Employment Law

Employment Law and Covid-19

In this section, you'll find practical advice and guidelines that should be helpful to you as a tourism business employing staff.

What happens about pay in the following circumstances?

The employee/worker is entitled to sick leave, to Statutory Sick Pay and contractually agreed sick pay if any. 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. That guidance is published in digital form only:

www.publichealth.hscni.net/news/covid-19-coronavirus.

Employees/workers are entitled to self-certify, and during this emergency, employers are not able to insist on a fit-note from a doctor after 7 days. Employers of fewer than 250 across all PAYE payroll schemes created on or before 28 February 2020 are now able to reclaim the statutory sick pay element from day one for at least 14 days. The online service to reclaim SSP is now available here.

The repayment will cover up to 2 weeks starting from the first qualifying day of sickness, if an employee is unable to work because they either:

have coronavirus (COVID-19) symptoms; or
are self-isolating because someone they live with has symptoms; or
are self-isolating because they’ve been notified by the NHS or public health bodies that they’ve come into contact with someone with coronavirus;
are shielding and have a letter from the NHS or a GP telling them to stay at home for at least 12 weeks; or
have been notified by the NHS to self-isolate before surgery for up to 14 days.

You will be able to from the first qualifying day your employee is off work if the period of sickness started on or after:

13 March 2020 - if your employee had coronavirus or the symptoms or is self-isolating because someone they live with has symptoms
16 April 2020 - if your employee was shielding because of coronavirus
28 May 2020 - if your employee has been notified by the NHS or public health bodies that they’ve come into contact with someone with coronavirus
26 August 2020 – if your employee has been notified by the NHS to self-isolate before surgery.

Employers need to be clear whether staff are off sick, and unfit for work, whether the employee/worker is unable to work from home and is self-isolating, or whether the employee/worker is self-isolating but is able to work from home. In the latter case where they are fit to work the employee/worker will normally be entitled to full pay for work done. Employers should also consider deeming employees to be furloughed employees as outlined at 2 below. However, employees cannot be furloughed at the same time as receiving SSP. You must have paid your employees’ sick pay before you claim it back.

The Government is taking powers to enforce quarantine. Clearly if a worker is legally required not to come in, the employer cannot insist on attendance or work, unless work from home is possible. In accordance with the SSP Regulations mentioned above at 1, SSP is payable in these circumstances. However, employees/workers may not be entitled to any contractual sick pay as they may not be sick. Therefore, in this case it may be more appropriate for the employer to consider deeming employees to be furloughed employees as outlined at 2 below.

In this situation then provided the worker qualifies they will be entitled to SSP, and any contractual sick pay. Many sick pay policies will include a requirement for the employee to obtain a fit note from a doctor. Employers must be sensible in relation to the need for medical evidence for a period of absence where an employee is advised to self-isolate due to suspected COVID-19. As such, employers should make exceptions to their usual sick pay policies. Alternatively, employers should also consider deeming employees to be furloughed employees as outlined at 2 below.

There is a general duty to carry out a risk assessment for pregnant employees/workers. Clearly this assessment should be updated in light of Coronavirus and government advice should be followed. Current advice is that pregnant employees should so far as possible practice social distancing, working from home if practicable. In this situation the pregnant employee will be entitled to SSP and any contractual sick pay.

Where there is an additional risk at work due to coronavirus on top of that outside work, and where it is not possible to avoid exposure to risks at work, then pregnant employees/workers have a right to be offered suitable alternative employment (i.e. work that could be done from home). Another option open to employers would be to consider whether the employee could be designated a furloughed employee as outlined at 2 below. The guidance has confirmed that employers can claim through this scheme for enhanced contractual maternity pay and other forms of paid parental leave.

Some people may be worried about catching Coronavirus and therefore be unwilling to come into work. If this is the case, you should listen carefully to the concerns of your staff member and, if possible, offer homeworking. The Government is advising all employers to encourage employees to work from home where possible. If employees can work from home, then that should be accommodated without question.

