COVID-19 – Your employment rights – FAQs

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Self-Isolating and Sickness

I have symptoms of COVID-19 and I am self-isolating – what should I be paid?

If you’re self-isolating because you have symptoms of COVID-19, unless you can work from home, you will be “deemed incapable of work” for the prescribed period of isolation. If you’re not working, you will be entitled to SSP or company sick pay (depending on your employer’s sick pay policy).

If you can work from home and you are not too sick to do so, you should receive your pay as normal.

I am self-isolating as someone in my household has symptoms of COVID-19 – what should I be paid?

If you are self-isolating because a member of your household has symptoms of COVID-19 then (unless you can work from home) you will be “deemed incapable of work” for the prescribed period of isolation.

As above, you will be entitled to SSP or company sick pay (depending on your employer’s sick pay policy). If your employer allows you to work from home and you are not too sick to do so, you should receive your pay as normal.

Do I still have to wait to claim SSP if I am self-isolating?

If you are sick or self-isolating because of COVID-19 you can claim SSP from day 1 of your incapacity.

There is also a system of online self-isolation notes in place, to evidence the reason for the absence and which can be provided to your employer.

Extremely Vulnerable Family Members

I am shielding because I am classed as “clinically extremely vulnerable” – am I entitled to SSP?

Yes, if you are not able to work from home (according to amended sick pay regulations which came into force on 16 April). You should inform your employer before you start shielding (if possible) and provide evidence of your letter from your GP or from the NHS if required to do so. If you can work from home you may be required to do so during shielding. If you can’t work from home then you can be deemed “incapable for work” for SSP purposes and will be able to claim SSP for the period of shielding.

I am a key worker who is classed as “clinically extremely vulnerable” – do I still have to attend work?

No as you can now argue that you should be on sick leave – please see above. However, you should inform your employer before you start shielding (if possible) and provide evidence of your letter from your GP or the NHS if required to do so. Failure to attend your workplace without first informing your employer of your status could lead to potential disciplinary action against you.

In certain circumstances, if your employer forces you to attend work and so puts your health and safety at risk, that might be a breach of the implied term of trust and confidence that exists in your employment contract. However, you would be wise to seek specific legal advice before trying to rely on that.

In the event of a dispute, you might also want to ask your employer to undertake a Risk Assessment. You may have rights under the Employment Rights Act 1996 that protect you from dismissal or suffering a disadvantage in health and safety-related circumstances. Again, you should seek specific legal advice about this.

If you believe your employer is treating you less favourably to other employees in relation to any type of leave because of a disability, your age, sex or any other protected characteristic, you should seek legal advice.

I am a key worker living with an “extremely vulnerable” member of my family – do I still have to go to work?

Yes, unless you can come to an agreement with your employer. Employees in this position should ask their employer about working from home or going onto furlough leave if it is available. Other options include unpaid leave or taking annual leave.

If you fail to attend work without prior agreement you could face disciplinary proceedings.

Changes in Terms and Conditions

My employer has asked me to take a temporary 20% pay cut but continue working as normal – can they do this?

The first point to consider is if the pay cut is voluntary or imposed.

If your employer changes your pay without your agreement you may have a claim for breach of contract and/or unlawful deductions from wages, for the amount you have lost. Most employers will ask for your consent to change your pay for this reason.

If you agree to a pay cut you should be aware that even “temporary” changes to your terms and conditions can have long-term effects. If you agree a pay cut that is described as “temporary” but is open-ended, then you risk it becoming permanent. Unless you agree otherwise with your employer, there is no obligation on them to reverse the reduction they have made. Get advice if you’re not sure about your position.

There’s nothing in principle to stop you rejecting a request to take a pay cut, however, if enough of your colleagues do the same then it may cause your employer to look at other cost saving measures, for example, redundancy.

Annual Leave

Can my employer force me to take annual leave or cancel my leave?

Providing your contract of employment doesn’t say otherwise then the answer is probably yes.

An employer can cancel pre-booked leave and can force an employee to take annual leave during a particular period of time by giving the correct period of notice. In the case of forced annual leave, an employer must give notice that is twice the length of the amount of leave it wants the employee to take. For example, two weeks’ notice must be given for the employee to take one week of leave.

There is an argument to say that the lock down makes taking annual leave (or, at least, enjoying it – which might be the same thing) impossible – but care is needed about relying on this – the situation we are in is new, and the legal arguments are untested.

What if I want to cancel my annual leave that I have already booked?

This will depend on the employer’s policy. Many employers will want to ensure annual leave is taken as normal during this time and so will insist on you taking annual leave that is already booked.

If your employer does allow you to cancel your booked annual leave, they could still force you to take it later if your contract doesn’t provide otherwise.

Can I carry my leave over into next year if I can’t take it this year?

An amendment has been made to the Working Time Regulations which provides that if it isn’t reasonably practicable to take all of your leave in the current leave year due to COVID-19, leave can be carried over. The accrued leave can then be taken in the 2-year period immediately following the leave year from which it was carried over.

The change does not give you the automatic right to carry over the statutory leave into the next two years, but it does make it possible in certain situations with agreement from your employer.

Furlough Leave

What is Furlough leave?

On 20 March 2020, the chancellor announced the Coronavirus Job Retention Scheme. Through the scheme the government commits to cover 80% of the “employment costs” of furloughed workers, up to £2,500 per month per worker. A furloughed worker is someone who remains employed, but is not provided with work. The aim of the scheme is to ensure that employers who are significantly impacted by the Coronavirus have a way of continuing to employ their staff.

I’ve been put on Furlough leave but I want to work

Your employer will need your consent to put you on furlough leave with reduced pay, as without consent that might amount to a breach of contract and an unlawful deduction from wages. Although if an agreement isn’t reached the alternatives may be worse: e.g. unpaid leave/lay-off or redundancy.

I want to be granted Furlough leave

You cannot demand to be put on furlough leave. It is for the employer to utilise the scheme, if it sees fit.

Can I take annual leave while I’m on furlough leave?

Yes, you can take annual leave on furlough leave but you should be paid 100% of your pay, not just the 80% the government provides. Normal rules on annual leave apply in terms of requesting it.

We cannot yet be certain whether employers can force employees to take annual leave while on furlough leave. This is still the subject of much debate and has not yet been clarified by the government.

Rights of Furloughed workers

When on furlough leave you have the same rights as you did previously. That includes maternity rights, other parental rights, rights against unfair dismissal and to redundancy payments.

However, in contrast to maternity leave, you can’t be on paid sick leave (with SSP) and furlough leave at the same time. The smart money at present seems to suggest that you can’t be both on furlough and taking annual leave; but if you do take it, you should get 100% of normal pay (not 80% under furlough).

When the government ends the Job Retention Scheme, your employer will have to make a decision as to whether employees can return to their duties.

Furlough leave for 20 or more employees

If your employer is seeking to furlough more than 20 employees, and furlough cannot be agreed so that eventually it becomes a redundancy situation, it is possible that statutory collective consultation obligations will apply. If so, there are minimum periods for information and consultation. If the consultation period is too short or doesn’t take place you or any recognised trade union may have grounds for a protective award claim.

For more information of advice on your employment rights during the COVID-19 pandemic our experienced employment solicitors can help, please contact us for  further guidance or subscribe to our monthly newsletter.