Furloughing Employees & Other Employment Issues Following COVID19

Head of Trinity's Employment Law team, barrister Jane Callan provides the following general employment law advice in respect of the issues arising in handling the response to the current Coronavirus health emergency and its impact on the workplace. The Government’s announcements have come in quick succession and the advice below is predicated on the position as it stood on 24 March 2020.

Employees who are required to self-isolate

Such employees may be advised to do so because of their own health status (e.g. falling within a high risk group) or because someone they live with is suspected of having been infected with the virus. If they are able to work from home and are fit to do so, they should receive normal pay. If they have been advised to self-isolate by their GP or NHS 111, then they would qualify for SSP payable from the first day of the absence, and not subject to the “waiting days” requirement which would normally be the case. This would be applicable to the period for which they are required to self-isolate (normally 7 days if they themselves have mild symptoms and are not in a high risk group, or 14 days if they are members of the household of someone who has developed mild symptoms – the Government website gives full details of the isolation periods applicable).

Employees who fall sick

As with any period of sickness absence, the employee is entitled to the sick pay which is set out in their contract of employment or SSP if no occupational sick pay is provided. 

Employees requiring time off to look after dependants

Employees have the statutory right to take a reasonable amount of unpaid time off during working hours where it is necessary to assist a dependant who has fallen ill, or because a dependant has died, or there has been an unexpected interruption or ending of arrangements for the care of a dependant child. Consideration may be given to the employee taking the time off as annual leave.

Bereavement leave

Sadly, the need to consider bereavement leave may arise. Many employers have specific policies to cover this eventuality. Employers will undoubtedly wish to be sympathetic to employees who are in this situation and grant paid or unpaid leave as they decide is appropriate. 

The Government’s Job Retention Scheme

This is a pledge to financially assist employers who because of the current situation are unable to support the employment of their workers. As an alternative to making their employees redundant, the employer may furlough (which is a form of unpaid absence, or temporary standing down with no payment due to lack of work) their employees.

We are in unprecedented times, and the Job Retention Scheme is an attempt by the Government to mitigate wholesale job losses which might otherwise arise. The employer needs to identify the staff it wishes to “furlough” and keep on the payroll as opposed to making redundant. It will be necessary to discuss this measure with employees to secure their agreement as there will be very few contracts of employment where the employer has the right to send its workers home without pay in the context of a lay off. The Government intend to pay a grant of up to 80% of pay (to a maximum of £2,500 per month) which it is anticipated will be paid through the HMRC. It will be subject to conditions which are yet to be fleshed out, but the employer will not be able to provide the furloughed employee with work to do at home. Further, the employer will need to seek the agreement of the employee to pay 80% of pay if they are not going to make the pay up by adding the 20% “shortfall”.

Many details are still to be worked out by HMRC, including whether the employer would formally have to have commenced redundancy procedures, including consultation and fair selection of employees to be furloughed if there are some employees who are retained to perform work, such as work from home.

For any employees who are dismissed, the usual test of whether the dismissal was within the reasonable range of responses will apply. In the circumstances of the current national emergency, it is potentially a relevant consideration whether the employer looked at furloughing the employee rather than dismiss for redundancy. 

Further advice

Trinity Chambers Employment Team are ready and willing to assist with tailored advice as appropriate, either by telephone, video link or email. For further assistance, please contact the clerking team: either Steve Walker by email or call on 0191 245 9589 or Josh Stewart-Tilling by email or call on 0191 300 9359.

In response to the escalating Coronavirus crisis, Jane, other barristers in Chambers and staff are committed to providing as much assistance as possible, including urgent advice, online resources and other support, during these challenging and unprecedented times, as such Trinity have a dedicated section of the website focused on COVID-19.



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