Last updated: 24 June 2020

This Q&A has been updated to reflect announcements on 22 and 23 June 2020 that ‘lockdown’, shielding, and social distancing rules will be relaxed.

For information on help for self-employed see: Covid-19: Help for the self-employed

See the following link for information on the Coronavirus: Job Retention Scheme

This Q&A looks at some of the most common questions employers have in relation to the coronavirus pandemic, ‘lockdown’ and the return to work. This document is intended as general guidance only and is updated regularly to take account of the most recent developments; a response to specific queries and comprehensive legal advice on any of the issues discussed in this note is available as required on request.

Please note that this is a dynamic situation and Government guidance should be regularly monitored. The latest official guidance can be found via the links below and should be checked regularly for updates.

Whilst the four nations of the UK have mostly been on the same page throughout the crisis they do now take a different approach on some key issues. As the majority of readers are likely to be based in England this Q&A will mainly focus on the law and guidance as it applies in England unless it states otherwise. If you have operations in the other nations of the UK we would suggest you first refer to the relevant guidance for that country. If you have workers that work in one nation but live in another you should seek legal advice in order to understand how any differences in the guidance will apply to those individuals. Freeths can provide employment advice in relation to all four nations of the UK.

Guidance specific to the four nations of the UK can be found at:

Content Section

Self-Employed Income Support Scheme

For more information visit  our Q&A on help for the self-employed.

Coronavirus Job Retention Scheme

The Coronavirus Job Retention Scheme allows all UK businesses, large or small, to apply to HMRC for a grant to cover most of the wages of employees who are ‘furloughed’. For more information see our Coronavirus: Job Retention Scheme.


Self-isolation, Social Distancing, and Shielding

1. When should an employee self-isolate?

The current guidance – which should be regularly monitored for any changes – is as follows:

Symptoms

  • As of 18 May 2020 the Government guidance says anyone with the following symptoms should stay at home and, if they live with others, everyone in the household should remain at home. The symptoms are:
    – flu-like symptoms, defined as a fever of 37.8c;
    – a persistent cough; and/or,
    – a loss of, or change in, normal taste or smell (which is a new symptom that has been added to the list on 18 May)

Self-isolation

  • Any person with symptoms and anyone they live with should immediately self-isolate in line with Government guidance below. However, following the implementation of the Government’s test and tracing regime on 28 May 2020, the individual should then book a test immediately at nhs.uk/coronavirus or by calling 119. If they subsequently test negative the individual and their household no longer need to self-isolate. However, if the individual tests positive they and the people they live with should complete the required period of self-isolation as set out below:
    – If a person lives alone they should remain at home for at least seven daysfrom when the symptoms first started.
    – For those who live with others the first person in the household to show symptoms should self-isolate for at least seven days. For anyone else in the household who shows symptoms they should also self-isolate for seven days from the day the symptoms start. If someone in the household does not show any symptoms they must self-isolate for 14 days from the date the first person in the household exhibited symptoms. If a member of the household shows symptoms they should remain at home for seven days, regardless of what day they are on in the original 14 day isolation period. The Government have produced a chart to highlight this guidance which can be found here.
    – If a person with symptoms is feeling better and does not have a temperature at the end of the above periods they can leave their home. However, if they still have a temperature the guidance is that they should continue to self-isolate until they no longer have a temperature.
    The latest self-isolation guidance can be found here:
    For employers in England
    For employers in Wales
    For employers in Scotland
    For employers in Northern Ireland

Contact tracing

  • The contact tracing regime now requires individuals who test positive to share details of people with whom they have had close, recent contact. Individuals who are then contacted to be told that they have had close contact with someone who has tested positive, will be required to self-isolate for 14 days from the last contact with the infected person. Their household does not need to self-isolate. If that person subsequently displays symptoms of coronavirus they and their household will be required to follow the self-isolation and testing steps set out above. For more information on contact tracing see here.

Foreign travel

The current quarantine rules following foreign travel are to be reviewed shortly and it is anticipated that they may be relaxed in relation to travel from certain countries. We will update this Q&A if/when the rules are amended.

