CORONAVIRUS – latest update 15/05/2020

ADVICE FOR EMPLOYERS

 

Despite the best of intentions, there are already challenges being experienced by some employers following the UK Prime Minister’s address on Monday 11th May 2020 “encouraging” employees back to work.  Some of these are around the “how to do so”, “what safety measures do I need”, and “how to manage those on furlough”.  The following day, the Chancellor Rishi Sunak announced an extension to the Coronavirus Job Retention Scheme (CJRS).

 

This bulletin is intended to offer some clarity on the above, however it should be noted that as previously following an announcement, not all the information has emerged or is as detailed as we would like, and may be subject to amendment.

 

STAY AT HOME or STAY ALERT

The biggest change announced by the Prime Minister was the slogan of Stay At Home which has now changed to STAY ALERT (Scotland, N.Ireland and Wales have chosen not to adopt the new slogan).  The objective of the change in emphasis is to start an easing of the lockdown in order to restart and reengage the UK economy, so what does it actually mean?

 

Well it didn’t say: “everybody get back to normal” that is for sure, as the risks of the Coronavirus spreading and potentially creating a second spike are still very real.

 

So what should we do?

 

  1. Work from home, if you can.

What this means is if at all possible and you accommodate your employees working from home then you should do so.

However, you must be aware of the need to ensure there is adequate facility for the employee to work, so do they have a table, a chair, a screen or are they working on their laptop on their knees from the sofa. If this is a short-term arrangement, then to have the occasional day working from home would not be an issue however with the “lockdown” employees working from home is becoming more prolonged.  As an employer, you may need to consider providing support to ensure their safety at home is managed.

If your employees can’t work from home and have to come to work, you need to follow appropriate guidance regarding travelling safely and putting in place any relevant measures at work.

 

  1. Carry out a Covid-19 specific risk assessment.

This is a MUST do. The UK Government has provided the Health & Safety Executive (HSE) with additional funding to train up inspectors to come and visit you. This will happen so you need to be prepared. As a minimum, it is recommended you have a policy, a risk assessment and a signed toolbox talk with all employees that they understand their responsibilities in managing any associated risks.

If possible, you should publish your risk assessment on your website and all business of 50 employees or more must do so.

Our sister company We do Health & Safety can support you with this.

 

  1. Maintain 2 metres social distancing.

We are going to have this measure in place for some time even once we get back to the “new normal”, so it’s important to be proactive in encouraging and developing a mindset in all your employees to develop a culture of social distancing.

As a business, you can change your workspace, desk layout, have one-way systems, place marking tape on the floors, close off kitchen and canteen areas, provide hand sanitiser at entry and exit points, encourage regular handwashing, and provide appropriate PPE where relevant.

These are known to be the most effective ways to minimise transmission risks.

 

  1. If you can’t achieve 2 metres social distancing, manage the risk.

You need to consider additional changes to your workplace such as putting up physical barriers, changing shift patterns, staggering travel times to/from work, avoid hot desking at all costs (it’s not possible to manage hygiene safely), have employees working back to back, as well as encouraging an open culture around discussing symptoms so if an employee starts to present, they understand the need to self-isolate.

 

  1. Reinforce cleaning processes.

Apart from encouraging all employees to regularly sanitise their workspace you need to provide cleaning materials for them to do so, and be strict in enforcing breaches with your employees through education in the first instance, and disciplinary procedures if it continues.

 

If your workspace has been vacant for some time, getting professional cleaning services to carry out a deep clean in advance of a return to work will minimise the risk of transmission and give confidence to your employees that you are taking their safety and welfare seriously.

