The HR Blog
Article contributed by Alex Monaco, Monaco Solicitors.
Coronavirus: employee rights
There have been unprecedented impacts on employees’ rights during this coronavirus pandemic, including the right to health and safety and the right to be paid. If your employer has cut your pay because you have refused to attend an unsafe workplace or you have been unfairly dismissed, read our article here.
Despite many employers accidentally infringing, or even deliberately ignoring these rights to stay afloat in this chaos, your rights as an employee have not changed.
This guide covers:
Can your employer force you to attend work if you are vulnerable, or a danger to a vulnerable person?
Your employer already knows how old you are. Assuming that they also know if you are pregnant, or suffer from ill-health or a disability, then hopefully they will be receptive to proposals for you to work remotely where possible or to be put on the government Coronavirus Job Retention Scheme on temporary ‘furlough leave’ (see below). The deadline for new entrants to the furlough scheme has now passed (except for parents on statutory maternity/paternity leave).
Even if you are just living with someone in the above categories, an attempt by your employer to force you to attend work could be breaking the law. The law for these circumstances is not yet clear in relation to covid-19. We advise that an attempt by your employer to force you to attend work could be unlawful, as doing so could be subjecting you to one or more of the following:
– discrimination relating to age, pregnancy or disability, or
– constructive dismissal or
-breach of health & safety law
The Coronavirus Job Retention Scheme, also known as ‘Furlough Leave’, is available if your employer’s business has been affected by covid-19. This scheme allows your employer to let you stay at home as the government will pay them 80% of your salary, up to a maximum of £2,500 per month until the end of July this year, at least (see more below). This can be backdated from the 1st of March this year.
The way in which this scheme will apply to you must be agreed between yourself and your employer, specifically whether you are happy to accept only 80% of your current salary up to a maximum of £2,500 per month, or whether you wish to receive the full 100% (with no upper limit). Your employer cannot simply put you on the scheme without your agreement. If you do not agree, however, they can make you redundant. Further information and tactics for employees about this is in our separate practical guide on furlough leave.
The scheme will continue to operate from August until the end of October this year, but employers will be expected to contribute to the cost and will be able to bring furloughed employees back to work part-time. Further changes to the scheme can be summarized as follows:
June 2020: The government furlough scheme will close to new entrants at the end of the month and employers must register new entrants prior to June 10th. Employers of parents on statutory maternity/paternity leave have been granted a longer period to register for furlough – details of which are still awaited.
From July 2020: Employees that have been furloughed can work part time.
From August 2020: Employers will be required to pay the employers’ national insurance and pension contributions for furloughed employees.
From September 2020: Government contribution to furlough pay reduces to 70%, capped at £2,190 a month. Employers pay 10% (and top-up to 100% if previously agreed).
From October 2020: Government contribution to furlough pay reduces to 60%, capped at £1,875 a month. Employers pay 20% (and top up to 100% if previously agreed).
Can you be dismissed for not coming to work because you are self-isolating?
No! Your employer may be allowed to start disciplinary action against you, but legally, they cannot dismiss you. Any attempt to do so would amount to automatically unfair dismissal under s.100 of the Employment Rights Act 1996.
Despite not relating directly to the coronavirus, a good example of automatically unfair dismissal can be found in the case of Harvest Press Ltd & McCaffrey 1999 ILRL 778.
Can your employer reduce your salary?
As long as your employer is justified in doing so, they can reduce your salary. We are frequently encountering employers telling their employees to take a pay cut during the coronavirus. It will be easy for your employer to justify giving you a pay cut provided that the same is being asked of other employees.
Employers can simply give you another contract of employment with a pay cut along with your notice. If you don’t agree to work under the new contract, your employer can terminate your employment when your notice period is over.
The effects of coronavirus on the self-employed.
On the 29th May 2020 the Chancellor announced a second grant for self-employed whose businesses have been affected by the coronavirus. The main points of this scheme include: The initial grant will be a taxable payment of 80% of the business’ average monthly trading profits, covering three months of profit up to £7,500. The deadline for applications for this grant was July 13th 2020.
The second grant is worth 70% of the business’ average monthly trading profits up to £6,570. This can be applied for in August 2020. Recipients can work as well as receiving these grants.
Based on your average income in the previous 3 years of trading.
Not available to people on over £50,000 p.a.
