Monaco Slctrs (UK) have just published the following article..
In March 2020 the UK went into lockdown for coronavirus (covid-19). Workers must only travel to and from work if it’s absolutely necessary. Non essential shops are closed. Construction sites are still open, and places of work are being allowed to determine for themselves whether they are essential or not.
In this pandemic, there have been unprecedented effects on employees’ rights, including the right to get paid, and the right to health and safety.
Last updated: 20th April 2020.
In addition to our free coronavirus employment rights app, you can also access our free coronavirus letter templates. Or, if you think you need a lawyer to take your case, including on a no win no fee basis, please request a free consultation.
This guide covers:
Can I be forced to attend work if vulnerable, or a danger to a vulnerable person?
Coronavirus Job Retention Scheme aka ‘furlough leave’
Can I be dismissed for self isolating and not coming into work?
Can my employer reduce my salary
Self employed affected by coronavirus
Am I entitled to pay when self isolating for coronavirus?
Am I entitled to pay if my employer tells me to stay off work?
What are my rights if I take time off to care for dependents?
If I get coronavirus, will I get sick leave and pay entitlements?
If I am made redundant due to covid 19 does my employer still have to consult me?
If I have been laid off because of coronavirus but I want to leave my job can I choose redundancy?
Can I be forced to attend work if vulnerable, or a danger to a vulnerable person?
If you are pregnant, old, or suffer from a disability or ill-health which your employer already knows about, then It’s to be hoped that your employer would be receptive to proposals for you to work remotely where possible, or to go on the government Coronavirus Job Retention Scheme on temporary ‘furlough leave’ (see below).
If you are living with someone in that category, but your employer is still forcing you to come to work, then your employer could be breaking the law.
Whilst the law on this is not yet entirely clear in relation to covid-19, we advise that it could be unlawful for your employer to insist on your attending work because by doing so they may be subjecting you to one or other of the following:
– discrimination relating to pregnancy, age or disability, or
-breach of health & safety law
Coronavirus Job Retention Scheme aka ‘furlough leave’
If your employer’s business has been affected by covid-19, there is now the government Coronavirus Job Retention Scheme, known as the furlough leave. Under the scheme, your employer can let you stay at home home, knowing that the government will pay your employer 80% of your salary, up to a maximum of £2,500 per month until at least the end of June 2020. This can be backdated from 1st March 2020.
Your employer needs to agree with you the way this scheme will apply to you, specifically whether you are happy to accept only 80% of your wage up to a maximum of £2,500 per day, or whether you insist on receiving the full 100% (with no upper limit). They can’t just put you on it without your agreement. They can make you redundant if you don’t agree, however. There is more detailed information and tactics for employees about this in our separate practical guide on furlough leave.
Can I be dismissed for self isolating and not coming into work?
No! Your employer might be allowed to discipline you, but they can’t legally dismiss you.If they tried to, it would amount to automatically unfair dismissal under s.100 Employment Rights Act 1996.
There is a case about this kind of dismissal between Harvest Press Ltd & McCaffrey 1999 ILRL 778. It doesn’t of course relate directly to the coronavirus, but it is a good example of automatically unfair dismissal.
Read our more detailed guide on coronavirus unfair dismissal here.
Can my employer reduce my salary
Your employer can reduce your salary if they are justified in doing so. During these times of coronavirus, we are seeing employers telling employees to take a pay cut. Is that constructive dismissal? Can you refuse? If other people are also being asked to take a pay cut too, then it would be easy for your employer to justify it.
They can simply give you your notice and give you another contract of employment with the lower pay. Then they can tell you that if you don’t agree to work on the new contract, your employment will end when your notice period is over.
Self employed affected by coronavirus
On 26 March 2020 the Chancellor announced 80% pay for self employed out of work due to coronavirus / covid-19. The main points of this scheme are:
- The money will be available in June 2020.
- It takes an average of your last 3 years’ income.
- It is only for people on less than £50,000 p.a..
- Recipients can work at the same time as receiving this.
Read more in our article on the government scheme for the self employed and read the government website for the self employed scheme here.
Am I entitled to pay when self isolating for coronavirus?
You are legally entitled to Statutory Sick Pay (SSP) if you have symptoms, or been advised to self isolate by a doctor or other medical authority. You can get an isolation note online on the NHS 111 website
If you want to self-isolate because of Coronavirus, but you are not sick yourself, then the current legislation does not entitle you to SSP. We hope this will change soon.