If you cannot accommodate homeworking, then your employees/workers can also request time off as holiday or unpaid leave but there is no obligation on employers to agree to this. If an employee/worker refuses to attend work, you are entitled to take disciplinary action. However, dismissal is likely to be outside the range of reasonable responses and therefore unfair, at least in the current circumstances. In addition, much may depend on the particular circumstances-for example if the employee has a pre-existing medical condition that would put them at particular risk which might also amount to a disability requiring reasonable adjustments. If the employee is not self-isolating for a reason as provided in government guidance but just does not want to come in, then they may not be entitled to pay or sick pay. However, the employer should give sympathetic consideration to the situation. It may be possible to use annual leave, or in some circumstances if qualifying, unpaid parental leave. A dismissal for refusal to come into work in current circumstances could well lead to a successful claim for unfair dismissal. Employers must act reasonably.

There have been periods of time during the pandemic when schools have been closed. In line with Government advice, all businesses and workplaces should encourage employees to work at home where possible. Where employees are able to work from home and have childcare responsibilities they may very well need some flexibility. They may not be able to work a traditional 9 -5 working pattern. Keep lines of communication open with employees in that situation and act reasonably. Guidance has also confirmed that employers may furlough employees (as outlined at 2 below) where they are unable to work because they have caring responsibilities (which includes care for children) as a result of the COVID-19 outbreak and so this should be considered.

Many employees in the hospitality sector have been laid off or put on short time working. What is the position in relation to pay in light of the Government's announcement in relation to the Job Retention Scheme?

The Government announced the Coronavirus Job Retention Scheme (“the Scheme”) on Friday 20 March 2020. Further guidance in relation to the Scheme was last published on 1 April 2021 and is available here. The Scheme was launched on 20 April 2020 and can be accessed https://www.access.service.gov.uk/login/signin/creds.

The Scheme was due to close at the end of October 2020 and be replaced by the Job Support Scheme. However, the Scheme has been extended until 30 September 2021 and the Job Support Scheme and Job Retention Bonus are now on hold. For more details on this scheme please see our JRS FAQ.

What do we do if we have to make redundancies?

Redundancies may become necessary however in light of the Scheme outlined at 2 above it makes more sense in the short term for employees to be designated as “furloughed” employees so that the employers can avail of the Job Retention Scheme and keep employees on the payroll with an income for as long as possible.

If redundancy does become necessary, then good practice should be followed to avoid unfair dismissal claims. It is anticipated that employers will be able to rely on these exceptional circumstances to avoid an unfair selection for redundancy claim however there are no guarantees. It is important to follow the statutory procedures and good practice.

Employers should consult with employee representatives where appropriate, particularly if involving 20 or more redundancies, to communicate with staff, send the appropriate letters, offer meetings (not face to face - perhaps over the telephone/skype etc.) and then give notice. See LRA Guidance on handling redundancies: -

https://www.lra.org.uk/resources/advisory-guide/advice-handling-redundancy

HMRC has confirmed that you can continue to claim for a furloughed employee who is serving a statutory or contractual notice period, however grants cannot be used to substitute redundancy payments.

The Employment Rights (Northern Ireland) Order 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations (Northern Ireland) 2020 came into force on 14 August 2020 bringing Northern Ireland in line with mainland Great Britain on the calculation of a week’s pay in the furlough context. This confirms, amongst other things, that a week’s pay for the purposes of redundancy pay and notice pay must be based on the employee’s normal wages, rather than a reduced furlough rate. While it was previously possible to furlough an employee during their notice period and claim part of this pay through the furlough scheme since 1 December this is no longer allowed.

Can we amend the contracts of employment of our staff?

The terms of the individual contract should be reviewed as this may provide a process by which variations may be achieved.

Where substantial variations are being proposed to hours and or pay then staff would need to agree. Therefore, staff should be written to and their written consent to the variation should be sought. If consent is not forthcoming, then it may be possible to terminate the contract and re-engage employees under new contracts depending upon the variation involved. However, this may in reality constitute a potential redundancy situation and the employer would be required to pay notice pay and redundancy pay.

Do we have to pay staff if the business has to close?

See 2 above. If closure can be averted in the short term, then employers can avail of the Job Retention Scheme. If you decide to close permanently then you are required to comply with the redundancy provisions for staff. This would include notice pay and a redundancy payment. In many instances the employer may not be able to pay this and staff and employers will be seeking Government assistance.

How do we reduce the risk to our staff?

Government advice is that all employers should encourage homeworking where possible. Where feasible, businesses should shut offices and enable homeworking wherever possible. If you do require employees to attend the workplace then you should circulate an email/guidance requiring staff to be extra-vigilant with:

Washing their hands and using a sanitiser gel if soap and water are not available;
Using personal protective equipment where appropriate;
Using and disposing of tissues to catch a cough or sneeze;
Avoid touching eyes, nose and mouth with unwashed hands; and
Avoid close contact with anyone, where possible.

