Coronavirus: employee rights

There have been unprecedented impacts on employees’ rights during this global pandemic, including the right to health and safety at work and the right to be paid. 

Where employers are making cuts to employees’ pay for refusing to attend an unsafe workplace or are unfairly dismissing employees, read our more detailed article here.

Despite many employers accidentally infringing, or even deliberately ignoring these rights in a bid to stay afloat in this chaos, employee rights have not changed. 

Can employers force employees to attend work if they are vulnerable, or a danger to a vulnerable person?

Employers already know how old their employees are. Assuming that they also know if their employees are pregnant, or suffer from ill-health or a disability, then hopefully they will be receptive to proposals for their employees to work remotely where possible or to be put on the government Coronavirus Job Retention Scheme on temporary ‘furlough leave’ (see below). The deadline for new entrants to the furlough scheme has now passed (except for parents on statutory maternity/paternity leave).

Even if employees are just living with someone in the above categories, an attempt by employers to force these employees to attend work could be breaking the law.

The law for these circumstances is not yet clear in relation to Covid-19. However, we advise that an attempt by employers to force employees to attend work could be unlawful, as doing so could be subjecting employees to one or more of the following:

discrimination relating to age, pregnancy or disability, or

constructive dismissal or

 -breach of health & safety law

Furlough leave

The Coronavirus Job Retention Scheme, also known as ‘Furlough Leave’ is available if employers’ business has been affected by Covid-19. This scheme allows employers to let employees stay at home as the government will pay them 80% of their employees’ salary, up to a maximum of £2,500 per month until the end of July this year, at least. This can be backdated from 1 March this year. 

The way in which this scheme will apply to employees must be agreed between both the employee and employer, specifically whether employees are happy to accept only 80% of their current salary up to a maximum of £2,500 per month, or whether they wish to receive the full 100% (with no upper limit). Employers cannot simply put employees on the scheme without agreement. If employees do not agree however, they can be made redundant. Further information and tactics for employees about this is in our separate practical guide on furlough leave.

The scheme will continue to operate from August until the end of October this year, but employers will be expected to contribute to the cost and will be able to bring furloughed employees back to work part-time. Further changes to the scheme include:

June 2020: The government furlough scheme will close to new entrants at the end of the month and employers must register new entrants prior to 10 June. Employers of parents on statutory maternity/paternity leave have been granted a longer period to register for furlough - details of which are still awaited. 

From July 2020: Employees that have been furloughed can work part time.

From August 2020: Employers will be required to pay the employers’ national insurance and pension contributions for furloughed employees. 

From September 2020: Government contribution to furlough pay reduces to 70%, capped at £2,190 a month. Employers pay 10% (and top-up to 100% if previously agreed).

From October 2020: Government contribution to furlough pay reduces to 60%, capped at £1,875 a month. Employers pay 20% (and top up to 100% if previously agreed).

Can employees be dismissed for not coming to work because they are self-isolating?

No! Employers may be allowed to start disciplinary action against employees, but legally, they cannot dismiss them. Any attempt to do so would amount to automatically unfair dismissal under the Employment Rights Act 1996, s 100.

Despite not relating directly to the coronavirus, a good example of automatically unfair dismissal can be found in the case of Harvest Press Ltd & McCaffrey 1999 ILRL 778.

Read our more detailed guide on coronavirus unfair dismissal here.

Can employers reduce employee salary?

As long as employers are justified in doing so, they can reduce employees’ salary. We are frequently encountering employers telling their employees to take a pay cut during the coronavirus which easy for employers to justify, provided that the same is being asked of other employees.

Employers can simply give employees another contract of employment with a pay cut along with their notice. If employees don’t agree to work under the new contract, employers can terminate the employment of employees once their notice period is over. 

The affects of coronavirus on the self employed

On 29 May 2020 the Chancellor announced a second grant for self employed whose businesses have been affected by the coronavirus. The main points include:

The initial grant will be a taxable payment of 80% of the business’ average monthly trading profits, covering three months of profit up to £7,500. 

The second grant is worth 70% of the business’ average monthly trading profits up to £6,570. This can be applied for in August 2020.

Recipients can work as well as receiving these grants. Payments are:

  • Based on your average income in the previous three years of trading.
  • Not available to people on over £50,000 p.a.

