Government advice for employment FAQs
What legal obligations must employers factor in when making personnel decisions relating to Covid-19?
In addition to express and implied obligations in employment contracts, employers should be mindful of the following duties:
- To protect the health, safety and welfare at work of the workforce and others who might be affected such as customers, suppliers and visitors. There is also a common law obligation to take reasonable care of the health and safety of their workforce.
- Not to discriminate against staff with protected characteristics, and to make reasonable adjustments for those with disabilities.
- To comply with the The Health Protection (Coronavirus, Restrictions) (No. 2) (Amendment) Regulations (Northern Ireland) 2021
- Employers should also be aware of their obligations under data protection law. It is worth noting that the ICO has included comforting recognition on its website that the Covid-19 situation is a public health emergency, so businesses' data protection practices might not meet their usual standard, and has said that it won't penalise organisations that need to prioritise other areas or adapt their usual approach during this extraordinary period. Employers should always exercise caution when collecting special category data, keeping in mind the basic data protection principles such as proportionality, data minimisation, etc.
What do employers need to do for employees working from home?
Considering the current emergency situation we find ourselves in, we are of the view that attention should be first given to employment protection and the day to day continued running of your business. When that has been achieved, we should consider the health and safety responsibilities for home workers. When someone is working from home temporarily, as an employer you should ensure:
- Regular communication with manager and potentially other team members via online support tools e.g. Skype
- That they clearly understand the work delivery expectations
- That they have a work suitable area at home
Should this work from home situation continue for several months, employers may want to consider having a full Homeworking Risk Assessment completed to demonstrate care and support for employees.
Do employers need risk assessments for staff working from home?
If work is primarily with display screen equipment, the Health & Safety Executive advises that employers do not need to do home workstation assessments for those working from home temporarily. Employers could provide workers with advice and forms to complete their own basic assessment at home. It needs to be accepted that it will not always be possible to follow the letter of the law in relation to home working risk assessments and that the priority should be to ensure that where possible people have the ability to work from home.
Do employers need to provide equipment to staff working from home?
Employers should try to meet employee needs where possible, e.g. this could mean allowing workers to take this equipment like laptops, keyboards etc. home. For other larger items (e.g. ergonomic chairs, height-adjustable desks) encourage workers to try other ways of creating a comfortable working environment (e.g. supporting cushions), in the short term. Conducting a Homeworking Risk Assessment would be appropriate where an employee raises concerns about their remote working conditions.
Can an employer conduct right to work checks remotely?
Right to work checks have been temporarily adjusted to make it easier for employers to carry them out. As of 30th March 2020 the following temporary changes have been made:
- checks can now be carried out over video calls;
- job applicants and existing workers can send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;
- employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepted documents.
Checks continue to be necessary and you must continue to check the prescribed documents listed in Home Office guidance. It remains an offence to knowingly employ anyone who does not have the right to work in the UK.
What changes have been made in relation to Statutory Sick Pay?
The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations (Northern Ireland) 2020 provide for categories of people to be treated as incapable of work for the purposes of statutory sick pay (SSP). The Regulations provide that where a person is isolating themselves from others in accordance with advice on Coronavirus, they are deemed to be incapable of work.
Can an employee qualify for SSP if they have to quarantine after returning to the UK from abroad?
No, unless if the employee also meets one of the four criteria noted above they will not qualify for SSP if they are unable to work during this time.
What should an employer do if an employee is self-isolating yet unable to work from home?
As the employee is unable to work, sick pay will be available for their self-isolating period. This is in place as the Government promotes that all individuals who are vulnerable or experiencing symptoms must self-isolate.
If an employee is at home and unwilling to work, what financial support is available?
If the employee is failing to follow guidance and isn’t cooperating, the disciplinary process may be required. Through this scenario, it is recommended to discuss this situation with HR or to take legal advice on how you deal with a disciplinary process.
Can we ask staff to take annual leave for a set period?
Employers can ask employees to agree to take a period of annual leave. If the employees do not agree, then you may give notice ordering them to take holiday on specified dates. There are no explicit requirements about the form that this notice must take, but this notice must be at least twice the length of the period of leave that the employee is being ordered to take.
When staff return to normal working patterns, they will have accrued a lot of annual leave.
Staff will continue to accrue annual leave as normal whilst under contract with an employer. Normally, employees are required to “use or lose” statutory annual leave (5.6 weeks) in the year in which it accrues, unless they are on a form of family leave or, in some circumstances, have been unable to take holidays due to sickness.
