Employment law and COVID-19 – where are we now in winter 2020?

Restrictions have tightened up again in many parts of Scotland for the second wave of coronavirus; with much of the West under tier 4 restrictions. Undoubtedly, this is going to be a tough winter for many businesses and their employees. Knowing your rights and obligations during these unpredictable times is essential.

While the legal position on many of the key employment issues remains the same as in April 2020, there have been some important developments. Here we provide up-to-date information for employers and employees. However, please be aware that the guidance in this area changes regularly.

If you have urgent concerns on any employment law matter, please do not hesitate to get in touch with our employment solicitors using our online enquiry form.

Coronavirus Job Retention Scheme

The original furlough scheme was due to end on 31 October 2020. After initially extending until December 2020, the Chancellor recently announced the UK-wide system will remain open until the end of March 2021.  

Key information:

• The Government will pay 80% of employees’ income, up to £2,500 per month. The contribution rate will be reviewed in January and could be reduced for the remainder of the scheme.
• Employees are now eligible for furlough if they were employed on or before 30 October 2020.
• Employers can use the scheme even if they have never used it before or have not previously furloughed the employees.
• There is no minimum furlough period.
• The claim period is now shorter, with each claim being submitted by day 14 of the following month.
• Employees who have been made redundant or left their jobs can be re-employed and furloughed (as long as they were on the payroll on 23 September 2020).
• Workers can be furloughed on a full-time basis, or they can work part-time and receive a furlough grant for the rest of their usual working hours.
• HMRC will publish the names of companies that have made claims in December 2020 and January 2021.
• The Job Support Scheme, which was due to replace the furlough arrangement, has been postponed until at least the end of March 2021.
• The Job Retention Bonus, a payment to be made to employers that had kept on previously furloughed staff until the end of January 2021, has been withdrawn. The UK Government has said that an alternative retention initiative will be “deployed at the appropriate time”

Employers can read more about the furlough scheme in our article: Coronavirus Job Retention Scheme: what does it mean for employers? (Please read this in light of the changes noted above). 

Employers can read more about the furlough scheme in our article: Coronavirus Job Retention Scheme: what does it mean for employers? (Please read this in light of the changes noted above). 

Working from home

The Scottish Government’s position continues to be that if employees can work from home, they should. This advice remains the same across all five tiers of the local protection system currently in force in Scotland.

Employers can find out more about facilitating homeworking in our article: Coronavirus (COVID-19) and the implications for employment law.

Employers: can I make working from home permanent?

Many businesses are intending to keep all or some aspects of their homeworking approach permanently, having found many benefits. The Government has produced guidance for employers considering a longer-term policy, including advice on communication and engagement with employees, equality, wellbeing and health and safety. Any permanent change to an employee’s place of work must be done following the terms of the employment contract and by consulting with the employee.  

Employees: can I request to work from home on a permanent basis?

If you have been working for your employer for 26 weeks, you have the right to make a flexible working request, which includes asking to work from home. Your employer must consider your request fairly but does not have to accept it. If they refuse, however, they must provide a legally acceptable business reason for doing so. Even if you’re not eligible to make a flexible working request, your employer may still consider your wishes to work from home.

Official guidance for workers and employers on returning to work safely has also been published.

Employees at a high risk of COVID-19

Can employees on the shielding list come to the workplace if they can’t work from home?

Although working from home remains the default, from 1 August, the Scottish Government advised that most people who were shielding could return to their workplace if required and safe to do so.

New guidance has been issued for those at highest risk from coronavirus, indicating they can attend their workplace at all levels of the tier system as long as it is safe. Employers must ensure that risks are assessed, and all necessary adjustments are made to the workplace to protect shielding employees.

In tier 4, shielding workers will be issued with a letter, similar to a fit note, from the Chief Medical Officer. If it’s not possible to make the workplace safe, the letter can be used as evidence that they can’t go to work. The note will be valid for as long as the area is under level 4 restrictions.

What if an employee at high risk cannot attend work?

If it’s not possible to make the workplace safe for employees who are at high risk, or they can’t attend for another reason, an agreement should be reached between the employer and employee on the best way forward. This may involve working from home, if possible, or being furloughed or receiving Statutory Sick Pay (SSP) – more on this below.

Test and Protect

The Scottish Government’s Test and Protect system went live on 28 May 2020 and aims to disturb community transmission of the virus. It works by testing people with symptoms and tracing those who have come into close contact with someone who has tested positive, so they know to self-isolate.

Employers are being encouraged to support their employees who must get tested or self-isolate under this system.

Key information:

• If an employee becomes ill with COVID-19 symptoms at work, they should leave and self-isolate immediately.
• Until the employee has received test results, they should not be required to come back to the workplace.
• If the employee tests positive, they must isolate for a minimum of 10 days.
• If the NHS tracing team asks other employees who have been in close contact to self-isolate, they must do so immediately for 14 days.
• Employees who are self-isolating can work from home if they feel well enough.
• Workers must not return to the workplace until their period of self-isolation is complete.

Certain employees may be eligible to receive a £500 support grant if they have been told by the Test and Protect service to self-isolate.

Statutory Sick Pay (SSP)

The categories of people entitled to SSP during the pandemic have been extended to include employees who are

• shielding (if the workplace can’t be made safe and they can’t work from home);
• advised to self-isolate through the Test and Protect initiative because they have come into contact with someone who has tested positive; and
• self-isolating because a member of their extended household has symptoms. An extended household is two households that have chosen to be treated as one, where one home has a person living alone or has only one occupant over the age of 18.

For more information on SSP for employees, see our article: What are my rights to sick pay during the coronavirus (COVID-19) pandemic?. (Please read this in light of the changes noted above).

Contact our Employment Lawyers in Glasgow & Paisley Today

If you are an employee or employer needing up-to-date advice on your rights and obligations during this time, please get in touch. Call us on 0141 887 5181 for our Paisley branch or 0141 551 8185 for our Glasgow branch or complete our online enquiry form and we will get back to you.