 

You must display a recommended poster stating that you are abiding by appropriate safety measures in respect of COVID-19, see the link: https://assets.publishing.service.gov.uk/media/5eb959f5e90e0708370f97f9/staying-covid-19-secure.pdf

 

Furthermore, there are eight industry specific booklets produced relating to working safely during COVID-19, which you should refer to where appropriate, links are available in each subject header:

 

  1. Construction and other outdoor work

https://assets.publishing.service.gov.uk/media/5eb961bfe90e070834b6675f/working-safely-during-covid-19-construction-outdoors-110520.pdf

 

  1. Factories, plants and warehouses

https://assets.publishing.service.gov.uk/media/5eb965d5d3bf7f5d3c74a2dd/working-safely-during-covid-19-factories-plants-warehouses-110520.pdf

 

  1. Labs and research facilities

https://assets.publishing.service.gov.uk/media/5eb9752086650c2799a57ac5/working-safely-during-covid-19-labs-research-facilities-110520.pdf

 

  1. Offices and contact centres

https://assets.publishing.service.gov.uk/media/5eb97e7686650c278d4496ea/working-safely-during-covid-19-offices-contact-centres-110520.pdf

 

  1. Other people’s homes

https://assets.publishing.service.gov.uk/media/5eb967e286650c2791ec7100/working-safely-during-covid-19-other-peoples-homes-110520.pdf

 

  1. Restaurants offering takeaway or delivery

https://assets.publishing.service.gov.uk/media/5eb96e8e86650c278b077616/working-safely-during-covid-19-restaurants-takeaway-delivery-110520.pdf

 

  1. Shops and branches

https://assets.publishing.service.gov.uk/media/5eb9703de90e07082fa57ce0/working-safely-during-covid-19-shops-branches-110520.pdf

 

  1. Vehicles

https://assets.publishing.service.gov.uk/media/5eb96cd6d3bf7f5d3a907e58/working-safely-during-covid-19-vehicles-110520.pdf

 

 CJRS EXTENSION

The extension to the CJRS is to be applauded, but as expected the specific details have not been released and are to be made available towards the end of May.  We will report again when we have more details if anything has changed, but for now, this is what we know:

 

The scheme has been extended until 31st October 2020:

  • It is unlikely this will remain available for all employees at all companies, but we will need to wait and see

 

There is no change to the scheme until 31st July 2020:

  • This means that anyone who is on furlough can still benefit from 80% (up to £2,500) of their wages per month for a longer period
  • You can continue to submit claims via the HMRC Portal to claim the above monies back (don’t forget holidays need topping up by 20% and you cannot claim back for any payments you make to employees above the 80%)
  • You need to make sure your reasons for leaving employees on furlough are because your business remains substantially impacted as a result of the Coronavirus (keep your information, letters and reasoning in case of a HMRC audit)

 

From 1st August 2020 a flexible programme will be made available for employees to be on part-furlough and part-time working:

  • This is so you can retain employees on a hybrid of furlough and part-time hours to ease them back to work, and so you can still claim some money back from HMRC
    • For example; you have an employee who pre-lockdown worked 40 hours per week and you only need them from 10 hours each week as the business restarts
      • 10 hours are paid by you at 100%
      • The other 30 hours are subject to reimbursement from the HMRC
      • This is anticipated to be reimbursement up to a total of 80% of the overall pay for the employee – until clarified, it is not thought to be 30 hours at 80% but the overall pay to be no less than 80% of the employees normal pay
    • Note however that this part of the CJRS it appears for now that this will only apply to employees who are on the scheme, so we must assume if you have taken them off furlough before 1st August 2020, they will not be eligible

 

MY EMPLOYEES REFUSE TO COME BACK TO WORK

 

I don’t believe my work is a safe place to be

There is much media frenzy and comment from the Unions encouraging employees to refuse to return to work, which is not particularly helpful especially if you are an employer who is working hard to ensure the future of business and continued employment opportunities.  You do need to make sure you are putting in place any relevant measures and treat the situation in a fair and reasonable manner.

 

Therefore, if you have an employee that says this, you need to treat is as a formal grievance, listen to their concerns, show that you’ve taken all the necessary steps and safety measures so that they have no reason to refuse to return to work.

 

If they still refuse, then you “could” consider disciplinary action however this would probably be viewed harshly if it were to go to Employment Tribunal.  In these situations, inform the employee they are required to use their accrued but untaken holidays or take unpaid leave.

 

You could also consider leaving them on furlough, however you will need to be able to show your grounds for doing so if you later have an audit from HMRC regarding your claim.

