With the UK now in coronavirus lockdown, many people will be anxious about their right to stay at home and their right to get paid. Lawyer Alex Monaco answers a selection of frequently asked questions on your employment rights.
On Monday (23 March), prime minister Boris Johnson announced a full UK lockdown.
Workers have been told only to travel to and from work if they can’t work from home. Non-essential shops are closed. Construction sites are still open, and places of work are being allowed to determine for themselves whether they are essential or not.
What is the government-backed wage?
If your employer’s business has been badly hit by Covid-19, and they can’t afford to pay you, they can now send you home safe in the knowledge that the government has offered to pay you 80 percent of your salary, up to a maximum of £2,500 per month. This can be backdated from 1 March 2020. This is known in legal circles as the Furlough wage.
It is not clear what the exact rules will be around this new law, and we are waiting daily for further updates from the government. There are some questions arising from this:
- Will I receive my full wage or just 80 percent?
The government has offered to pay the employer 80 percent of your wage. But your employer is still obliged to pay you 100 percent of your wage, unless they get your agreement to pay only 80 percent. You can choose not to accept the 80 percent and to insist on the whole 100 percent. An alternative for your employer is to ask you to sign up to wait for your payments until the government has started the scheme. If your employer says they can’t afford to pay you 100 percent, and you don’t agree to wait, they need to make you redundant, and then pay you a redundancy package. If you have no contractual redundancy package in your contract of employment, then you will be entitled to statutory redundancy pay.
- How does my employer implement the government-backed wage?
The online portal for this has not yet been set up. Once it is up and running, your employer will be able to register you online. It could be around May 2020.
- What is my employer supposed to do before they can access this money?
It seems that your employer is supposed to take out a loan to cover cashflow. Although loans are very difficult to access at the moment.
- I am old / sick / pregnant / vulnerable, can I be placed on Furlough, even though the company is not laying anyone else off
Yes, probably at the time of writing (26 March). We’ll see what the legislation says on this.
- What if I was made redundant before the scheme was announced?
Contact your old employer and ask them to take back your redundancy and instead put you on this wage.
- What if I don’t want to be on this wage but want to take redundancy instead?
Our best guess is that, if you are on this wage for four weeks in a row, you will be entitled to ask your employer to make you redundant instead, and pay you £400 per month.
- What if I am due to start a new job soon?
Our best guess is that you won’t be entitled to this wage unless you have been employed for at least a month prior to 1 March 2020, but hopefully we are wrong about this.
- How long will the government-backed wage scheme last?
The government has said at least three months, after which time it will be reviewed.
- Will the government scheme apply if I’m on a zero-hours contract?
The scheme should apply to people on a company’s payroll, and this should cover some people on zero-hours contracts, but may not cover all.
What if I am vulnerable but under pressure to attend work?
If you are pregnant, old, or suffer from a disability or ill-health which your employer already knows about, then we hope that your employer would be more receptive to proposals for you to work remotely where possible, or to go on the government-backed wage (Furlough leave).
If you are living with someone in that category, but your employer is still forcing you to come to work, then you are in a difficult situation. Whilst the law on this is not yet clear, we advise that it could be unlawful for your employer to insist on this due to your legal rights to be protected against:
- constructive dismissal
- indirect disability discrimination (if you are a vulnerable person)
- indirect age discrimination (if you are an older person)
- indirect disability discrimination by association (if you live with a vulnerable person)
- indirect age discrimination by association (if you live with an old person)
- breach of health & safety law
What if I am self-employed?
On Thursday (26 March), Chancellor Rishi Sunak announced 80 percent pay for self-employed people out of work due to coronavirus.
- It’s a taxable grant of 80 percent of of your average monthly income, capped at £2,500 per month
- Income will be your average income over the last three years
- You can claim these grants and continue to do business.
- It’s only open to anyone with trading profits of up to £50,000 (which covers 95 percent of self-employed people). Self-employed people who earn more will not qualify.
- It’s only open to those who make the majority of their income from self-employment. So if you are employed but have a ‘side job’ which is self-employed, you will not be eligible
- It’s only for those who have submitted a tax return for 2019 (to minimise fraud). However, those who did not submit their tax return by the due date of 31 January 2020, and have not yet submitted one, can still submit a tax return for 2019 for a further four weeks from today 26 March 2020.
