notice, a fixed penalty notice or being prosecuted.
The government has indicated it will lift the restrictions as soon as it is safe to do so. In the meantime, you may wish to start carrying out COVID-19 risk assessments for each type of workplace you operate and plan how you will consult employees and any recognised unions on the assessment and how to manage the identified risks.
8. Has the government provided guidance on workplace health and safety (e.g. social distancing measures, PPE)?
The government has published eight sets of guidelines, covering different types of workplace, to assist you in preparing for staff returning to work. These apply only in England as the administrations in Scotland, Wales and Northern Ireland all still say non-essential businesses should remain closed. If you operate a number of different workplaces, you may need to consider more than one of the guides. For all workplaces, you must carry out a COVID-19 risk assessment and you must be able to implement the "COVID-19 Secure" guidelines.
Best practice states that, where possible, workers should be spaced at least two metres apart and that line markings should be used to reinforce this. Where this is not possible, they should work back-to-back or side-by-side rather than face-to-face. You should continuously remind staff to wash their hands regularly for a minimum of 20 seconds, particularly after coughing, sneezing and blowing their nose, and provide hand sanitisers if water and soap are not available. You should ensure that you arrange for more frequent cleaning of regularly touched communal surfaces and items, using your standard cleaning products.
If your risk assessment indicates that PPE is necessary, you will need to provide this to staff and ensure it fits properly. However, the guides state that it is unlikely you will need to implement the wearing of PPE, face coverings or face masks, unless PPE was mandatory prior to the pandemic.
While the COVID-19 Secure guidelines do not currently apply in Scotland, Wales and Northern Ireland, they do give an indication of the issues that businesses operating in these jurisdictions will need to consider when the respective devolved administrations begin to ease the restrictions.
Adjustment to employment terms
9. Has the government introduced any special measures in relation to employees, including a job retention or wage subsidy scheme?
The government introduced a Job Retention Scheme to avoid redundancies and protect jobs. All employers in the UK will be eligible to participate in the scheme. HMRC will reimburse employers for 80% of wage costs, up to a cap of £2,500 per month. The workers covered by the scheme are those who have been "furloughed". Employers were initially able to claim for the period 1 March to 31 May. The government later extended the scheme to run until 30 June, and has now extended it again to 31 October. The scheme will continue to operate in its current form until the end of July. From August, employers will be able to utilise "part-time furlough" so that workers can return part-time as the business gets up and running again. The government will taper off its support, but employers will still be able to claim some support provided they ensure (by paying) that workers continue to receive at least 80% of their usual wages (subject to the £2,500 cap).
Workers may carry over up to four weeks of unused annual leave into the next two leave years if it is not reasonably practicable for them to take all their leave in the current leave year due to the pandemic. This does not entitle employees to cancel holidays just because they cannot go abroad. Instead, it appears to be aimed at employers who may have difficulties letting employees take holidays during the pandemic or using accrued holidays once business starts up again. Employers will not be able to refuse requests to use this carried forward holiday without "good reason".
Workers eligible for statutory sick pay (SSP) are entitled to pay from day one of their absence/self-quarantine, rather than only from day four under the normal rules, if the absence relates to COVID-19. The government will reimburse the cost of any SSP that small employers (those with fewer than 250 employees) pay to eligible employees for the first 14 days of sickness.
The Coronavirus Act 2020 introduced a new form of statutory unpaid leave: emergency volunteering leave (EVL). Employees would be able to take a maximum of four weeks' EVL in any 16-week volunteering period. Their terms and conditions would otherwise continue as normal. They would also have the right to return to work on the same terms afterwards. There is protection against detriment and dismissal for taking EVL.
To take EVL, an appropriate authority must certify the employee as an emergency volunteer. A compensation scheme would cover volunteer employees' loss of earnings. Certain employees are ineligible for EVL (for example, if they work in the emergency services or their employer employs 10 or fewer employees).
The government has not yet brought the EVL provisions into force.
10. Other support measures
The government has announced a number of measures to support organisations in tackling the unprecedented challenges caused by the pandemic. See our blog post for a summary of the help available. Further information is available via the links below (see Question 22).
Pay for employees who are in self-quarantine, unable to perform their duties or are diagnosed with COVID-19
11. If employees have to self-quarantine for 14 days, do we have to pay them? Are they entitled to SSP?
SSP is now payable to all those who self-isolate in line with government guidance. The government guidance strongly suggests that employers are lenient about the requirement for evidence of sickness after seven days' absence, where a medical professional has instructed an individual to self-quarantine.
The definition of "employee" which applies in the relevant regulations relating to SSP is much wider than in some contexts, so workers will also qualify if their earnings are liable for class 1 National Insurance contributions.
12. How should we treat employees diagnosed with COVID-19?
Symptomatic employees should not attend the workplace (if the workplace is currently open). You should tell them to self-quarantine, along with their family members from the same household, for 14 days. They will qualify for SSP as they are incapable of working due to COVID-19 (or contractual sick pay where applicable).
13. What do we do if someone displays symptoms while at work?
The government and ACAS have given detailed guidance on this. You should send the individual home and advise them to follow the government's self-isolation advice.
14. Should we make special allowances for an employee who cares for an elderly relative or lives with someone whose immune system is compromised e.g. due to cancer treatment?