Clinically vulnerable

  • Over 70s and those in vulnerable groups are classed as ‘clinically vulnerable’ and are advised to follow the general advice on staying at home and socially distancing but to take ‘particular care to minimise contact with others outside your household’. Latest Government guidance on Staying at home and away from others (socially distancing) can be found here.

Social distancing

  • ’On 23 March 2020 the Prime Minister effectively announced a ‘lockdown’, which placed severe restrictions on the ability of people to leave their homes.

These rules have subsequently been relaxed and will continue to be relaxed going forward providing infection rates to not go back up. Current social distancing guidance has been published that significantly relaxed the original ‘lockdown’ restrictions. The current guidance on Staying Alert and Safe (Social Distancing) can be found here. The latest announcement about relaxing the rules came on 23 June. Of particular note:

  • From the 4 July the 2m rule will be relaxed slightly. The Government’s guidance is that people should still remain 2m apart but where this is not possible a 1m plus rule will be introduced.
  • From 4 July providing they are ‘COVID Secure’ businesses and venues, including restaurants, pubs, cinemas, visitor attractions, hotels, and campsites will be able to open. Other public places, such as libraries, community centres, places of worship, outdoor playgrounds and outdoor gyms will be able to open. These venues join non-essential retail businesses, which have been able to open since 15 June (providing they are ‘COVID Secure’).
  • Certain businesses and venues will remain closed for the time being. These include nightclubs; casinos; bowling alleys and indoor skating rinks; indoor play areas including soft-play; spas; nail bars, beauty salons and tanning salons; massage, tattoo and piercing parlours; indoor fitness and dance studios, and indoor gyms and sports venues/facilities; swimming pools and water parks; exhibition or conference centres – where they are to be used for exhibitions or conferences.
  • Guidance on Staying Alert and Safe (Social Distancing) from 4 July 2020 can be found here https://www.gov.uk/government/publications/staying-alert-and-safe-social-distancing/staying-alert-and-safe-social-distancing-after-4-july

COVID Secure workplace

On 11 May the Government replaced its ‘staying at home’ guidance with ‘Staying alert and safe (social distancing)https://www.gov.uk/government/publications/staying-alert-and-safe-social-distancing

On 11 May the Government also published specific ‘Working Safely During Coronavirus’ guides https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19 , which employers should look to follow in order to make their workplaces ‘COVID Secure’
For our initial analysis of this guidance see Return to Business as (Un)usual – Road Maps to the Restart

Shielding

  • On 22 June it was announced that ‘shielding’ guidance will be relaxed from 6 July and shielding will be paused from 1 August (providing infection rates continue to go down). The latest guidance can be found here.

In the current situation it is advisable for an employer to issue clear instructions to employees as to what is expected of them if they fall into the above groups.

1a. Can an employer start bringing everyone back into the workplace?

The Government guidance is and, for the time being, remains that people should work from home if they can. However, if they cannot work from home they should go into work providing the workplace is ‘COVID Secure’.

1b. Does this apply to those employees who are currently ‘shielding’?

The current shielding guidance advises those who are shielding to remain indoors except in limited circumstances. Essentially this will prevent most people who are shielding from attending the workplace (if they choose to follow the guidance). However, from 1 August 2020 the plan is to pause shielding and from that date those who are shielding will be encouraged to go into work if they cannot work from home, providing the workplace is ‘COVID Secure’.

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2. Can an employer require employees who have been to certain geographic regions to inform the employer of this?

From 8 June the Government has announced that those coming to the UK from another country (except the Republic of Ireland, Channel Islands or Isle of Man) will need to quarantine for 14 days upon entry into the country. Although there are exemptions to this rule, see Question 1.

As with all self-isolation and social distancing guidance an employer should make it clear to employees that it expects them to follow such guidance. An employee’s failure to quarantine could entitle an employer to send them home or even take disciplinary action.

Whilst it is generally not considered reasonable for an employer to seek to restrict an employee’s personal travel, the quarantine rules will impact upon an employer. It would therefore be reasonable for an employer to ask an employee to notify it if they are travelling abroad and will need to quarantine on their return. We would advise an employer to take specific advice in relation to how best to handle issues like this, there is not necessary one easy answer that would effectively work in every scenario.

