Scrase Law Employment Solicitors

Coronavirus July update – in case you missed it

Throughout the Coronavirus pandemic, Government guidelines and provisions have been changing regularly.  We take a look at some of the recent key changes this month that employers should be aware of.

Extension of self-isolation period

The UK Chief Medical Officers have announced that the self-isolation period has been extended to 10 days for those individuals who have coronavirus symptoms or a positive test result.  This is an extension from the current 7-day self-isolation period.

Individuals who have symptoms of coronavirus must stay at home and arrange to have a test to see if they have COVID-19.  The Government guidance for households with possible or confirmed infection has been updated to reflect the extension. 

Employers must be aware that employees should not come to work where they are advised to stay at home under existing Government guidance. This includes anyone who has symptoms of COVID-19, anyone in a household with someone who has symptoms and anyone who is advised to self-isolate in accordance with the Government’s test and trace strategy. 

Changes to working from home advice

On 17 July, Boris Johnson confirmed that from 1 August, the Government will no longer tell people to work from home where possible.  Instead, it will give employers “more discretion” and ask them to make decisions about how their staff can work safely.  The guidance for England states: “Working from home is one way to do this, but workplaces can also be made safe by following COVID-19 Secure guidelines.”

Changes to shielding provisions

The Government guidance on shielding provisions is changing with effect from 1 August.  From that date, the Government will “pause” shielding unless transmission of COVID-19 in the community starts to rise significantly.

Employers should therefore be aware that from 1 August, employees who were previously shielding will no longer be advised to shield.  The guidance states that those individuals “can go to work, as long as the workplace is COVID-secure – but carry on working from home if you can”.  Individuals who were previously shielding will not be entitled to Statutory Sick Pay from 1 August 2020.

However, the fact that the Government guidance no longer recommends shielding does not, necessarily, mean that it is appropriate to require shielding employees to return to their workplace without further consideration. 

Employers should carry out a risk assessment to identify whether there are any particular potential risks, taking into account factors including the nature of the workplace, the employee’s role, and the nature of their medical condition, and consider whether any adjustments to the employee’s role or the work area should be made.  There is a high risk that a previously shielding employee will have a medical condition that falls within the definition of “disability” under the Equality Act 2010.  A requirement on them to attend work could, in some circumstances, give rise to a claim of discrimination.  Employers should therefore consider whether they need to seek advice from occupational health, particularly as to whether it is suitable for the employee to return to the workplace and whether any adjustments should be made.  

Changes to self-isolation advice on return to the UK

The FCO currently advises British nationals against all but essential international travel.  Travel to some countries is, however, currently exempted.  Individuals travelling to England are required to self-isolate for a period of 14 days unless they are arriving from an exempt country.  However, the list of exempt countries is being kept under constant review and changing quickly with little notice.  On 25 July, for example, Spain was removed from the list of exemptions.

It is possible that the list of exempt countries will change while an employee is on holiday, and that they will then be required to self-isolate on their return.  Where they are unable to work from home, this would disrupt their planned date of return to work.  Employees self-isolating for this reason (rather than because they themselves have symptoms or live in a household with someone who has symptoms) will not be entitled to pay from their employer or to Statutory Sick Pay.  It may be possible, however, to agree that the employee takes further holiday to cover this period of self-isolation.

Furlough pay and notice periods

On 17 July, HMRC updated its guidance to confirm that employers can make claims under the Coronavirus Job Retention Scheme in respect of contractual and statutory notice periods of furloughed employees.   The position had previously been unclear on this point.  As a result, if a furloughed employee is given notice of the termination of their employment, and they serve that notice period on furlough, employers can continue to claim the grant.  There does not appear, however, to be any mechanism within the terms of the CJRS for an employer to claim the grant where making a payment in lieu of notice to an employee.

The guidance reminds employers that any redundancies must be carried out in accordance with normal rules. 

Furlough and redundancy pay

The Government has announced that statutory redundancy pay will be based on an employee’s normal wage, rather than a reduced furlough rate.  New legislation is being brought into force from 31 July 2020.   Business Secretary Alok Sharma stated “We urge employers to do everything they can to avoid making redundancies, but where this is unavoidable it is important that employees receive the payments they are rightly entitled to”.  The new legislation will also apply to statutory notice pay, to ensure that notice pay is based on normal wages rather than furlough pay.

New guidance on CJRS errors and penalties

HMRC has published new guidance documents confirming how employers should deal with errors in claims under the CJRS and the penalties for failing to report overpayments.

In relation to overpayments, employers must notify HMRC and make a repayment.  The guidance document sets out the process and the relevant deadlines.  Where employers have claimed too little, the guidance confirms that they can inform HMRC and amend their claim.  However, after 31 July 2020, employers will no longer be able to amend a claim for the period up to 30 June.  The guidance clarifies that the employer will still need to make sure that they pay the employees the correct amount.

In relation to penalties, HMRC confirms that it may recover the full amount of any overpayment through an income tax charge, with interest and penalties due on late repayments.  Where employers fail to notify HMRC of any overpayment, penalties may be imposed of up to 100% of the overpayment where the employer’s failure was deliberate and concealed.

30 July 2020

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