One option that may prevent a large amount of annual leave building up without being taken is to give notice to employees requiring them to take leave. However, to help with this issue the Government has amended the Working Time Regulations which apply to Northern Ireland to allow statutory holidays accrued this year to be carried forwards for up to two years where it was not reasonably practicable for staff to take leave due to the outbreak. The carry over amount will be limited to four weeks’ statutory leave. Statutory holidays above this amount (1.6 weeks, which for some staff will amount to designated bank holidays) should be taken this year. Contractual holidays over and above the 5.6 weeks statutory entitlement are a matter for agreement between employers and staff. Some employers already allow carry-over of leave from one year to the next. An employer could allow for more leave than usual to carry forward or require staff to take holidays this year (whether on certain dates or at the employee’s choice).
When would it not be reasonably practicable for staff to take leave due to the COVID-19 outbreak?
When considering whether it was not reasonably practicable for a worker to take leave as a result of the coronavirus, so that they may carry untaken holiday into future leave years, an employer should consider various factors, such as:
- whether the business has faced a significant increase in demand due to coronavirus that would reasonably require the worker to continue to be at work and cannot be met through alternative practical measures;
- the extent to which the business’ workforce is disrupted by the coronavirus and the practical options available to the business to provide temporary cover of essential activities;
- the health of the worker and how soon they need to take a period of rest and relaxation;
- the length of time remaining in the worker’s leave year, to enable the worker to take holiday at a later date within the leave year;
- the extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the coronavirus situation; and
- the ability of the remainder of the available workforce to provide cover for the worker going on leave.
The guidance has stated that furloughed employees should not need to carry over annual leave. In the case of furloughed employees where the employer cannot afford to make up the difference in holiday pay the guidance has confirmed that this would be a situation where it would not be reasonably practicable for the employee to have taken the holiday due to COVID-19.
Employers should do everything reasonably practicable to ensure that the worker is able to take as much of their leave as possible in the year to which it relates, and where leave is carried forward, it is best practice to give workers the opportunity to take holiday at the earliest practicable opportunity.
Can we pay employees in lieu of carried over holidays?
The normal rules on payment in lieu of holidays still applies to periods of leave that are carried over due to COVID-19 and so it is not possible generally to pay workers in lieu of holiday. However, if the worker leaves employment, the employer must pay the worker for any untaken leave. This will include the carried leave under the coronavirus exemption, along with any leave that the worker has accrued in the relevant leave year.
Now that the Scheme has ended we may be unable to continue to employ all of our staff. What can we do?
The normal rules in relation to redundancy apply. Larger employers should be mindful of collective consultation rules. If an employer is making 20 or more employees redundant within any 90-day period at a single establishment, a consultation should take place between the employer and the employee trade union or elected representative. This should take place at least 30 days before the redundancies are due to begin or 90 days if more than 100 employees are affected.
Can we require employees to undergo tests to check whether they have Covid-19 or symptoms of it?
You have a duty to ensure, so far as is reasonably practicable, the health, safety and welfare of all employees and therefore requesting that employees undergo a test for Covid-19 or a temperature check could be a reasonable management instruction that employees must follow. It would follow therefore that a refusal by an employee to comply could be a disciplinary matter. However, you will have to ensure that in doing this you are complying with your obligations under GDPR. Personal data that related to health is sensitive and classified as ‘special category data’. This means that you will have to be particularly careful when processing this type of information that the data is handled properly and that there is a legal basis for the processing. The Information Commissioner’s Office has released guidance to assist employers in identifying when this is appropriate. Transparency is vital and as an employer you should be clear, open and honest with employees about how and why you wish to do this. You should consider conducting a privacy impact assessment and providing privacy notices to staff. In the event that a member of staff has symptoms or has tested positive you should keep other members of staff informed but avoid naming individuals if possible and not provide more information than is necessary.
See also the following websites for up to date advice: -
Can we require employees to be vaccinated and/or only hire new employees that have had the vaccine?
Such an approach would be very risky. Currently the vaccine is not available to all age groups so such a policy could constitute age discrimination. There is also a risk that arguments of disability, sex or religious discrimination could be made. This may be the case if an individual was unable to take the vaccine due to a medical condition, pregnancy or religious/philosophical reasons. It is also unclear that refusal to vaccinate could constitute a potentially fair reason for dismissal when there is no legal obligation to be vaccinated. Ultimately these matters have not yet been tested in Tribunal. There may be valid reasons why such a policy might be reasonable in certain circumstances such as for care workers. Therefore, it is not a simple yes or no answer and employers should take legal advice before taking any steps.
See also the following websites for up to date advice: -