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3. Does the employee have the right to be paid if they go to a foreign country, against the employer’s advice, and then are subsequently required to quarantine?

If the employee is not self-isolating or shielding on Government guidance see questions 7 and 10. At the moment it is not clear if an employee who quarantines after travelling abroad is entitled to SSP. Until the relevant regulations are amended an employer may wish to inform employees who are travelling abroad that they may not be entitled to any pay during their quarantine period (if they cannot otherwise work from home).

As this is a unique situation and the law is not yet clear on this point, we would suggest that employers seek legal advice before implementing any specific rules in relation to employees that are in quarantine.

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4. Can an employer place a restriction on an employee’s personal travel?

See Question 2 and 3.

The quarantine rules have created an unusual situation. Usually it would be doubtful whether an employer would have the ability to enforce restrictions on an employee’s personal travel (although it could advise against it). However, the quarantine rules have created a situation when some employees may be taking action (i.e. travelling abroad) that could lead to them being unable to perform their contractual duties on their return. This situation does entitle an employer to take an interest in the employee’s personal travel but it is still doubtful to what extent it would be reasonable to impose a blanket rule against foreign travel. There are also problems with a blanket rule because there will be some employees who can work from home during quarantine; there is also a risk that a blanket policy could create a risk of indirect discrimination if, for example, it likely to impact foreign nationals more than UK citizens.

As this is a unique situation and the law is not yet clear on this point, we would suggest that employers seek legal advice before implementing any specific rules in relation to employees that are in quarantine.

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5. Is the employer entitled to send an employee home from work to self-isolate?

If the employee is not self-isolating or shielding on Government guidance see questions 7 and 10.

However, if an employee cannot work from home and is otherwise required to attend work the employer should carefully consider why it wishes to send that employee home. Is there good reason for doing so? Good reason would usually mean that the employee is exhibiting symptoms, falls within a category that is advised to self-isolate, is considered high risk, or who it would otherwise be appropriate to send home in view of the Government’s latest instructions.

If the employee is exhibiting symptoms, is required to self-isolate, or is shielding then the employer can treat the employee as being on sick leave and pay them SSP. For those shielding the employer could, as an alternative, consider furloughing the employee.

If the employee cannot work from home, and is not exhibiting symptoms or within a self-isolation or shielding category the employer should question why it feels the need to send such an employee home. If the employee does not fall within one of the aforementioned categories then it is likely – subject to any contractual provision to the contrary – that the employee will be entitled to full pay. If the employer still considers it appropriate to send an employee home but it cannot afford to pay the employee in full during such absence it could consider furloughing the employee or lay-off (see question 18).

The employer should also check the employee’s contract of employment and take advice if there is anything in the contract that may limit its ability to send an employee home in these circumstances.

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6. Do those employees in the vulnerable category, for example the over 70s, need to stay at home?

Over 70s and others considered clinically vulnerable are advised to take particular care to stay away from others (see question 1). However, there is no strict requirement that such individuals not come in to work (when they cannot otherwise work from home).

An employer should always have regard to its general obligation to protect the health and safety of its employees. Current Government guidance is that over 70s should follow social distancing guidance and as such an employer should have regard to this guidance in relation to its employees who are over 70 (or in other vulnerable groups). This may mean that an employer needs to make changes to its usual working practices, for example, by requiring employees who are over 70 to work from home. Employers should carry out regular risk assessments in relation to all its employees during the current crisis, having regard to latest guidance, and take appropriate action in order to protect its employees and comply with its obligations.

An employer should seek legal advice if it has a particular concern with employees who are considered vulnerable.

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7. What if an employee is not required to self-isolate but does not wish to attend work because they are anxious about the coronavirus?

Government guidance produced on 11 May sets out guidance employers should follow to help get the workplace back to work. Part of this includes communicating with employees on the safety measures taken to protect against coronavirus and how safety measures are being implemented.

If the employee does not wish to attend work but is not within one of the categories that should self-isolate, the employer should listen to the employee’s concerns and latest Government guidance before deciding on the most appropriate response. As already mentioned, wherever possible all employees should now be working from home if they can, although if they cannot they are actively encouraged to go in to work.

