May 20, 2020

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Covid-19 Update

Holiday rights during COVID-19 pandemic

The Department for Business, Energy and Industrial Strategy guidance ‘Holiday entitlement and pay during coronavirus (COVID-19)’ was published on 13 May 2020. It addresses the position of workers who continue to work and of those who have been placed on furlough.

The guidance makes clear that furloughed workers continue to accrue entitlement to annual leave under the Working Time Regulations 1998 SI 1998/1833, and that furloughed workers can take holiday without bringing the period of furlough to an end.

As to holiday pay, the guidance states that holiday pay during furlough must be ‘the correct holiday pay in accordance with current legislation’, which is based on normal remuneration. It notes that, where this calculated rate is above the furlough rate of pay, the employer will have to pay the difference but will still be able to claim up to 80% (or £2,500 per month) under the CJRS.

Under the Regulations, where it has not been reasonably practicable for a worker to take some or all of the basic four weeks’ annual leave due to the effects of coronavirus, the untaken amount may be carried forward into the following two leave years.

Guidance on working safely during COVID-19 pandemic.

On 11 May 2020 the Government published new online guidance on working safely during the pandemic. The guidance comprises five ‘key points’ of general guidance and eight workplace-specific guidance documents.

The guidance states that individuals should work from home, if they can, and employers should take ‘all reasonable steps’ to enable them to do so. From 13 May 2020, individuals who cannot work from home should go to work if their workplace is open. Employers must carry out COVID-19 risk assessments in consultation with their workers or
trade unions in order to establish what guidelines to put in place. If possible, employers should publish the results of their risk assessment on their website; the Government ‘expects’ all businesses with over 50 employees to do so.

Social distancing of two metres should be maintained in workplaces wherever possible. Employers should redesign workspaces to maintain this level of social distancing by staggering start times, creating ‘one-way walk-throughs’, opening more entrances and exits or changing seating layouts in break rooms. Where social distancing of two metres cannot be maintained in a workplace, employers should manage the transmission risk of COVID-19. The guidance suggests that employers could put barriers in shared spaces, create workplace shift patterns or fixed teams designed to minimise the number of individuals coming into contact with one another or ensure that colleagues are facing away from each other. Cleaning processes should be reinforced, by cleaning workplaces more frequently and paying close attention to high-contact objects (such as door handles and keyboards). Employers should provide handwashing facilities or hand sanitisers at workplace entry and exit points.

The workplace-specific guidance documents cover construction and other outdoor work; factories, plants and warehouses; laboratories and research facilities; offices and contact centres; other people’s homes; restaurants offering takeaway or delivery; shops and branches; and vehicles.

Workplace testing for COVID-19

Anticipating that employers making plans for a return to work are likely
to be considering testing staff for symptoms of COVID-19 or the virus itself, the Information Commissioner’s Office (ICO) has published ‘Workplace testing – guidance for employers’ on the ICO website.

This stresses that the results of such tests amount to ‘special category data’ that relate to an identified or identifiable individual, so employers must comply with the EU General Data Protection Regulation (No.2016/679) (GDPR) and the Data Protection Act 2018 (DPA 2018) by handling the data lawfully, fairly and transparently, and ensuring that it is carefully protected.

Employers can keep specific health data about employees (such as who has symptoms or has tested positive), provided this is actually necessary
and relevant for their stated purpose. Data protection should not be seen
as a barrier to sharing data with authorities for public health purposes, or the police where necessary and proportionate, but when sharing information with other staff, employers should avoid naming individuals if possible and not provide more information than is necessary.

The guidance also covers temperature checks or thermal cameras for testing and monitoring staff. The ICO again stresses the need for transparency and for any monitoring to be proportionate and necessary. It is important for employers to consider whether there are other, less intrusive, means that could be used.

The coronavirus Statutory Sick Pay Rebate Scheme is now live on GOV‌.UK.

To make a claim now, please visit GOV‌.UK and search ‘Check if you can claim back Statutory Sick Pay paid to employees due to coronavirus (COVID-19)’.

Which employers can use the scheme?

You’re eligible to use the scheme if you meet all of the following criteria:

  • you’re claiming for an employee who’s eligible for sick pay due to coronavirus
  • you had a PAYE payroll scheme in operation before 28 February 2020
  • you had fewer than 250 employees across all PAYE schemes on 28 February 2020
  • you’re eligible to receive state aid under the EU Commission Temporary Framework – more information about this can be found on GOV‌.UK (please use the search term above).

Which employees are entitled to SSP?

The repayment will cover up to two weeks of the applicable rate of SSP, and is payable if a current or former employee was unable to work on or after 13 March 2020 and entitled to SSP, because they either:

  • had or have coronavirus
  • could not or cannot work because they were/are self-isolating at home
  • were/are shielding in line with public health guidance.

Which records should employers keep?

You must keep records of SSP that you’ve paid and want to claim back from HMRC.

You must keep the following records for 3 years after the date you receive the payment for your claim:

  • the dates the employee was off sick
  • which of those dates were qualifying days
  • the reason they said they were off work – if they had symptoms, someone they lived with had symptoms or they were shielding
  • the employee’s National Insurance number.

You can choose how you keep records of your employees’ sickness absence. HMRC may need to see these records if there’s a dispute over payment of SSP.

CJRS extended

The Chancellor of the Exchequer has extended the duration of the Coronavirus Job Retention Scheme (CJRS), which will now run until the end of October 2020. The CJRS will continue in its current form – under which employers can claim 80% of a furloughed worker’s wage costs up to £2,500 a month – until the end of July. From the start of August, furloughed workers will be able to return to work part time, with employers being asked to pay an as yet undetermined percentage towards the salaries of their furloughed staff. As of 12 May, 7.5 million workers had been furloughed under the CJRS, and the total claimed had exceeded £10 billion.

Law Commission recommends employment tribunal reform!

The Law Commission report ‘Employment Law Hearing Structures’, which was published on 29 April 2020, makes recommendations for changes to the powers and jurisdiction of employment tribunals, the EAT and civil courts in employment and discrimination matters.

Among other things, it recommends enlarging employment tribunals’ jurisdiction in contractual matters to include breach of contract claims brought during employment and raising the limit on breach of contract claims from £25,000 to £100,000. The report proposes to extend the time limit for all employment tribunal claims to six months, and to give tribunals discretion to extend time where it is ‘just and equitable’ to do so in all types of claim. This would be in preference to the more restrictive ‘not reasonably practicable’ test which applies to extensions of time in jurisdictions such as unfair dismissal.

Noting a lacuna in the enforcement of rights under the Working Time Regulations 1998 SI 1998/1833, the Law Commission also recommends that tribunals be given a formal jurisdiction to hear complaints by workers that they are working hours in excess of the maximum working time limits and to give declaratory relief in respect of such claims.

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