Government provisions impacting businesses/employer protection responsibilities
1. What measures is the government taking to control the spread of COVID-19?
Whilst the UK government's headline advice still urges people to stay at home as much as possible, it has gradually eased the lockdown restrictions in England over the last couple of months. It is now up to employers to decide if employees should return to work.
The devolved administrations in Wales, Scotland and Northern Ireland have also taken steps to ease their own restrictions but at slightly different speeds appropriate to the level of risk and the re-infection rate in their areas.
Each jurisdiction still imposes a limit on the number of people from outwith your household you can meet both outdoors and indoors. In all cases, you must maintain physical distancing, with the exception of children under 12 in Scotland, and children under 11 in Wales, who no longer need to distance from other children or adults.
In all parts of the UK, it is mandatory to wear a face mask or covering on public transport. Face coverings are also now mandatory in shops in Scotland, England and Northern Ireland. There are some exemptions from these requirements, such as for children and those with certain disabilities.
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.
The UK government and devolved administrations have implemented track and trace strategies in order to minimise the spread of the virus as they ease the lockdown measures. The track and trace systems will help trace close recent contacts of anyone who tests positive and, if necessary, notify them that they must self-isolate. If an individual tests positive, they must promptly share information about their recent contacts through the service to enable those individuals who may need to self-isolate to be alerted.
Local lockdowns are also being imposed when a local spike in cases is identified. This can happen at quite short notice so it is important to be aware of announcements.
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 this also applies 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.
The government has published guidance to assist different kinds of workplace in England to become "COVID-19 Secure" (see Question 9). The devolved administrations have published similar guidance for workplaces in their jurisdictions.
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 open, you should actively discourage any visits to them unless those visits are essential. Consider sending a questionnaire in advance to any expected visitors to your premises asking about close contact in the past 14 days with anyone exhibiting symptoms of the virus, or who has a cough, cold or fever, or if the visitor has 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. You should also keep a record of all visitors, where practical, to enable the tracing of contacts should anyone be tested positive. Further details are set out in the COVID-19 Secure guidance referred to in Question 9 below.
For data protection reasons, you should destroy the completed questionnaires once you have made a decision on whether or not to allow the visitor access to your premises. Please get in touch with your usual Dentons contact or Virginia Allen for a template questionnaire.
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 if they have a significant health and safety concern. If their employer dismisses 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 will remain open until 31 October. The scheme closed to new entrants on 30 June. Employers may now place employees on "part-time furlough", allowing staff to return to work gradually (see Question 6).
Furloughed employees will continue to receive at least 80% of their normal earnings (capped at £2,500 per month). Until 31 July, the scheme funded this, along with employer National Insurance contributions (NICs) and the minimum required employer pension contributions. As of 1 August, employers must pay their NICs and pension contributions themselves. In September, they will also have to pay 10% of employees' normal earnings (with the scheme paying 70%) and this will increase to 20% in October (with the scheme paying 60%).
||Salary/wages: 80% capped at £2,500 per month
||Auto-enrolment minimum employer pension contributions
||CJRS - 70%
Employer - 10%
||CJRS - 60%
Employer - 20%
If your organisation may not be in a position to take on this increasing responsibility for the costs associated with workers' salaries, you may need to consider restructuring the workforce now along with other possible cost-saving measures.
From 1 July, you cannot claim for more employees in a single claim than the maximum number you claimed for in any claim up to 30 June. This means if you have made three claims, say for 50, 40 and 70 employees, the maximum number you can claim for in any single claim starting on or after 1 July is 70 employees. This appears to be the case even if the 50 employees you furloughed in the first claim were different employees to the 70 furloughed in the third claim. You could not furlough 120 (flexibly or full-time) at the same time, even if they have all been furloughed before. This cap does not apply to any employees returning from family leave (where the leave started before 10 June and ended after 10 June) or military reservists (if their period of mobilisation started before 10 June and ended after 10 June).
You cannot make a claim that crosses calendar months so you need to ensure each month is claimed for separately.
6. What are the parameters of flexible furlough?
You can bring employees into work for any amount of time and on any work pattern while still claiming under the scheme for unworked hours.
You must pay employees who are flexibly furloughed for the hours they work. You will be able to claim the furlough grant for any hours those employees do not work as long as they are furloughed for those hours. These unworked hours will be based on the hours they would normally have worked in that period.
Unsurprisingly, you need to agree flexible furlough with the employee (or on a collective basis with a recognised trade union). You must:
- keep a written agreement that confirms the new furlough arrangement;
- keep a written record of the agreement for five years; and
- keep records of how many hours flexibly furloughed employees work and the number of hours they are furloughed.
You can enter into a flexible furlough agreement with an employee more than once. This means you can change the proportion of hours they are working/furloughed or the work pattern.