- For a payment mechanism, there are no steps to take. HMRC will contact eligible self-employed people directly and pay the grant straight into their bank account after asking them to fill in an online form.
- This scheme will be open to people across UK for at least 3 months. However, the scheme is unlikely to be up and running before the end of June 2020 so it will not help with immediate cash flow issues.
Am I entitled to pay when “self-isolating” for coronavirus?
You are legally entitled to Statutory Sick Pay (SSP) if you have symptoms, or been advised to self isolate by a doctor or other medical authority. You can get an isolation note online on the NHS 111 website
If you want to self-isolate because of coronavirus, but you are not sick yourself, then the current legislation does not entitle you to SSP. We hope this will change soon.
If you are a vulnerable person, for example old or with underlying health conditions, then the current legislation does not entitle you to SSP. As at 26 March 2020 we hope this will change soon. Still, we would advise you to get an isolation note online on the NHS website mentioned above. This would then entitle you to SSP.
If you are pregnant, then your employer must do a risk assessment. If it is unsafe for you to attend work, your employer has to suspend you on full pay. If that is within 6 weeks of your due date, then you are entitled to start your maternity leave at that point, as per the legislation here.
If, however, you are able to work remotely, and your employer agrees that you may do so, then in those circumstances, you will be entitled to your usual pay.
You should talk to your employer about your concerns before you decide to take any action, and see if you can agree on the best way forward.
Can I be dismissed for self isolating and not coming into work?
No! This would amount to automatically unfair dismissal under the Employment Rights Act 1996.
There is a case on this too, called Harvest Press Ltd & McCaffrey 1999 ILRL 778, which you can quote on this. Your employer might be allowed to discipline you, but not dismiss you.
What if I have to take time off to care for dependents?
In an emergency, you have a right to ‘reasonable’ time off work to care for dependents. Your dependents may themselves be unwell, or their usual carers/school/other providers can’t operate because of coronavirus restraints.
This time off is unpaid, unless you have an employment contract or insurance policy that provides for payment in such circumstances.
What is a ‘reasonable’ amount of time off will depend on your particular situation. Your employer is required to consider your case without reference to any inconvenience or disruption to their business. You should discuss it with your employer as soon as possible to avoid any possible misunderstanding.
What if my employer requires me to be absent from work?
If your employer has good reason to ask you not to attend work (eg. you have recently returned from a country badly affected by coronavirus, or had contact with someone with the virus), then they can ask you to stay away. You will be entitled to your contractual pay.
If your employer decides to reduce your hours of work or to close your place of work, then you are entitled to pay as normal, without any reduction. Of course your employer can instead put you on “Furlough leave” and ask the government to pay you 80 percent of your salary whilst you’re at home (see above).
If I get coronavirus, will I get the usual sickness leave and sick pay entitlements?
If you have been diagnosed as having contracted coronavirus or are suspected by medical authorities as having it, you will be entitled to the usual sick leave and entitlements to pay, as with any other sickness and sickness absence.
Source: S151 Social Security Contributions and Benefits Act 1992
If I am made redundant, does my employer have to consult me?
Normally, where making over 20 employees redundant, the employer has to consult for a period of 90 days before making redundancies.
But with coronavirus, there is probably a defence open to the employer due to “special circumstances”, which could compress this period, so they wouldn’t have to consult for the full 90 days. They would however probably need to consult for at least say 14 days. If they don’t do that it’s procedurally unfair dismissal.
If less than 20 people are being made redundant, then your employer has a duty to consult you. This duty is not defined by statute, but is generally said to include more than one meeting, and a chance for you to make some reasonable input into the decision.
If I have been laid off because of coronavirus but I want to leave my job can I 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 and ask them to give you a statutory redundancy payment plus your notice pay. If they don’t reply, you can resign but you have to give notice, as per your notice period (which is the longer period of either your contract or statutory notice period). Then you have a claim for your statutory redundancy pay.
Alex Monaco is the founder of Monaco Solicitors. Please note that this article does not provide legal advice but is for information purposes only. For legal advice, contact a lawyer.