Alex Monaco, founder of the first Employee Rights Day in the UK shares his insights on employment law developments during the coronavirus crisis
There have been unprecedented impacts on employees’ rights during this coronavirus pandemic, including the right to be paid and to health and safety in the workplace.
According to new data from HMRC, through the government’s coronavirus job retention scheme, construction firms have claimed more than £2.9bn.
Construction companies across the UK have claimed nearly 10% of the total £30.9bn that the government paid through the furlough scheme.
The number of construction staff on furlough is expected to reduce rapidly as contractors bring staff back into work or opt for redundancies to shrink for predicted lower levels of activity.
If your wages have been cut or you have been unfairly dismissed because you have refused to attend an unsafe place of work, read our more detailed article here.
Even though some employers accidentally infringe, or even deliberately ignore your rights to stay afloat in this chaos, your employment rights have not changed.
Can you be forced to attend work if you are vulnerable, or a danger to a vulnerable person?
Your employer will already know how old you are, and assuming that they also know if you are pregnant, or suffer from ill-health or disability, then hopefully they will be open to proposals for you to work from home where possible or be put on the government furlough scheme. The deadline for new entrants to the government Coronavirus Job Retention Scheme, or furlough has now passed (except for parents on statutory maternity/paternity leave).
An attempt by your employer to make you attend work, even if you live with someone in the above categories, could be breaking the law.
Despite the law in relation to Covid-19 not being entirely clear, we advise that an employer’s attempt to force you to attend work could be unlawful, as doing so could subject 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’ has been made available to businesses affected by Covid-19. The scheme will allow your employer to let you stay at home, as the government will pay them 80% of your salary (up to £2,500 per month) until the end of August. These payments will be reduced to 70% in September and 60% in October.
Your employer cannot just put you on the scheme without your agreement. They should have agreed with you, in advance, as to whether you were happy to accept only a percentage of your wage, or whether you insisted on receiving the full 100% (with no upper limit). However, if you don’t agree, your employer could make you redundant.
There is more detailed information and tactics for employees about this in our practical guide on the furlough scheme.
Can you be dismissed for not coming to work because you are self-isolating?
Your employer could start disciplinary action against you for refusing to work, but legally, they cannot dismiss you. Doing so would amount to automatically unfair dismissal under s.100 of the Employment Rights Act 1996.
Despite not relating directly to the coronavirus pandemic, an example of automatically unfair dismissal can be found in the case of Harvest Press Ltd & McCaffrey 1999 ILRL 778.
Read our more detailed guide on coronavirus unfair dismissal here.
Can your employer cut your salary?
Your employer can make cuts to your salary, as long as they are justified in doing so. Employers asking their employees to take a pay cut is something that we have frequently encountered during the coronavirus. Provided that the same is being asked of other employees, it will be easy for your employer to justify telling you to take a pay cut.
Employers could also give you another contract of employment including the pay cut as well as your notice. If you don’t agree to work under the new contract provided, your employer can terminate your employment once your notice period is over.
The impact of coronavirus on the self-employed
On the 29 May 2020 the chancellor announced a second grant for those who are self-employed and have been affected by the coronavirus.
Our article on the government scheme for the self-employed outlines the scheme in more detail, but to summarise:
The first grant was available until 13 July 2020 and was worth 80% of average monthly trading profits, capped at £7,500 total.
Applications for the second grant closed on 17 August 2020 and was worth 70% of average monthly profits, capped at £6,570.
Are you entitled to pay if you are self-isolating due to coronavirus?
If you are experiencing symptoms, or have been advised by your doctor or other medical authority to self-isolate, you are legally entitled to Statutory Sick Pay (SSP). Isolation notes can be obtained online on the NHS 111 website.
However, you will not be entitled to SSP if you are not sick yourself and want to self-isolate.
We would advise that if you are a vulnerable person, for example, old or with underlying health conditions, to get an isolation note online on the NHS 111 website, as current legislation does not entitle you to SSP.
If you are pregnant, employers must conduct a risk assessment. You can be suspended on full pay if it is deemed unsafe to attend work. You will also be entitled to start your maternity leave at this point, as long as it is within 6 weeks of your due date. Further details can be found in the legislation here.
If, however, you can work remotely, and your employer agrees to this, then you will be entitled to your usual pay.
You should talk to your employer about your concerns and see if you can agree on the best way forward before taking any action.
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?
If employers have a good reason to ask you not to attend work (for example, if you have recently returned from a country badly affected by coronavirus, or had contact with someone with the virus), they can ask you to stay away. If your employer does this, you will be entitled to your usual pay, as per your contract.
If your employer closes your place of work or reduces your hours, then you will be entitled to normal pay. In these circumstances, your employer could put you on the furlough scheme, where the government will pay 80% of your salary whilst you are 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 4 April 2020, the government announced an extension of the Coronavirus Job Retention Scheme, to people with childcare responsibilities due to covid-19 restrictions. As furlough is not an automatic right, this must be agreed with your employer, however, this is great news for parents.
The automatic rights that you do have are set out in Section 57A-57B Employment Rights Act 1996. This legislation grants you a right to ‘reasonable’ time off work to care for dependents in an ‘emergency’, including circumstances where your dependents’ usual school/carers or ther provider cannot operate due to Covid-19 restraints.
Time off in these circumstances will be unpaid, unless you have an insurance policy or your employment contract provides for payment. What is considered a ‘reasonable’ amount of time off for this will depend on your individual circumstances. Your employer must consider your case without reference to possible disruptions or inconvenience it may cause the business.
Undoubtedly the coronavirus crisis is considered an emergency, and what is considered as ‘reasonable’ is a period of time on-going, at least, until schools and nurseries re-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 medical authorities suspect that you may have the coronavirus or you have been diagnosed, you will be entitled to your usual sick leave and pay entitlements, just like any other sickness and sickness absence.
If you are made redundant due to Covid-19 do you still have to be consulted by your employer?
When employers make over 20 employees redundant, they would normally have to consult for a period of 90 days before making redundancies. During the coronavirus, employers are likely to cite ‘special circumstances’ so that this consultation period could be compressed and employers will not have to consult for the full 90days. In our opinion, employers would still need to consult employees, but for a reduced number of days. Failure to do so would be procedurally unfair dismissal.
Where less than 20 people are being made redundant, your employer has a duty to consult. Despite not being defined by statute, generally, this would include meetings and an opportunity for you to make reasonable input into the decision.
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.
Where your employer does not respond, 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).