United Kingdom: A Guide to Prevent Collapse During Coronavirus

Emily Kuhnert March 19, 2020

We have gathered information on what measures you can take as an employer in the U.K to help preserve your employees while keeping your business intact. As more information comes in, we will update this post.

If you have any questions on the impact of Coronavirus on labor laws, visit our Linkedin AMA post and leave us your questions in the comment section and we will reply.

Updated: March 25, 2020

Sick Pay- Employers are able to received reimbursement for sick pay leave if the cause for the leave is COVID-19 related.  To be eligible, a company is fewer than 250 employees as of February 28, 2020.

  • The company is entitled to 2 weeks’ sick pay reimbursement for every employee who takes sick leave due to the coronavirus
  • The employer must keep record of the absences and payments made for sick leave, and the employee will need to provide a medical certificate.

As there are more developments, more information is expected to be published regarding sick leave pay.

Updated: March 22, 2020

The UK government has announced that it will be paying up to 80% of salary for a person who is unable to work.  This amount is capped at 3 months and up to 2,500 GBP per month.

In addition the government is granting business loans of up to £5m, interest free loan for 6 months, 80% underwritten by HM Treasury. Finally its deferring VAT payments for 3 months

Updated: March 19, 2020

Unpaid Leave

Unpaid leave can be used in scenarios that Employers are temporarily unable to give employees paid work.  However , an agreement must be in place regarding the ability for the employer to place an employee on unpaid leave in the employment contract.

Reduced Working Hours

Employers can reduce the working hours of an employee to 80% as a method to avoid having to dismiss employees based on redundancy. However, there must be a mutual agreement in place for this as it is considered a change to the employment contract.

To follow this procedure, employers will need to consult or negotiate with the employee or their trade union representatives.  An explanation of the reasons for changes must be presented and an opportunity for an alternative solution must be considered as well. If an employee agrees to the changes, an update to the terms of their employment contract must be made in a written statement.

If the change is agreed through a collective agreement with trade unions or staff associations, Employers must write to their staff to let them know about the changes.

If employees do not give consent to reduced working hours, the employer has the right to dismiss the employee based on redundancy.

Redundancy Initiated by the Employer

Employers must ensure that employees being made redundant are selected fairly without discrimination. To ensure a dismissal through redundancy is fair, employers must conduct a consultation process with the employee. Collective consultation rules must be followed where more than 20 employees are being made redundant within a 90-day period at a single establishment. The aim of this process is to come to an agreement between the employee and employer, however, this is not a mandatory requirement. Once the redundancy process has ended, employees must be given at least the statutory notice period and an agreed end date. Payment in lieu of notice can also be utilized.

Employees with at least 2 years of continuous service must be given statutory redundancy payment upon exit. Pay amount is based on an employee’s age and length of employment and are counted back from the date of dismissal:

  • Employees receive 1.5 weeks’ pay for each full year of employment after their 41st birthday
  • A week’s pay for each full year of employment after their 22nd birthday
  • Half a week’s pay for each full year of employment up to their 22nd birthday
  • Length of service is capped at 20 years and weekly pay is capped at £525. The maximum amount of statutory redundancy pay is £15,750.

Employers can give additional redundancy pay if they would like to or to workers with a continuous service of less than 2 years.

Redundancy Initiated by the Employee

Employees can claim a redundancy payment in scenarios that they were moved to short-time working for a period of 4 or more weeks in a row or 6 or more weeks in a 13 week period, where no more than 3 are in a row. Employers must give written notice to the employer in advance of making a claim.

Employers do not have to pay if the employee will return to normal working hours within 4 weeks.

Employer and Employee Rights & Obligations Q&A

Source: Baker McKenzie

1. Are employees obliged to disclose themselves as a “risk-factor” to the employer? Yes. 

  • Following UK government guidance, employees may be considered a “risk factor” if they have developed COVID-19 symptoms or live with someone who has. Current government guidance is that these employees should self-isolate.
  • Employees should tell their employer if they are unable to work, whether because of sickness or advice to self-isolate, or because they are in quarantine, according to the employer’s usual absence procedures.
  • Employees may also be a risk factor because they have been in contact with a confirmed case.
  • Our view is an employee is under an express and implied duty to tell their employer of this fact.
  • Practically, to ensure employees understand their reporting obligations, employers should develop a clearly communicated policy on what and when an employee is expected to inform their employer of risk factors.

2. Can the employer demand employees to disclose themselves as being a “risk-factor”? Yes. 

  • There is no strict legal obligation on employers to demand this information but an employer has a duty of care to their workforce under the Health and Safety at Work Act 1974 and must take reasonable precautions to protect the health and safety of employees. Therefore asking this information is prudent.
  • It would be a reasonable instruction to ask an employee to disclose any relevant information and employers should carry out a risk assessment if they become aware that an employee has been in close contact with a confirmed case or has visited a high risk area.

3. Can the employer issue an instruction (or a policy) requiring employees to report co-workers with flu symptoms (i.e., fever, cough, difficulty breathing, pain in the muscles, tiredness) to the employee? Generally, this is not recommended. 

  • However, asking employees to report may be a justified intrusion on privacy in light of the worsening situation in the UK. For example, if another employee in the workplace appears not to be following current self-isolation advice. The UK regulator (the ICO) has said generally they will take into account the compelling public interest in safety when assessing any intrusion on privacy. Nevertheless, any such reporting policy i would require a clear reporting channel with limited access to the reported data, and clear/limited retention periods.