If they have the space, you should distance staff from each other as much as possible.

You should keep the situation under review and act in line with Government guidance.

Should we restrict staff from travelling for work purposes?

Yes. The Foreign and Commonwealth Office has now advised generally against all non-essential worldwide travel, both to restrict the spread of Coronavirus, and also because of practical concerns about being able to return home, being in quarantine or self-isolation.
The EU is currently drawing up plans. The Irish Government has made clear that it will not be shutting the border with Northern Ireland at present.

Travelers coming back into Northern Ireland from abroad may need to self-isolate for 10 days. If staff are unable to work from home this will make it impossible for them to work.

In order to try and restrict the spread of the virus all travel, even within Northern Ireland must be kept to a minimum. Where possible you should arrange alternatives to meetings, such as telephone, video conference or similar calls.

In the current circumstances with the evident potential extra risk to health an employer should not insist on an employee/worker travelling for business purposes, especially to places known to have a higher risk of infection. Insisting, or even if the employee/worker agrees, may give rise to potential claims later.

Can we prevent staff from travelling for personal reasons?

In the absence of any contractual right it is unlikely that you can prohibit an employee/worker from deciding to travel - for example to look after a sick relative. You can point out that this may lead to a requirement that the staff member self-isolates on return.

Can we require staff to tell us if they are in a category of worker who should stay at home?

In light of updated Government advice, where possible employers should allow all employees to work from home. Employers may ask their staff about their health where this is necessary not only to protect the employee/worker’s health but also the health and safety of other staff. Therefore, it would be reasonable in our view to ask staff if they are in a category where the government has recommended that they should stay at home.

Can we ask people to stay at home and not come to work?

Much will depend upon the reason for the request to stay at home. You may ask people not to come in to work and you should indicate to them what will happen to their pay in these circumstances (see below). The first step will be to look at whether they can work from home in which case they should be paid as normal. If not or if there is no work for them to do employers should consider availing of the Scheme outlined at 2 above..

If you send staff home with no pay and without agreement of the contractual right to do so then you may be vulnerable to claims for unlawful deductions from wages, breach of contract and/or unfair constructive dismissal. However, in light of the Scheme now available there is no need to now do this.

Can we ask people to work from home and what issues does that raise?

Government advice is that all employers should allow employees to work from home where possible. The individual contract may provide for working from home and if they can carry out work at home most workers will agree to do this in the current circumstances. In the absence of a contractual right or agreement, if a staff member refuses to work from home that may be a failure to comply with a reasonable work instruction and could lead to disciplinary action.

In the current circumstances however it would be highly unlikely that employees would resist the opportunity to work from home. A homeworking policy is advisable if you do not have one.

The employee/worker should be asked to confirm if they have any health and safety concerns about working from home and a discussion should occur to seek to resolve any issues if feasible.

What assistance is available for the self employed?

The Self Employment Income Support Scheme (“SEISS”) has been introduced by the Government to help self employed workers or members of a partnership who have lost income due to coronavirus.

The Chancellor has announced a number of extensions to SEISS. The extensions will provide further grants and will last to September 2021.

The fourth grant will cover a three-month period from 1 February 2021 until 30 April 2021. This will be set at 80% of 3 months’ average trading profits, paid out in a single instalment, capped at £7,500. The fourth grant will take into account 2019 to 2020 tax returns and will be open to those who became self-employed in tax year 2019 to 2020. The rest of the eligibility criteria remain unchanged.

Your eligibility for the scheme will now be based on your submitted 2019 to 2020 tax return. This may also affect the amount of the fourth grant which could be higher or lower than previous grants you may have received.

To be eligible for the fourth grant you must be a self-employed individual or a member of a partnership.

To work out your eligibility HMRC will first look at your 2019 to 2020 Self Assessment tax return. Your trading profits must be no more than £50,000 and at least equal to your non-trading income.

If you’re not eligible based on your 2019 to 2020 Self Assessment tax return, HMRC will then look at the tax years 2016 to 2017, 2017 to 2018, 2018 to 2019 and 2019 to 2020.

