COVID-19: Frequently Asked Questions Answered by Our Experts

Here at Avensure, we have brought you the latest in developments as the pandemic continues to roll on.

We have looked at the Coronavirus Job Retention Scheme (CJRS/furlough scheme), the Job Support Scheme (JSS) and provided guidance on redundancy/lay-off & short time working.  In this article we answer some of the frequently asked questions our experts are being asked by the clients we support.

FAQ’S:

I have an employee who is refusing to work. What do I do?

It will depend on the reasons for their refusal. Communication is key here, please avoid dismissing their concerns and simply demanding that they return to work.

If for example, an employee reasonably believes there is a danger or risk to their health from contracting the coronavirus and they are dismissed as a result of failing to attend work, this may amount to an automatic unfair dismissal, for which there is no qualifying service required and no cap on awards.

That is not to say that the mere threat of contracting the virus means that staff are able to refuse to work and you have to pay them but it is vital that you contact us for advice should you find yourself in this situation.

Next week’s article will focus on this in more detail and we will also examine the employer’s responsibilities regarding pay where an employee refuses to attend work for health and safety reasons.

If they are refusing to travel on public transport this is a valid concern but one the employer has no control over. Look at options such as home working, varying shift start and finish times to reduce the risk of travelling at peak travel times. Both parties need to be reasonable here and be prepared to be flexible in their approach. Easier said than done and again it is important that any individual cases such as this are discussed with our experts.

Be mindful of employees who have underlying/long-term health conditions. Long term health conditions such as asthma, lung conditions like COPD, diabetes & cancer are likely to be classed as disabilities under the Equality Act, under which employers have a legal duty to implement reasonable adjustments.

If an employee is refusing to work without good reason this is unauthorised absence, for which they are not likely to be paid and may result in disciplinary action being taken against them. Please take advice before carrying out any formal action.

Can an employee insist they work from home?

No. It’s tricky given the UK is in different degrees of restrictions and lockdowns but generally the advice is if you can work from home you should.

This doesn’t mean that employers are prohibited from opening their places of work (unless they are ordered to close) but if your staff have been working from home and it is possible for you to continue to allow them to do so, then you should examine the reasonableness of any requests to insist that an employee return to their place of work.

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What if an employee books annual leave but needs to self-isolate on their return?

If an employee is requesting leave and intends to travel where they know they will be asked to self-isolate on their return, they should factor this into their leave request. For example, if they are staying in a country not on the safe travel corridor list for one week, they should be asking for 3 weeks leave from their employer to allow for the 14 day quarantine period.

If you can’t agree to them taking three weeks leave then you can refuse their request.

If someone travels and whilst they are away discovers that the country they have visited has now been removed from the safe travel corridor list, the employer can either agree for them to tag on additional annual leave to cover some or all of the quarantine period or they will remain on authorised unpaid leave.

You cannot insist they return to work before the self-isolation/quarantine period ends. Both you and your employee will be breaking the law.

Please see our previous article on annual leave and quarantine here.

My employees are asking to ‘extend their furlough’ by requesting annual leave. Do I have to agree to this?

Normal rules for the booking and authorising of annual leave apply. Any requests for annual leave should be considered on a case by case basis and in line with the needs of the business.

An employee can’t ‘extend their furlough’ if they want to request leave and have done so in line with your procedures on requesting annual leave then allow this if you can. If you cannot then turn the request down.

What if an employee has been contacted by track and trace, told to self-isolate but tries to return to work?

They cannot do this. They have a duty to inform you if they are told to self-isolate. Depending on the circumstances, this could give rise to disciplinary action and may be an allegation of gross misconduct.

However gross misconduct is rare- always seek advice before taking action. Please see our previous article on gross misconduct here.

Can an employee refuse to return from furlough because I have not given them enough notice?

No. You have the right to insist that your employee return to work when needed.

However, we do need to be reasonable, so if you can give some notice then aim to do so.