4. Can employees refuse to come to work? Generally, no. 

  • However, there are now numerous categories of people who the UK government advises should self-isolate at home: (i) people who develop potential COVID-19 symptoms (self-isolate for 7 days), (ii) anyone in a household where someone develops potential COVID-19 symptoms (isolate for 14 days). In addition, home-working is advised.
  • UK government guidance also identifies some groups of employees as particularly at risk of serious COVID-19 infection and strongly advises social distancing, which includes home-working. This includes people aged 70 or older; people aged under 70 with an underlying health condition; pregnant women.
  • The general obligation employers have to preserve trust and confidence in the employment relationship means that employers should speak to employees to understand the reason for their refusal and whether they have genuine concerns, e.g., for example because they are in a high risk category.
  • Practically, if the employee is not unwell, they may have a job which can be done from home and a solution would be to instruct them to do so. If they are not able to do so, you may be able to agree that they take holiday. In certain circumstances, an employer can require an employee to take holiday. Alternatively, the parties could agree on a period of unpaid leave.
  • However, if it is not possible to reach a satisfactory solution with an employee who is not at high risk or within government self-isolation guidance, the employer may choose to begin disciplinary proceedings against the employee. In the current climate, we think it quite unlikely that employers would take this step given the PR / ER implications. However, as the situation develops, and if many employees are perceived as using COVID-19 as an ‘excuse’ not to attend work but to request payment, a more assertive approach to managing refusals to work may be required.

5. Can employees refuse to attend meetings or to travel? For most travel, probably yes, in the light of current restrictions. 

  • Please note our general comments to question no. 4 above concerning self-isolation guidance, high-risk categories and the need to preserve the relationship of trust and confidence.
  • Domestic travel: The UK government now advises social distancing. This does not expressly deal with business meetings or travel but it does encourage home working and advises against non-essential use of public transport.
  • International travel: The UK government now also advises against all but essential international travel anywhere in the world, in large part due to the risk of travel bans preventing the employee from returning home. This advice is likely to affect travel insurance coverage. Many countries have already banned UK visitors.
  • All employers should assess whether any travel (domestic or international) is essential. We consider that in all but truly exceptional cases it would be unreasonable to insist on international travel.

6. Can the employer send employees on leave / suspension from work?

  • Employers may have a contractual right to ask employees to work from home or not to attend work at any point during their employment. This will depend on the wording of their contract.
  • Even if they do not, it may be a reasonable instruction based on a risk assessment in the current circumstances to either instruct their employees to work from home if they have a job that can be done remotely and if not, to ask them not to attend work.
  • It would usually be expected that an employee who has been told not to work by their employer but are otherwise able and willing to do so would receive their usual pay and benefits. For information on paying other categories of employees, please see question no. 10 below.

7. When is the employer forced to shut down its operations?

  • The UK government does not advise automatic closure even if a case has been confirmed in the workplace.
  • In this situation, Public Health England’s local health protection team will contact management to advise on next steps.
  • Nevertheless, the UK government does advise people to work from home where possible.
  • Employees do not generally have a right to strike – and therefore could not force closure of a site/operations. A recognized trade union could call a ballot over health and safety concerns which could, if members were in favour, result in a strike on notice. However, this would take some time in order to complete the necessary balloting formalities (unless it was a “wildcat” action).

8. Does the employer have the obligation to report infections occurring in the business to the health authorities? No.

9. Can the employer require an employee to see a doctor? No (in COVID-19-related cases).

  • The UK government instructs people to not contact the NHS for asymptomatic cases, or for mild to moderate COVID-19 symptoms. Only people with severe symptoms, or symptoms that last longer than 7 days (other than a cough) should contact the NHS.
  • The employer may have a contractual right to ask the employee to see the company’s medical adviser but cannot force the employee to do so. Such a request would also run contrary to current guidance on stopping the spread of COVID-19.

10. If employees are sent on leave / suspension from work, or refuse to come to work or if an operation is being shut down, do the employees still need to be paid?

Whether the employee is entitled to be paid will depend on the reason why they are not working:

  • Absent due to being unwell: The employee is entitled to statutory sick pay (SSP). SSP is due to become payable from day one of absence in these circumstances, rather than from day four (the usual rule). The employee might also be entitled to company sick pay, if applicable.
  • Self-isolating pursuant to government guidance, and unable to work as a result: employee is entitled to SSP (due to be payable from day one). They might also be entitled to company sick pay, if applicable.
  • Self-isolating pursuant to government guidance but is still able to work remotely: employee is entitled to their usual salary.
  • Working from home due to employer instruction: employee is entitled to be paid their usual salary.
  • Not working due to employer instruction but does not have a job that can be done remotely. employee is entitled to be paid the usual salary.
  • Employee refuses to come to work without good reason: not entitled to pay.

11. If kindergartens and schools are being closed and employees need to stay home and cannot work, does the employer need to pay them and – if so – for how long? 

  • The employer may allow the employee to work from home if their job is one that can be done remotely.
  • Employees have the right to take a reasonable amount of unpaid dependent’s leave if necessary to care for children or make arrangements for their care. They may also be able to take unpaid parental leave for up to four weeks per year per child, or ask to take annual leave. employer are not obliged to grant additional paid time off in these circumstances, but if an employer chooses to do so this must be done fairly and in a non-discriminatory way.

For more details see our complete payroll & benefits guide to the U.K