Flexible furlough agreements can last any period of time. The three-week minimum period does not apply to furlough periods starting on or after 1 July.
If you are not ready to start bringing furloughed employees back to work, you can continue to furlough employees for all of their normal working hours.
The existing restrictions continue to apply to what an employee can/cannot do during the hours they are flexibly furloughed. This means during the hours they are furloughed, they:
- cannot do any work that makes money for their employer or provides a service;
- can take part in training;
- can volunteer for another employer or organisation; and
- can work for another employer (if contractually allowed).
Whilst flexible furlough can last any length of time, the period you claim for must be a minimum of seven consecutive calendar days.
HMRC has published a worked example of how to calculate the amount you can claim for an employee who is flexibly furloughed. Before making a claim, as well as deciding on the length of the claim period and what to include when calculating wages, you will also need to work out your employees' usual and furloughed hours.
If you plan to make use of flexible furlough between now and the end of the scheme, we recommend you start planning as early as possible and ask employees to agree to the new part-time work pattern you propose. Bear in mind that some employees will still have childcare issues and others may be clinically more vulnerable and may previously have been shielding. The government expects employers to be understanding and flexible with employees in these situations.
7. 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 arrangements, to a worker's anxiety about travelling to work at peak times or a simple desire for more flexibility. 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.
8. Are there ongoing restrictions on workplaces?
Across the UK, 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.
Where no specific restriction applies, the position varies across the UK. In England, employers are broadly encouraged to consider whether employees can return to their workplace safely. In Scotland employees should continue to work from home if they can.
The government has indicated it will lift the restrictions as soon as it is safe to do so. In the meantime, if you are not yet able to re-open, you should 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.
9. Has the government provided guidance on workplace health and safety (e.g. social distancing measures, PPE)?
The UK government has published 14 sets of guidelines for employers in England, covering different types of workplace, to assist you in preparing for staff returning to work. The devolved administrations have published guidance for employers operating in their areas. The Welsh government and the Northern Irish Executive have published guidance that applies to all workplaces, while the Scottish Government has published guidance on a sectoral basis. For all workplaces, you must carry out a COVID-19 risk assessment and implement measures in line with the relevant 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. In some sectors, primarily public transport, retail and hospitality, the regulations now permit one-metre physical distancing, provided you implement appropriate additional mitigating measures (this is referred to as "one metre plus"). These measures include no standing at bar areas, reviewing lay-outs, face coverings for staff and improved ventilation. 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, 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.
Adjustment to employment terms
10. 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 were eligible to participate in the scheme. HMRC reimbursed 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". The scheme has evolved, with employers now able to furlough some employees part-time in order to support the re-opening of workplaces from 1 July. From 1 August, employers must bear some of the costs associated with furloughed employees (see Question 5).
On 8 July, the Chancellor announced that businesses will receive a job retention bonus of £1,000 for every furloughed worker it brings back to work and who remains in their employment until at least 31 January 2021. On the same day, the government also launched a "kick start" job creation scheme for young people aged 16 to 24 who receive Universal Credit. Under this scheme, the government will cover the cost of 25 hours' work per week (at the applicable National Minimum Wage rate) for a period of six months while they complete a job placement.
The government has also introduced regulations to ensure that, if an employer makes furloughed employees redundant, they receive notice and a statutory redundancy payment based on their normal pay, not the furlough rate of 80%.
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.
11. Other support measures
The government has announced a number of measures to support organisations in tackling the unprecedented challenges caused by the pandemic. Further information is available via the links below (see Question 23).
Pay for employees who are in self-quarantine, unable to perform their duties or are diagnosed with COVID-19
12. 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. This includes those who are notified under the track and trace systems that they must self-isolate due to contact with someone who has tested positive. The government guidance strongly recommends 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.
However SSP is not payable to those who have to self-isolate after returning from abroad unless they are actually ill.
13. 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 (or contractual sick pay where applicable) as they are treated as incapable of working due to COVID-19.
14. What do we do if someone displays symptoms while at work?
The government and ACAS have published detailed guidance on this. You should send the individual home and advise them to follow the government's self-isolation advice.
You should also consider whether they have been in close contact with other colleagues (especially if within two metres for any length of time). If they have, you will need to consider whether you should send these colleagues home too.
15. 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 advised to shield, are eligible for SSP if they cannot work from home. If you furloughed employees in this group on or before 10 June, you may continue to do so for the duration of the scheme. The government expects employers to be understanding and flexible with employees in this situation. The administrations in England, Scotland and Northern Ireland paused shielding from 1 August so those employees who were shielding are able to return to work, if they cannot work from home. The Welsh government paused shielding on 16 August. Once an individual is notified they no longer have to shield, they are no longer entitled to SSP.
Eligible employers may also have chosen 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 clinically extremely vulnerable.