Read more in our article on the government scheme for the self employed and read the government website here

Are employees entitled to pay if they are self-isolating due to coronavirus?

If employees have symptoms or have been advised by their doctor or other medical authority to self-isolate, they are legally entitled to Statutory Sick Pay (SSP). Isolation notes can be obtained online on the NHS 111 website.

The current legislation does not entitle employees to SSP if they are not sick themselves and want to self-isolate.

The current legislation does not entitle a vulnerable person, for example, old or with underlying health conditions to SSP. Still, we would advise that such employees get an isolation note online on the NHS 111 website, which would then entitle them to SSP.

Employers must do a risk assessment if an employee is pregnant. Where it is deemed unsafe to attend work, employers must suspend these employees on full pay. Employees are entitled to start their maternity leave at this point if this is within six weeks of their due date, as per the legislation here.

If, however, employees can work remotely, and employers agree to this, then in these circumstances, employees will be entitled to their usual pay.

Before taking any action, employees should talk to their employer about their concerns and see if they can agree on the best way forward.

This legislation is contained in The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020.

Are employees entitled to pay if their employer tells them to stay off work?

Employers can ask employees to stay away from work if they have good reason to ask employees not to attend (for example, if the employee has recently returned from a country badly affected by coronavirus, or had contact with someone with the virus). In these circumstances, employees will be entitled to your contractual pay.

If employees’ hours of work have been reduced or employers close the place of work, then employees are entitled to their normal pay, without any reduction. Alternatively, employers can put employees on the government’s furlough leave scheme as the government will pay 80% of their salary whilst they’re at home.

(See Social Security, Contributions and Benefits Act 1992, s 151, and Employment Rights Act 1996, ss 147-154 for relevant legislation)

What are employee rights if employees take time off work to care for dependents?

On 4 April 2020, the government announced an extension of the Coronavirus Job Retention Scheme mentioned above, to people with childcare responsibilities due to Covid-19 restrictions. This must be agreed with their employer as furlough is not an automatic right, however, this is great news for parents.

Automatic rights are set out in pre-existing legislation, the Employment Rights Act 1996, s 57A – 57B. According to this legislation, employees have a right to ‘reasonable’ time off work to care for dependents in an ‘emergency’. This includes where employees’ dependents’ usual school/carers or another provider cannot operate due to Covid-19.

Unless employees have an insurance policy or their employment contract provides for payment in these circumstances, time off will be unpaid. What is a ‘reasonable’ amount of time off depends on each individual situation. Employers are required to consider their employees’ case without reference to possible disruptions or inconvenience to their business. 

Undoubtedly the coronavirus crisis does fall under an emergency, and what is considered as ‘reasonable’ is a period of time ongoing, at least, until schools and nurseries are open. But employees should initially ask for full pay or at least furlough leave. 

If employees get coronavirus, will they be entitled to sick leave and pay entitlements?

If an employee has been diagnosed with coronavirus or medical authorities suspect that they may have it, they will be entitled to the usual entitlements to pay and sick leave, just like any other sickness and sickness absence.

(See Social Security Contributions and Benefits Act 1992, s151)

If employees are made redundant due to Covid-19 do they still have to be consulted by their employer?

Normally, when employers are making over 20 employees redundant, they have to consult for a period of 90 days before making redundancies. However, with coronavirus, this period could be compressed as employers are likely to cite ‘special circumstances’. In our opinion, they would still need to consult employees but for a reduced number of days. Failure to do so would be procedurally unfair dismissal.

The employer has a duty to consult employees if less than 20 people are being made redundant. This would generally include more than one meeting and an opportunity for employees to make reasonable input into the decision, despite not being defined by statute.

If employees have been laid off due to the coronavirus but they want to leave their job can they choose redundancy?

If employees are laid off for four weeks in a row, or for six weeks in any 13-week period, they can their employer to give them statutory redundancy payment as well as their notice pay. If employers do not reply, employees can resign and will have a claim for statutory redundancy pay. In doing so, employees must give notice, as per their notice period (which is the longer period of either their contract or statutory notice period). 

Next steps

Monaco Solicitors have created a free Coronavirus Rights app for employees affected by any of the situations outlined above. This app provides a letter of advice as well as two example letters to your employer for free.

Written by Monaco Solicitors

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