Individuals who are in the extremely vulnerable category, who the government has advised to shield, are now eligible for SSP. However, employers who are eligible for the Job Retention Scheme may be able to choose to furlough employees (see Question 1) who are shielding because they are in one of the groups who are particularly vulnerable, but confirmation on this point is awaited. Eligible employers may choose to furlough employees who live with someone who is shielding. The new COVID-19 Secure guidelines for England recommend that employers pay particular attention to the risks for workers who live with individuals who are shielding.
15. What if an employee has to care for a child because schools have closed?
As schools are closed until further notice, many employees with children are finding it difficult or impossible to find adequate childcare. Depending on the age of the children, working from home may not be a practical solution to this problem. Flexibility is key – many employers have already considered whether the employee could work outside normal working hours if he/she needs to look after their child/ren during working hours.
If an employee simply is not able to work due to caring responsibilities that arose because of the coronavirus pandemic, you may furlough them under the government's job retention scheme (see Question 9).
16. Can an employee refuse to come to work/travel for work because he/she is worried about COVID-19?
If an employee does not want to come into work because of genuine fears relating to COVID-19, you should take these seriously. ACAS guidance states that, where possible, you should allow the employee to work remotely or to take time off work as holiday or unpaid leave. You should also remind employees of any support systems already in place, such as an employee assistance programme.
If an employee unreasonably refuses to attend work, and cannot work from home, you may consider disciplinary action. Ensure you deal with similar cases consistently, as with any disciplinary matter, but take into account the particular individual's circumstances and reasons for refusing to attend. Note that a reasonable fear about a health and safety risk may entitle an employee to refuse to come to work.
17. Do we have to shut our offices/workplace if someone displays symptoms?
Closing your workplace, or sending staff home, is not required unless government policy changes. Should an individual develop symptoms, you must send them home to self-quarantine. However, the rest of the workforce does not need to do this unless they also develop symptoms. You should, however, consider whether other employees may have become infected by working with the symptomatic individual and what steps are appropriate to minimise the risk of further spreading. Depending on the location of your workplace, you should contact Public Health England, Public Health Scotland or Public Health Wales for advice.
Employee data privacy
18. Should we tell the rest of the workforce if an employee is diagnosed with COVID-19 and how do we treat personal health information?
You would not be obliged to inform the rest of your staff that a colleague has been diagnosed with the virus, but it would be good practice to do so for reasons of transparency. The ICO states that you should tell your workforce of any positive cases. However, personal health information is special category data under GDPR, so you must take care to preserve the individual's privacy as much as possible and not to name them directly. In reality, employees will likely be able to identify the individual, so you should remind employees that they must not speak to the media and, in particular, should not name anyone who may have the virus. Please see our separate bulletin "COVID-19: Data Protection Checklist" for a fuller analysis.
19. Are we allowed to take employees' temperatures and use personal data to admit employees to the workplace?
The UK government and the World Health Organisation do not recommend taking employees' temperatures and instead advise that you should focus your energy on implementing the recommended actions.
However, if you are considering taking this step, it is likely that you will require consent from the individual before taking their temperature. This is deemed to be a medical examination and the results fall into the special category of personal data. You can only process this information on certain grounds under data protection legislation.
You may not need consent if your workplace would have to close if you do not undertake temperature checks and some staff may view the checks positively, as a reassuring measure. If you choose to take workers' temperatures, you should carry out the checks on all staff members (and visitors) without exception.
You should only use and process personal data in line with the provisions of data protection legislation. You must ensure that you use the data in line with your policies and privacy notices. In many cases, it will not be necessary to retain temperature readings once satisfied that the individual does not have a high temperature.
This is a complex issue.
20. Has the government introduced any limitations on people's mobility?
The UK government announced a partial lockdown on 23 March 2020.
The UK and Scottish governments have passed regulations requiring certain businesses and premises to close. This includes cafés, bars, restaurants, clothing shops, hotels, libraries, cinemas, gyms and places of worship.
The regulations contain a number of exceptions, including takeaways and delivery services, online retail services, postal services, supermarkets, pharmacies, banks and bicycle shops. These can still remain open.
Those businesses/premises that are not on the "must close" list may also remain open or re-open. All employers must take steps to ensure they meet their health and safety obligations, which includes social distancing of two metres between any individuals on the premises where practicable. On 11 May, the government confirmed that workers in England can return to work if they are unable to work from home and their workplace remains open. It continues to advise that they avoid using public transport.
In England, the restriction that people can only go outside for one hour to exercise has now been lifted. People can now exercise, sit outdoors and rest for an unlimited period. One person from one household may also meet up with another person from a different household, provided that they maintain social distancing measures. Individuals can now travel to public places, no matter what the distance, but they must check with the local area as not all locations in the UK have relaxed the previous restriction and some public areas (e.g. national parks) have not re-opened.
In Scotland and Wales, people may now go outside more than once a day to exercise. They should still do this close to home and may not mix with people from other households or go outside to rest or relax.
21. How should we deal with international travel for work?
The government has made it clear that everyone should cancel all non-essential travel. The government intends to bring in a 14-day quarantine policy for people who travel into the UK, unless they are on a small list of exemptions (still to be confirmed) or from the Common Travel Area.
You should consider the impact that this may have for any staff coming back into the UK.
22. Where can I get further information?
This is a constantly evolving situation with government and public bodies regularly changing their advice and implementing new rules. We recommend keeping an eye on the following sources of information:
World Health Organisation
Foreign and Commonwealth Office travel advice