You must also have traded in both tax years:

2019 to 2020 and submitted your tax return by 2 March 2021
2020 to 2021

You must either:

be currently trading but are impacted by reduced demand due to coronavirus
have been trading but are temporarily unable to do so due to coronavirus

You must also declare that:

you intend to continue to trade
you reasonably believe there will be a significant reduction in your trading profits due to reduced business activity, capacity, demand or inability to trade due to coronavirus
the online claims service for the fourth grant will be available from late April 2021 until 31 May 2021.

You can now claim using the online portal, you will need your:

Self-Assessment Unique Taxpayer Reference (UTR);
National Insurance Number;
Government Gateway user ID and passport; and
UK bank details including account number, sort code, name on the account and address linked to the account.

HMRC will check claims and take appropriate action to withhold or recover payments for claims found to be dishonest or inaccurate. If you know you’re not eligible for the grant and do not tell HMRC, you may also have to pay a penalty.

You must keep any evidence that your business has had reduced activity, capacity or demand due to coronavirus at the time you made your claim such as:

business accounts showing reduction in activity compared to previous years
records of reduced or cancelled contracts or appointments
a record of dates where you had reduced demand or capacity due to government restrictions

You must keep evidence if your business has been unable to trade due to coronavirus such as:

a record of dates where you had to close due to government restrictions
NHS Test and Trace communications - if you’ve been instructed to self-isolate in-line with NHS guidelines and are unable to work from home
a letter or email from the NHS asking you to shield
test results if you’ve been diagnosed with coronavirus
letters or emails from your child’s school with information on closures or reduced hours

The UK government has also announced that there will be a fifth and final grant covering May to September.

You will be able to claim from late July if you are eligible for the fifth grant.

The amount of the fifth grant will be determined by how much your turnover has been reduced in the year April 2020 to April 2021.

The fifth grant will be worth:

80% of 3 months’ average trading profits, capped at £7,500, for those with a turnover reduction of 30% or more
30% of 3 months’ average trading profits, capped at £2,850, for those with a turnover reduction of less than 30%

Further details will be provided on the fifth grant in due course.

See also the following websites for up to date advice:

https://www.lra.org.uk/coronavirus-advice-employers-and-employees
www.publichealth.hscni.net/news/covid-19-coronavirus.

Contents

Contents

Employment Law and Covid-19

What happens about pay in the following circumstances?

a) Where the staff member is diagnosed with Coronavirus

b) Where the government has advised/told a category of worker not to come in.

c) Where a doctor has advised the employee that they should not be at work.

d) Where an employee is pregnant.

e) Where the employee/worker is scared, or is reluctant to come into work for reasons to do with their own health.

f) Where schools close and the person needs to care for their children

Many employees in the hospitality sector have been laid off or put on short time working. What is the position in relation to pay in light of the Government's announcement in relation to the Job Retention Scheme?

What do we do if we have to make redundancies?

Can we amend the contracts of employment of our staff?

Do we have to pay staff if the business has to close?

How do we reduce the risk to our staff?

Should we restrict staff from travelling for work purposes?

Can we prevent staff from travelling for personal reasons?

Can we require staff to tell us if they are in a category of worker who should stay at home?

Can we ask people to stay at home and not come to work?

Can we ask people to work from home and what issues does that raise?

What assistance is available for the self employed?

Operational Performance

Scams and Fraudulent Activity

Contents

Contents

Employment Law and Covid-19

What happens about pay in the following circumstances?

a) Where the staff member is diagnosed with Coronavirus

b) Where the government has advised/told a category of worker not to come in.

c) Where a doctor has advised the employee that they should not be at work.

d) Where an employee is pregnant.

e) Where the employee/worker is scared, or is reluctant to come into work for reasons to do with their own health.

f) Where schools close and the person needs to care for their children

Many employees in the hospitality sector have been laid off or put on short time working. What is the position in relation to pay in light of the Government's announcement in relation to the Job Retention Scheme?

What do we do if we have to make redundancies?

Can we amend the contracts of employment of our staff?

Do we have to pay staff if the business has to close?

How do we reduce the risk to our staff?

Should we restrict staff from travelling for work purposes?

Can we prevent staff from travelling for personal reasons?

Can we require staff to tell us if they are in a category of worker who should stay at home?

Can we ask people to stay at home and not come to work?

Can we ask people to work from home and what issues does that raise?

What assistance is available for the self employed?

Operational Performance

Scams and Fraudulent Activity

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