It may be that the employee is within a high risk group and/or genuinely anxious about catching the virus. The employer should discuss the employee’s concerns with the employee and identify whether there are ways of overcoming those concerns. For example, is it possible for the employee to work from home? Could the employee take annual leave?

If an employee has an underlying health condition that could make the employee more susceptible to coronavirus this could also be a disability in law and therefore care should be taken to ensure that if possible reasonable adjustments are made and the employee is not treated unfavourably due to something arising from a disability.

If an employee does not have a good reason for not attending work – and there are no reasonable alternatives available (which may include a further period of furlough) – the employer could treat it as an unauthorised absence in the usual way, meaning the employee may not be entitled to be paid.

In the current circumstances an employer would be expected to take a more flexible approach than it would usually do if an employee refused to attend work.

7a. Is it true that an employer cannot subject an employee to any form of detriment if they refuse to come in to work because they are concerned about coronavirus?

We have been alerted to social media posts that suggest an employee can refuse to come into work (if they have concerns around coronavirus) and rely upon sections 44 and/or 100 of the Employment Rights Act 1996 (ERA). The posts of suggested that an employer could not take any action against an employee by virtue of these sections.

In simple terms the sections mentioned above provide employees with protection from being subject to a detriment or dismissal as a result of raising certain health and safety concerns. One concern that could be relevant to the current situation is when an employee refuses to attend or leaves work because they have a reasonable belief that there is a serious and imminent danger, which the employee could not reasonably be expected to avert.

The protection afforded to employees in the above circumstances is not as strong or clear cut as the social media posts circulated seem to suggest. However, the relevant sections do provide protection that may be relevant in certain circumstances.

To minimise the risk of an employee being able to rely upon sections 44 and 100 of the ERA the employer should comply with its general health and safety obligations, make the workplace ‘COVID Secure’, and take on board any concerns raised by the employees. If in doubt the employer should seek legal advice. For more information on dealing with a situation such as this, see questions 1 (for information on making the workplace ‘COVID Secure’), question 7  (which looks at when employees do not want to come in to work) and question 24 (which looks at some of the H&S issues).

7b. Can an employer furlough a worker who is shielding?

Yes.

Although, it should also be noted that those employees who are shielding are now deemed to be sick under SSP legislation and are entitled to SSP. Although as yet this has not been extended to cover those who live with an individual who is shielding.

An employee who is shielding under Government guidance should not really be coming in to work. It is arguable that those they live with should not really be coming in to work either, although Government guidance does not say this. Therefore, if such individuals cannot work from home an employer may wish to consider furloughing them under the Coronavirus Job Retention Scheme.

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Employees Caring for Others

8. What about employees who are absent because they need to care for a family member or have childcare problems now that schools are to close?

Employees with responsibility for caring for others, such as those with childcare responsibility, could be furloughed under the Coronavirus Job Retention Scheme.

Employees in the situation of caring for a family member could – if they cannot work from home – rely upon dependents leave, take annual leave if possible, or agree an alternative arrangement with the employer. Employers should consider waiving or relaxing their usual requirement for employees to give notice to take annual leave.

Dependant leave allows an employee to take reasonable time off when it is necessary to provide assistance to an ill dependent, make arrangement for the provision of care for dependants, and when dealing with unexpected disruption of care arrangements. This potentially covers, providing such time off was “necessary”, closure of a child’s school or having to care for a dependant who falls ill.  However, there is no right to be paid for dependant leave.

On 18 March 2020 the Government announced that all schools in the UK will close from 20 March 2020. However, schools are being asked to continue to provide care for a limited number of children – children who are vulnerable and children whose parents are critical to the Covid-19 response (‘key workers’). The Government are looking to expand the number of children of key workers and vulnerable children who go to school.

On 19 March 2020 the Government published guidance as to what it meant by ‘key workers’. If possible the guidance is that children should still be cared for at home but if that is not possible those working in the following sectors may be key workers – health and social care, education and childcare, key public services, local and national government, food and other necessary goods, public safety and national security, transport, utilities, communication and financial services. As can be seen this includes a potentially wide group of workers. If a worker believes they fall within one of these categories the guidance advises them to check this with their employer. The link to the guidance is here.