If you are a vulnerable person, for example old or with underlying health conditions, then again, the current legislation does not entitle you to SSP. Still, we would advise you to get an isolation note online on the NHS 111 website mentioned above. This would then entitle you to SSP.
If you are pregnant, then your employer must do a risk assessment. If it is unsafe for you to attend work, your employer has to suspend you on full pay. If that is within 6 weeks of your due date, then you are entitled to start your maternity leave at that point, as per the legislation here.
If, however, you are able to work remotely, and your employer agrees that you may do so, then in those circumstances, you will be entitled to your usual pay.
You should talk to your employer about your concerns before you decide to take any action, and see if you can agree on the best way forward.
This latest legislation is contained in The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020.
Am I entitled to pay if my employer tells me to stay off work?
If your employer has good reason to ask you not to attend work (eg you have recently returned from a country badly affected by coronavirus, or had contact with someone with the virus), then they can ask you to stay away. You will be entitled to your contractual pay.
If your employer decides to reduce your hours of work or to close your place of work, then you are entitled to pay as normal, without any reduction. Of course your employer can instead put you on the government’s furlough leave scheme (see above) whereby the government pay 80% of your salary whilst you’re at home.
(See S151 Social Security, Contributions and Benefits Act 1992 and S147-154 Employment Rights Act 1996 for relevant legislation)
What are my rights if I take time off to care for dependents?
On 4th April, the government announced that it would extend the Coronavirus Job Retention Scheme (mentioned above) to people with childcare responsibilities caused by covid-19 restrictions. This is great news for parents, but it must be agreed with your employer – furlough is not an automatic right.
So, what are your automatic rights? Well they are set out in the pre existing legislation, Section 57A-57B Employment Rights Act 1996 . According to the legislation, in an ’emergency’, you have a right to ‘reasonable’ time off work to care for dependents. Your dependents may themselves be unwell, or their usual carers/school/other provider can’t operate because of the covid virus restraints.
The time off is unpaid, unless you have an employment contract or insurance policy which provides for payment in such circumstances. What is a ‘reasonable’ amount of time off will depend on your particular situation. Your employer is required to consider your case without reference to any inconvenience or disruption to their business.
Undoubtedly the coronavirus crisis does count as an emergency, and what is ‘reasonable’ is an ongoing period of time for as long as the schools and nurseries are shut, at least. But your first port of call should be asking for full pay or at least furlough leave, whereby the government will pay to your employer 80% of your normal pay up to a maximum of £2,500 per month.
If I get coronavirus, will I get sick leave and pay entitlements?
If you have been diagnosed as having contracted Coronavirus or are suspected by medical authorities as having it, you will be entitled to the usual sick leave and entitlements to pay, as with any other sickness and sickness absence.
(See S151 Social Security Contributions and Benefits Act 1992)
If I am made redundant due to covid 19 does my employer still have to consult me?
Normally, where making over 20 employees redundant, the employer has to consult for a period of 90 days before making redundancies. But with coronavirus, there is probably a defence open to the employer due to ‘special circumstances’, which could compress this period, so they wouldn’t have to consult for the full 90 days. They would however probably need to consult for at least say 14 days. If they don’t do that it’s procedurally unfair dismissal.
If less than 20 people are being made redundant, then your employer has a duty to consult you. This duty is not defined by statute, but is generally said to include more than one meeting, and a chance for you to make some reasonable input into the decision.
If I have been laid off because of coronavirus but I want to leave my job can I choose redundancy?
If you are laid off for 4 weeks in a row, or for 6 weeks in any 13 week period, you can write to your employer and ask them to give you a statutory redundancy payment plus your notice pay. If they don’t reply, you can resign but you have to give notice, as per your notice period (which is the longer period of either your contract or statutory notice period). Then you have a claim for your statutory redundancy pay.
In addition to the legislation and other articles highlighted above, you may find of interest some of our related guides and letter examples listed below.
Next steps
If you think your employer is unfairly treating you because of your absence or pay relating to Coronavirus situations like those outlined above, Monaco Solicitors may be able to help. If you have a low paid coronavirus enquiry, please contact our free coronavirus email helpline or if you need a lawyer to take your case, request a free consultation.