Read more in our article on the government scheme for the self-employed and read the government website for the self-employed scheme here.
Are you entitled to pay if you are self-isolating due to coronavirus?
If you have symptoms or have been advised by your doctor or other medical authority to self-isolate, you are legally entitled to Statutory Sick Pay (SSP). You can obtain an isolation note online on the NHS 111 website. The current legislation does not entitle you to SSP if you are not sick yourself and want to self-isolate. The current legislation does not entitle a vulnerable person, for example old or with underlying health conditions to SSP. Still, we would advise that you get an isolation note online on the NHS 111 website, which would then entitle you to SSP.
Your employer must do a risk assessment if you are pregnant. Where it is deemed unsafe to attend work, your employer must suspend you on full pay. You are entitled to start your maternity leave at this point if this is within 6 weeks of your due date, as per the legislation here.
If, however, you can work remotely, and your employer agrees to this, then in these circumstances, you will be entitled to your usual pay. Before deciding to take any action, you should talk to your employer about your concerns and see if you can agree on the best way forward. This legislation is contained in The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020.
Are you entitled to pay if your employer tells you to stay off work?
Your employer can ask you to stay away from work if they have good reason to ask you not to attend (for example, if you have recently returned from a country badly affected by coronavirus or had contact with someone with the virus). Where this is the case, you will be entitled to your contractual pay.
If your hours of work have been reduced or your employer closes your place of work, then you are entitled to your normal pay, without any reduction. Alternatively, your employer can put you on the government’s furlough leave scheme (see above) as the government will pay 80% of your salary whilst you’re at home.
(See S151 Social Security, Contributions and Benefits Act 1992 and S147-154 Employment Rights Act 1996 for relevant legislation)
What are your rights if you take time off work to care for dependents?
On 4th April 2020, the government announced an extension of the Coronavirus Job Retention Scheme mentioned above, to people with childcare responsibilities due to covid-19 restrictions. This must be agreed with your employer as furlough is not an automatic right, however, this is great news for parents.
So, what are your automatic rights? Automatic rights are set out in pre-existing legislation, Section 57A-57B Employment Rights Act 1996. According to this legislation, you have a right to ‘reasonable’ time off work to care for dependents in an ‘emergency’. This includes where your dependents’ usual school/carers or other provider cannot operate due to covid-19 restraints.
Unless you have an insurance policy or your employment contract provides for payment in these circumstances, time off will be unpaid. What is a ‘reasonable’ amount of time off depends on your individual situation. Your employer is required to consider your case without reference to possible disruptions or inconvenience to their business.
Undoubtedly the coronavirus crisis does fall under an emergency, and what is considered as ‘reasonable’ is a period of time ongoing, at least, until schools and nurseries are open. But you should initially ask for full pay or at least furlough leave (see above).
If you get coronavirus, will you be entitled to sick leave and pay entitlements?
If you have been diagnosed with coronavirus or medical authorities suspect that you may have it, you will be entitled to the usual entitlements to pay and sick leave, just like any other sickness and sickness absence.
(See S151 Social Security Contributions and Benefits Act 1992)
If you are made redundant due to covid-19 do you still have to be consulted by your employer?
Normally, when employers are making over 20 employees redundant, they have to consult for a period of 90 days before making redundancies. However, with coronavirus, this period could be compressed so that they do not have to consult for the full 90 days, as employers are likely to cite ‘special circumstances’. In our opinion, they would, still need to consult employees but for a reduced number of days.
The employer has a duty to consult you if less than 20 people are being made redundant. This would generally include more than one meeting and an opportunity for employees to make reasonable input into the decision, despite not being defined by statute.
If you have been laid off due to the coronavirus but you want to leave your job can you choose redundancy?
If you are laid off for 4 weeks in a row, or for 6 weeks in any 13-week period, you can write to your employer asking them to give you statutory redundancy payment as well as your notice pay. If your employer does not reply, you can resign and will have a claim for your statutory redundancy pay. In doing so, you must give notice, as per your notice period (which is the longer period of either your contract or statutory notice period).
Monaco Solicitors have created a free Coronavirus Rights app which may be able to help you if you have been affected by any of the situations outlined above. This app provides individuals with an advice letter as well as two example letters to your employer for free.
Check out the Coronavirus Rights App here!