Last reviewed: 26 May 2020

This Q&A looks at some of the most common questions employers have in relation to the coronavirus pandemic and subsequent ‘lockdown’. 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 there is now an indication that the three devolved nations are beginning to take a different approach to England. 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. 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.

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

Content Section

Self-Employed Income Support Scheme

On 26 March 2020 the Chancellor of the Exchequer announced the Self-Employed Income Support Scheme, which is intended to provide support for the self-employed.

The Scheme will provide the self-employed with a taxable grant worth 80% of average monthly profits over the last 3 years, up to a cap of £2,500 per month. However, they will be able to continue working whilst claiming support under the Scheme.

The Scheme is only open to those who make the majority of their income from self-employment and with trading profits of up to £50,000 per year.

The Scheme will run for 3 months initially but will be extended if necessary. The Chancellor said the aim is get it up and running by June.

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

Coronavirus Job Retention Scheme

On 20th March 2020 the Chancellor of the Exchequer announced the Coronavirus Job Retention Scheme (the Scheme). The Scheme will allow 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:

  • 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)
    The current guidance on self-isolation is as follows:
    – If a person lives alone they should remain at home for at least seven days from 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
  • At the moment anyone returning from a foreign country should follow the same guidance that applies to everyone else and is set out in this answer. However, from 8 June 2020, anyone travelling to the UK will need to (1) provide travel and contact details when they travel to the UK; and, (2) not leave the place they are staying for the first 14 days except in limited situations. Further information about travel can be found here.
  • 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.
  • On 23 March 2020 the Prime Minister addressed the nation in a televised broadcast to announce what is being called a “lockdown” (although the Government would not call it that). However, the Government has gradually started to implement and announce a relaxation of the ‘lockdown’. On 11 May the Government replaced its ‘staying at home’ guidance with ‘Staying alert and safe (social distancing)
    The key changes in place are:

    • Anyone who cannot work from home is ‘actively encouraged’ to go to work. Although wherever possible they should not do so by public transport. Strictly speaking this is not a change in the technical guidance which has been in place since 23 March, more that the emphasis has changed.
    • There has not been a change to the businesses that must remain closed with the exception of garden centres and outdoor sports facilities that are now permitted to open subject to following social distancing. The Government have produced detailed guidance about which businesses should close here.
    •  ‘staying at home’
    • On 11 May the Government also published workplace guides to assist workplaces manage coronavirus.
      – ‘Our plan to Rebuild’ which sets out the Government plan to return to as close to normal as possible.
      – The eight ‘Working Safely During Coronavirus’ guides
      For our analysis of this guidance see Return to Business as (Un)usual – Road Maps to the Restart
    • From 1 June 2020 outdoor markets and car showrooms will be able to open provided they can show they are ‘COVID Secure’. From 15 June the plan is that non-essential retailers will also be able to open.
  • Those showing symptoms or living with others who have shown symptoms should continue to follow the self-isolation advice above.
  • The Government have introduced a further category of individual who are advised to follow the “shielding” guidance. The latest guidance can be found here. Those advised to follow the shielding guidance are those who are considered extremely vulnerable to serious illness from coronavirus. These individuals will receive a letter from the Government and are advised to remain at home for a period of 12 weeks from receiving the letter. They are also advised to strictly follow the social distancing guidance. Those they live with do not need to follow the shielding guidance but for practical reasons many may choose to do so.

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.

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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.

See question 3, the Government is no longer specifically advising self-isolation after visiting specified countries. However, effective quarantine of arrivals in to the UK will essentially make most foreign travel impractical even if it is otherwise permitted.

However, if an employer does ask employees whether they have been to certain countries, it should be careful not to discriminate against employees. For example, only making enquiries in relation to one region or employees of a particular nationality could potentially be discriminatory.

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3. Does the employee have the right to be paid if they go to a country on the UK government’s self-isolation list, against the employer’s advice, and then subsequently self-isolate?

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

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

See Question 2.

It is also doubtful whether an employer would have the ability to enforce such a restriction on an employee’s personal travel. However, the employer can advise an employee against such travel if it considers it inappropriate.

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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.

7a. 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 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. From 13 March 2020 employees who are self-isolating in line with official guidance will be deemed incapable of work and also qualify for SSP providing they meet the relevant earnings requirements. It should be noted that these Regulations are in force for eight months and will then be reviewed.

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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 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. It is advisable to check the relevant Government advice in such circumstances (see the links above).

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Data Protection and Privacy

17. What can an employer communicate to others about an employee with coronavirus?

Under the Data Protection Act 2018 information about an employee’s health is a “special category of personal data”. So whilst employees must be informed of an infection risk as soon as possible, the name of the individual infected should not be disclosed. It should be sufficient to say someone in the work place has been infected and that appropriate precautions have been/will be taken.

However it should be noted that the ICO has indicated it will take a pragmatic approach to enforcement in view of the pandemic. It has said that employers can disclose to colleagues that an employee has contracted coronavirus providing the employer only discloses as much information as is necessary, it will not usually be necessary to disclose the employee’s name.

Freeths coronavirus hub now contains a section looking at data protection issues during the coronavirus crisis.

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Lay-offs

18. If the pandemic has a wider impact on the employer’s business is it possible to “lay-off” employees?

Before considering lay-off (or redundancies) an employer should consider the Coronavirus Job Retention Scheme. Details of which are set out at the top of this note.

A lay-off would mean employees being sent home for a period without normal pay. Employers will sometimes use this to deal with a short-term down turn in business. However, without the employee’s valid agreement, lay-off is only permitted if there is an express lay-off clause in the employee’s contract. Lay-off without authority under the contract would amount to a breach of contract that could entitle the employee to resign and claim constructive dismissal and/or make an unauthorised deductions from wages claim for non-payment of wages during the lay-off.

