Covid-19 autumn 2020; overview of key developments for employers

We have learnt many things over the last six months; the latest lesson is that there is no new normal. The Government initiatives and guidance may have slowed down a pace, but the challenges for employers and their employees remain.

Below are some FAQs on recent guidance and issues ranging from employee testing to the new Job Support Scheme. Each issue is complex, often relates to other areas of law and the answers will be dictated by the specific facts. Please contact a member of the Employment and Pensions team if you require more extensive client-specific advice.

All information is correct at time of publication.

Government Job Support Scheme (JSS)

Can employees go straight from Coronavirus Job Retention Scheme (CJRS) to the JSS?
An employee is only eligible for the Job Support Scheme (JSS) if they can carry out at least 33% of their normal working hours. If they are on full-time furlough and there is no role for them from 1 November 2020 then they will not qualify for the JSS. The Government has hinted that this 33% work threshold may be increased in 3 months’ time. Depending on the terms of their flexible furlough agreement, they may be able to move to the JSS once the CJRS falls away on 31 October. It is worth noting that whilst the JSS is available to all employers, large businesses will have to meet a financial assessment test and demonstrate that their turnover is lower post-Covid-19 than before. This test will not apply to small and medium-sized businesses.  

What are the employer’s responsibilities under the JSS?
An employer will need to ensure that there is some work for employees whom they intend to place under the JSS. Employees must then be paid for the work they carry out (at least a third of their normal working hours) by their employer. In addition, their employer will be required to pay a further 22% of their usual working hours, and their pension and national insurance contributions (NIC). The Government will fund a further 22% (subject to a cap of £697.92 per month) so that the employee can earn a minimum of 77% of their normal wage. An employer should confirm in writing to employees the arrangements under the JSS and confirm working hours and payment arrangements.

If work falls away, can an employee be made redundant whilst on the JSS?
An employee cannot be made redundant or put on notice of redundancy whilst their employer is claiming for that employee under the JSS. During this period, an employer must remove an employee from the JSS and pay the notice pay/redundancy pay in full themselves. This is in clear contrast to the provisions of the CRJS.

Tracing apps

Can employers insist that employees sign up to the NHS Covid-19 app
The NHS Covid-19 app was launched on 24 September 2020 and employers are encouraged to facilitate and support employee use of the app within the workplace wherever possible. The Government has noted that the downloading of this app is not mandatory. In workplaces where social distancing is difficult to enforce, employers might want to introduce their own app and insist employees use it. There are, however, competing issues at play. Whilst the employer might argue that they are ensuring the health and safety of their staff by insisting the app be used, the right to employees’ privacy and the lawful processing of special category data must be taken into account before first setting up the app and second, taking disciplinary actions against employees who will not download it. We would advise employers seek more specific advice on this matter before taking action.

What can employers do to limit the impact of the NHS Covid-19 app on their workforce?
The NHS Covid-19 app can have an unwelcome impact on employers as it potentially increases and expands the category of people having to isolate. This then takes more employees away from their workplace although long term it helps reduce the spread of the virus. Even when notified, employees may want to continue work and not isolate for financial reasons. They are only entitled to Statutory Sick Pay (SSP) (or contractual sick pay where relevant) whilst self-isolating. Whilst that might help employers whose workforce has been decimated with sick or isolating employees, it is detrimental in the long run. First, an employer is liable for up to £10,000 fine if they allow an employee who they know should be self-isolating to return to the workplace. Second, the chances of that employer infecting their colleagues and potentially service users are high which would cause further infection and absence. Best advice for employers, although potentially hard to swallow in these difficult times, is to accept the impact of the NHS Covid-19 app and any other similar app and address whether more can be done to top-up their sick pay. This will ensure that potentially infectious employees remain at home which may be hard in the short term but long term will limit infection. For those in adult social care, do see the section below on increased funding for this sector.

Vaccines and testing

Can an employer insist on employees being tested and taking the Covid-19 vaccine when it is made available?
This question is a complex one and involves key human rights, discrimination and data protection principles. For the purposes of this ebrief, we would advise employers to seek specific advice before insisting on either. Employers may encourage employees to be tested and in due course take any vaccine that is developed, but we would advise that enforcing either of these or issuing draconian measures against employees who fail to comply, will risk successful claims. Mandatory testing may be enforceable in specified circumstances within the social care sector.

Employees refusing to return to work

Can an employee refuse to come back to work on health and safety grounds even if a risk assessment has been completed and personal protective equipment (PPE) provided?
Under s44 of the Employment Rights Act 1996 (“ERA”), if an employee either leaves work or refuses to attend work because they believe they would be in serious and imminent danger if they remained at work, they have a right not to suffer a detriment. Under s100 of the ERA, they are also protected against any unfair dismissal on account of them exercising this right regardless of the number of years’ service. A detriment includes an employer withholding wages until the employee returns to work. Key to this issue is that it is the employee’s subjective view of what constitutes a “serious and imminent danger” and not an employer’s perspective.

Does an employee’s right under s44 of the ERA mean an employer must continue to employ them on full pay until they return?
This area of law is one on which there is little case law or direction; the pandemic has essentially been its first opportunity to shine! Clearly, each situation will rest on its own merits and facts but there are some general themes.

• Current risk assessments and available PPE are key to this issue. It is key to find out why the employee believes that it would be dangerous for them to return work and what, if anything, could be done to remedy this situation.
• There may be other factors at play which the employer needs to consider. Is the employee from a community that has been more severely affected by the pandemic? Are there underlying health issues that need to be considered? Is the employee concerned about vulnerable people they live with? Open communication with the employee will enable the employer to address these concerns where possible.
• A tribunal will look to see whether the employee’s view of the serious and imminent danger was a reasonable one. An employee who has been regularly consulted in creating a Covid secure working environment by their responsive employer may find that more difficult to prove.
• Within the economic climate, employers may need to dismiss more readily than in pre-pandemic times. A dismissal does carry risk and this risk exists from day one of employment as there is no qualifying period and there is no cap to compensation. If an employer chooses to dismiss then our advice would be to ensure that there is a clear paper trail of everything that has been done to mitigate the risk to the employees including risk assessments and revisions, relevant government guidance and conversation notes/emails.

Adult Social Care Infection Control Fund (ICF)
On 1 October 2020, the Government announced further funding for the adult social care sector to help reduce the rate of transmission within this sector. A further £546m has been made available until March 2021 to be payable in two instalments to local authorities; 1 October and 1 December.

Are there any restrictions on the funding?
The funding is available to all adult social care including those which do not have a contract with the local authority. However, the monies must be used to reduce the transmission of Covid-19 within and between care home settings and reducing the need for staff movement between sites. In practice, this means that it is not for topping-up employees’ wages on furlough, nor for paying employees sick (not with Covid-19) nor for PPE. The funding should enable providers to pay the wages of workers who are self-isolating so ensure they receive their normal wages and to compensate workers whose normal working hours have been reduced due to the prohibition on movement between premises. Further details can be found in the guidance linked above. Appendix 1 outlines examples of where the fund can be utilised.

For more information

If you have any questions or would like further information please contact Matt Wort.

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