16. What if an employee has to care for a child because schools have closed?
Each devolved administration is planning to re-open schools fully. For example, the Scottish schools have already returned as their autumn term traditionally starts in August. In the meantime, 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. The government expects employers to be understanding and flexible with employees in this situation.
If you furloughed employees who are not able to work due to caring responsibilities that arose because of the coronavirus pandemic (see Question 10), you may continue to do so for the duration of the scheme.
17. 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 concerns 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.
18. Do we have to shut our offices/workplace if someone displays symptoms?
No. However, if more than one employee is diagnosed with COVID-19, you must contact your local health protection team to report the suspected outbreak.
Employee data privacy
19. 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 are not 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.
20. Are we allowed to take employees' temperatures and use personal data to admit employees to the workplace?
A number of employers are reported to have implemented temperature checks in the workplace. If a temperature reading is taken, but is not recorded against an individual employee or visitor, for example for compiling a report that includes the data as anonymous, then this may not constitute personal data, in which case the GDPR will not apply. Note however that the GDPR sets high standards for data to be anonymous. In many cases, it will not be necessary to retain temperature readings once satisfied that the individual does not have a high temperature, and the information can therefore be destroyed immediately, or not recorded at all.
If a temperature reading is taken, and then recorded against an individual employee's file, or used to allow or deny access to a building, then this will constitute personal data and the GDPR will apply. As this is health data, you may only process this information on certain specific grounds under both GDPR and the Data Protection Act 2018. There are only two relevant grounds on which you could rely in this situation. The first is that processing is necessary for the performance of rights and obligations in connection with employment. Given neither the government nor the World Health Organisation recommends taking employees' temperatures, it will be difficult (but not impossible, depending on the circumstances) to argue this processing is necessary. That leaves consent and there are well-documented difficulties with consent in the context of the employer/employee relationship, due to the imbalance of power. Employers adopting temperature checks should be aware that they may find it difficult to show employees freely consented, if they will not be admitted to the workplace if they refuse. For these reasons, temperature checks will generally only be appropriate in higher risk settings such as health care.
In deciding whether to initiate a programme of temperature checking (or, for that matter, other COVID-19 related data processing activities, especially those that entail processing of sensitive personal data such as health, race or ethnic origin), employers need to comply with the general compliance requirements of the GDPR. This means carrying out a documented Data Protection Impact Assessment to ensure that the collection and processing of temperature data complies with the core requirements of the GDPR. These include:
- being transparent about how you will provide employees with information about the data processing;
- having a clearly defined business purpose for the processing and ensuring that the data will not be used for incompatible business purposes;
- ensuring the data is adequate, relevant and the minimum necessary to achieve the purpose (which could be problematic if the benefit of taking temperatures is unclear);
- accountability (including documented policies and processes); and
- enabling individuals to exercise their rights.
In the context of testing employees for COVID-19, the ICO recommends considering the specific circumstances of your workplace: what type of work do you do, what type of premises do you have and is working from home possible? You should also be clear about what you are trying to achieve and consider if personal information is necessary for that purpose.
This is a complex issue. If you are contemplating taking temperatures of staff and using the data to admit staff to the workplace, please get in touch with your usual Dentons contact or Virginia Allen.
21. Has the government introduced any limitations on people's mobility?
As noted in Question 1, the UK government and devolved administrations have been taking steps to ease the lockdown that began in March. People in all areas of the UK are no longer required to stay in their local area.
From 1 June, most people arriving in the UK by plane, ferry or train had to self-isolate for 14 days after their arrival. This included UK nationals. From 10 July, travellers no longer need to self-isolate upon arrival in the UK if the country they travelled from is on the list of exempt countries. Each jurisdiction will keep its list of exempt countries under review and the lists do change frequently and at short notice.
Those arriving in the UK from a non-exempt country, or who have been in a non-exempt country in the last 14 days, must complete a form giving the address at which they will stay for the next 14 days (or the remainder of the 14 days since they left the non-exempt country). Some groups are exempt, including:
- road haulage and freight workers;
- those arriving to attend pre-arranged medical treatment, for the purposes of obtaining treatment only;
- passengers in transit to another country, if they do not pass through UK border control;
- anyone arriving from the Republic of Ireland, the Channel Islands or Isle of Man;
- seasonal agricultural workers if they self-isolate at the property where they are working; and
- UK residents who ordinarily travel overseas at least once a week for work (unless they are staying in Scotland).
22. How should we deal with international travel for work?
The Foreign & Commonwealth Office still advises against all non-essential international travel, unless the destination is on a list of exempt countries and territories. You would need to have a very strong reason for business travel to a country that is not on the exempt list. In particular, you should also consider whether your travel insurance policy would cover the trip. You should consider the impact of the 14-day quarantine period (see Question 21), where applicable, for any staff coming back into the UK as well as any restrictions in the countries to which the employees might have to go.
23. 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