Employees may agree to a period of lay off as an alternative to the employer making redundancies, however an employer should obtain specific legal advice if it is considering lay-off.

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Annual Leave

19. Can an employer require workers to take annual leave rather than self-isolate?

Workers can choose to take annual leave during a period of sickness but an employer cannot require them to take annual leave when sick. If not sick or deemed to be sick then an employer can require an employee to take annual leave. However, any annual leave must be taken in accordance with the employee’s contract and/or the Working Time Regulations (WTR), which usually requires the employer to give twice as much notice as the annual leave being required.

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20a. Can a worker bring annual leave forward from next year to take time off during the current crisis?

To the extent annual leave brought forward exceeds the statutory minimum under the WTR, this should not be a problem if both parties agree. However, if bringing leave forward took the worker below the statutory minimum entitlement for next year this would not be possible without being in breach of the WTR.

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20b. If an employee cannot take all of their annual leave in the current leave year because of the coronavirus can it be carried forward and taken in the next leave year?

On 27 March 2020 the Government introduced emergency legislation which will allow workers to carry-forward their four weeks leave under the Working Time Directive. This does not apply to the additional 1.6 weeks statutory leave under WTR or any further contractual leave.

If it has not been “reasonably practicable” for the worker to take annual leave in a leave year as a result of the coronavirus they may carry it forward to another leave year. Such leave must be taken within two leave years of the year it ought to have been taken and the employee will be entitled to be paid in lieu of such leave on termination.

The Government’s announcement can be found here.

20c. Where can I get more information about annual leave during the coronavirus crisis?

Freeths employment team can obviously assist if you have any specific issues. However, in the first instance we would suggest referring to the latest Government guidance Holiday entitlement and pay during coronavirus (COVID-19) published on 13 May 2020.

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Pregnant Employees

21a. If a pregnant employee self-isolates and receives SSP, will this impact on her statutory maternity pay (SMP)?

SSP counts as earnings for the purpose of calculating SMP. Therefore, if the employee is paid SSP at any point during the relevant period for calculating SMP it will reduce her earnings for the purpose of SMP. The relevant period for calculating SMP is the eight weeks working backwards from the 15th week before the expected week of childbirth (or the date of giving birth if earlier).

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21b. Where can I get more information about annual leave during the coronavirus crisis?

Freeths employment team can obviously assist if you have any specific issues. However, in the first instance we would suggest referring to the latest Government guidance Holiday entitlement and pay during coronavirus (COVID-19) published on 13 May 2020.

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22. Is an employer required to send a pregnant employee home?

Pregnant employees are within the group of individuals who are “strongly advised” to follow the social distancing guidance. However, they are not yet within the self-isolation group. See question 1.

However, an employer has a general duty to protect the health and safety of its employees. There are also special duties in relation to pregnant employees (see HSE flow chart).

Accordingly, if a pregnant employee cannot work from home or safely follow the social distancing guidance in work the employer ought to consider suspending the employee on full pay.

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IR35

23. Is it correct that the Government have delayed the implementation of the new IR35 rules because of the coronavirus?

Yes. The new off-payroll working rules (IR35) in the private sector had been due to come into force on 6 April 2020. However, in view of the current crisis the Government announced on 17 March 2020 that the rule changes would be pushed back 12 months.

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Health & Safety

24. Could an employer be liable under health and safety law if an employee contracts coronavirus?

Freeths Compliance & Regulatory team have produced an article that looks at this question.

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Pensions

Our pension’s team have produced a number of coronavirus related articles which can be found under the Employment, Health & Safety and Pensions on the Coronavirus Hub.

25. What is the impact of the coronavirus on final salary pensions schemes?

Freeths Pensions team have prepared an article which can be found here.

25a. Will the current coronavirus crisis effect death-in-service benefit that an employer provides to employees?

Our pensions team has looked at this and how other employment insurance policies like income protection could be impacted by coronavirus.

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Emergency Volunteer Leave

26. The NHS has requested volunteers to help support essential services during the coronavirus crisis. Can workers take time off work to volunteer?

The Coronavirus Act 2020, which came into force on 25 March, introduced emergency volunteer leave (EVL). EVL is a new form of unpaid statutory leave.

There is an initial volunteering period of 16 weeks from the date the act came into force, which can be extended. During this time EVL can be taken in blocks of two, three or four weeks.

In order to take such leave a worker must obtain a certificate from an appropriate authority (i.e. local authority, NHS Commissioning Board or the Department of Health) to act as an emergency volunteer to help alleviate pressure on essential services during the current crisis. The worker must give their employer three working days’ notice and produce an appropriate certificate. It should be noted that EVL is unpaid but the Government intends to set up a UK-wide fund to compensate volunteers for loss of earnings and expenses incurred.

Staff in businesses with fewer than 10 workers, crown employees, the police, and certain other groups are excluded from the right to take EVL.

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Immigration

27. What is the impact of the coronavirus crisis on immigration rules?

We have now added an immigration section to our coronavirus hub. Our immigration team has produced a number of articles and a Q&A exploring the impact of coronavirus on immigration rules.

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Testing

28. Can my employee get tested for coronavirus?

On 18 May the Health Secretary announced that anyone over five with symptoms is eligible for a test. They can book a test by visiting www.nhs.uk/coronavirus.

Further details can be found here.

For further information contact Christopher Sing


Freeths’ Employment team have extensive experience of working with employers to manage their workforce, and can help you answer the questions you will no doubt be asking in the wake of coronavirus. Contact our Coronavirus Helpline on 0330 134 0199 for an initial free consultation (on appropriate commercial enquiries only). You can also contact the Helpline for questions relating to managing your workforce, or see our Coronavirus: Commercial Contracts and Supply Chain FAQ


The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.