On 24 May the Government announced its intention for the phased return of schools. Its current plan is that from 1 June early years, reception, year 1 and year 6 will start returning to school. From 15 June up to a quarter of year 10 and 12 will be allowed “some contact” to prepare for exams.

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Paying Employees

9. Does an employer need to pay an employee that self-isolates or is shielding because they are ill or following medical advice/Government guidance?

The employee will be entitled to SSP and may be entitled to contractual sick pay depending on the terms of their contract.

An employee who meets the relevant earnings requirements will qualify for SSP if they are absent from work due to incapacity. Employees that are not actually ill but shielding or self-isolating in line with Government guidance will be deemed to be ill for the purpose of SSP.

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10. Does an employer need to pay an employee that self-isolates in other circumstances?

If an employee who is not ill or following official guidance chooses to self-isolate they will not – in the first instance – be entitled to be paid. However, as mentioned in question 7, the employer should discuss with the employee the reasons for self-isolating as there may be genuine concerns on the employee’s part.

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11. Has the Government introduced a new regulation that entitles employees to SSP from day one of their sickness absence?

Yes. The regulations permit payment of SSP from day one of an employee’s absence from work (rather than day four), where the employee is incapable, or deemed to be incapable, of doing work by reason of coronavirus. This applies retrospectively for absence on or after 13 March 2020.

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12. Is it right that employers can reclaim the cost of SSP from the Government?

On 11 March 2020 the Chancellor of the Exchequer announced that employers with fewer than 250 employees will be able to recover the cost of SSP for coronavirus related absence. The size of the employer will be determined as at 28 February 2020. Employers will be able to reclaim up to two weeks SSP for eligible employees off work for reasons related to the coronavirus. On 3 April the Government produced guidance for employers who qualify to reclaim SSP.

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13. Is an employee still required to provide a fit note to evidence their absence?

An employee can self-certify for the first 7 days of their absence. Thereafter it is for the employer to decide what evidence they require from the employee about their continued absence. The Government has launched a temporary alternative to a fit note, which is to be called an isolation note. The isolation note can be obtained online through NHS Website, NHS111 Online or the NHS App. It will be available to those who have been advised to self-isolate in the Government guidance.

Notwithstanding this an employer is advised to take a common sense approach in line with Government guidance.

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Working From Home

14. Can an employee who self-isolates (or is sent home by the employer) be required to work from home?

This will depend on whether the employee is exhibiting symptoms and unable to work. If this is the case they are sick and should not usually be working. This would be treated as sick leave.

If the employee is not exhibiting symptoms and/or still able to work then it may be possible to require the employee to work from home if the employee is able to work from home (in practice and contractually). Although it should be noted that for the purpose of SSP regulations, such employees are deemed to be sick if self-isolating in line with the latest official guidance.

Even if an employee’s contract of employment does not allow the employer to require the employee to work from home it is possible for employers to agree this directly with the employee. Current Government guidance is that all employees (unless advised otherwise) should be working from home unless it is not possible to perform their duties from home, in which case they are actively encouraged to go to work.

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15. Does an employer need to carry out a risk assessment before allowing employees to work from home and/or should it have a home working policy?

Employers are required to protect the health, safety and welfare of homeworkers who are employees. If you employ homeworkers you should carry out a risk assessment of the work activities and take appropriate measures to reduce any associated risks. Health and Safety Executive guidance can be found here.

Freeths Compliance & Regulatory team have also produced an article covering the latest HSE guidance on homeworking and other coronavirus related matters which can be found here.

However, in practice, particularly if employees are required to work from home at short notice, it should suffice if an employer takes a common sense approach. Most employees working from home will be carrying out low risk tasks. If the employee is carrying out more high risk activity, or the employer provides the employee with equipment, particular care should be taken. Employers should give individual managers guidance on assessing risk levels for their respective team members.

A Homeworking Policy or guidance for employees on working from home is a good idea if you do not have one already. It will ensure both employer and employee understand what is required of them. Freeths’ employment team can help you draft a policy if required.

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Closing the Workplace

16. Does an employer have to close the workplace if someone with coronavirus comes in to the workplace?

The current official advice is that a workplace does not need to close.

However, employers should be aware of the risk of an outbreak amongst the workforce or employees being required to self-isolate