 

Note: unless they have symptoms or have a medical certificate, they are not sick and therefore can’t be paid SSP.

 

I can’t come into work because of childcare

Such employees can be furloughed but there is no obligation to do so. You will need to be able to show your reasons for doing so, and make sure you retain all documentation in case of an audit.

 

You could again require the employee to take holiday or unpaid leave, but please be aware that you need to be sure you are not discriminating or singling out individual employees and should treat all consistently.

 

I’ve been working at home for months – I don’t want to come back to the office

There is likely to be a substantive increase in flexible working requests for employees to work from home. If you refuse, you will have to be able to “objectively justify” why you have refused this. If an employee has been working efficiently at home for a number of months, this will be increasingly hard to argue. You may need to consider a hybrid arrangement to allow flexibility at work and may have to consider changes to your business model to accommodate.

 

Your challenge will be in the performance management of employees who work from home, so the implementation of monitoring software and some face to face interaction will need to occur. Please also note, that working from home is not for everybody as there is a danger of non-social contact which can have an impact on mental health and ALL of these issues need to be considered.

 

I can’t or am scared to travel on public transport

There has been guidance issued for employers and employees for travelling on public transport and it is being encouraged where possible for employees to cycle or walk to work and if this isn’t an option, to travel by car.  The dangers here are that you disadvantage lower paid workers or those in rural communities, so in the “new normal”, you may need to consider creative ways to support your employees with this.

 

FACE MASKS

 The scientific data is divided on the effectiveness of face masks in minimising transmission risks, however where social distancing is difficult or in enclosed spaces, this would be a sensible option as the coronavirus is transmitted via airborne or surface touch contamination.

 

Providing your employees with face coverings/masks (not medical grade PPE reserved for the NHS) would be a reassuring step to take. There are many good quality masks available. Note if masks are required as part of PPE in order to carry out their role, these need to be of an appropriate quality standard.

 

HOLIDAYS

 As of yesterday, 14th May 2020, the UK Government finally clarified the burning question over holidays. The Working Time Regulations (WTR) have not been rescinded and so the following applies:

  • Employees are entitled to 5.6 weeks holiday per year (pro rata) which is made up of 4 weeks as per the WTR plus 1.6 weeks additional from the UK. This equates to 28 days holiday per year.
  • Emergency legislation now allows for up to 4 weeks (the WTR amount) to be carried forward for up to two years which is a temporary amendment to the WTR. This would be where you cannot afford to have lots of employees using holiday up as soon as we get out of lockdown, as an alternative to them using it before the end of the year or forfeiting it, as this would be unfair.
  • In current legislation, you have the right to both refuse holidays and also to tell employees when to take their holidays.
    • If cancelling or refusing holiday, you need to give the same amount of notice as the holiday that’s being requested. If one week is being cancelled, then give one week’s notice.
    • Where you are telling them the holiday they have to take, you must give at least twice the notice to the amount of time required (unless you have the employee’s agreement to vary this). For two weeks holiday that is being enforced, this requires four weeks’ notice.
    • In both circumstances, you need to be able to give a good business reason for this. For example, you need the employee in the workplace for critical operational reasons, or in respect of those who have been on furlough, you need to minimise the cost impact to the business post-lockdown.
  • With an employee who is on furlough, it is reasonable to expect them to get rest as they must not carry out any work, however if they are in a situation where they have specific carer duties that would stop them from taking a break, then you may need to consider allowing them to carry the holiday over.

NOTE: you must pay at 100% of salary for all holiday, which means a top up of 20% for those being paid only 80% (or £2,500) of salary per month. This does not breach the furlough and so you can claim the 80% via HMRC furlough scheme.

  • Where you have employees who are working from home and not on furlough, you can ask them to use up holiday but they must be able to get adequate rest, so not requiring them to look at emails, do work or answer the phone would allow them to do so.

 

 

This advice is being reviewed and updated regularly and is currently in line with HMRC, UK Government and ACAS guidance as updated 15th May 2020.

 

Should you require any further advice or guidance please call us on our usual HR number of: 01325 488425 or email: enquiries@wedohr.co.uk