Can I use the Job Support Scheme if I have not used furlough?

Yes. The Job Support Scheme (JSS) is open to employers who have not used the furlough scheme and you may be able to place employees on the JSS who were not eligible to be furloughed in March. As long as they were on your payroll on or before 23rd September 2020 and their RTI has been submitted to the HMRC, you can use the JSS.

Please see our previous article on the JSS here.

Can an employee refuse to wear a face covering?

Face coverings are mandatory in many sectors and areas of the UK now. If you have a member of staff who is refusing to wear a face covering, the first thing you need to establish is why they are refusing.

If it is merely because they don’t like wearing a face mask or visor, then that is not acceptable, and they must wear one. If they continue to refuse, they may face disciplinary action.

If they are refusing due to health reasons, such as a respiratory condition like asthma or anxiety related conditions, then you will need to look at adjustments because their condition is likely to be classed as a disability under the Equality Act.

Our experts can talk you through this.

My business is based in Wales. My staff have been on furlough, some still are, and others are doing flexi-furlough, as I have been able to partially re-open. However, I will be forced to close with the 2 week lockdown beginning on 23rd Oct to 6th November. How do I pay my staff?

With effect from 23rd October if you are forced to close your options are as follows:

  1. Having utilised the furlough scheme previously you can place your staff back on full-time furlough to the end of October. For those staff who are not eligible to be furloughed, you could look at temporary lay-off or short time working but this will depend on upon whether you have the contractual right to do so.

You may be able to negotiate a period of unpaid leave with your staff or place them on annual leave but of course you are responsible for full pay in this instance.

  1. With effect from 1st November you can utilise the Job Support Scheme. For businesses forced to close (not those who choose to close) the scheme has been expanded so that the government will pay 2/3’s of wages up to £2100 per month.

The below illustration sets out how the financial support will look.

bbc.co.uk

Please be aware that the scheme does not open for claims until December, so the employer is still responsible for covering 2/3’s of wages until they are able to claim it back.

For more information please see here.

What about the changes to the Job Support Scheme as announced by the Chancellor on 22nd October 2020?

At the start of the month the Job Support Scheme (JSS) details were announced -please see our article which set out the original scheme details here.

The Chancellor has now announced changes to the scheme aimed at providing more financial support for those businesses across the UK who are not required to fully close but whose businesses are invariably struggling and still require support once the furlough scheme ends.

Under the JSS coming into force on 1st November 2020 the following will now apply:

  • Employees must return to work for a minimum of 20% of their contractual hours. For a 5 day a week worker this equates to one day per week. Financially they lose a third of their pay.
  • Employers will pay for the hours the employee works and contribute 5% of the total hours not worked
  • The government will contribute 62% for the remaining hours not worked subject to an increased cap of £1,541.75 per month

Example- If someone were being paid £587 for their unworked hours, the government would be contributing £543 and the employer £44.

For more information please see here.

Can employees refuse to reduce their hours under the job support scheme and if I were to insist on it would this be a breach of contract or am I legally entitled to reduce their hours?

You are never ‘entitled’ to reduce hours/pay and the introduction of the JSS does not supersede your obligations to adhere to the terms under the contract of employment. If you do so without agreement you are committing a contractual breach.

However, as with the furlough scheme, employers can seek agreement with their staff to temporarily vary their terms so they can claim under the JSS. If an employee refuses then you will be faced with having to implement lay off/short time working or redundancy, which in most cases will mean employees are worse off, so hopefully they will agree.

Our experts can talk you through moving your staff from furlough to the JSS, we can provide the paperwork you need and also advise you on the appropriate action to take if you do encounter problems in gaining employee agreement.

And finally….. As always, there is no ‘one size fits all’ approach to any HR issue. Here at Avensure we tailor our advice to the needs of each business we support, taking account of the sector in which they operate and how the lockdown measures in their local area are affecting them.

If in any doubt, contact us- there is no such thing as a silly question, we are here to help you.

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