Coronavirus: Employee rights

In this coronavirus pandemic, there have been unprecedented affects on employees’ rights, including the right to get paid, and the right to health and safety.

If you want an overview of your coronavirus employment rights, then this article is for you.  If you are an employee and have been unfairly dismissed, or had your pay cut/stopped, because you’ve refused to attend an unsafe work place, read our separate article here.

Links to our other coronavirus material for employees are given throughout this guide and also at the end.

Furlough leave or Coronavirus Job Retention Scheme 

If your employer’s business has been affected by covid-19, the government’s Coronavirus Job Retention Scheme, also known as ‘furlough leave’, has been able to help. 

Under the scheme, your employer could let you stay at home from March to the end of August 2020, knowing that the government would pay them for 80% of your salary, up to a maximum of £2,500 per month.  Payments have now reduced to 70% for September 2020 and 60% for October 2020. 

It is important for you to note that your employer should have agreed with you, in advance, about 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). 

They couldn’t just put you on the scheme without your agreement, although they could make you redundant if you didn’t agree.

There is more detailed information and tactics for employees about this in our practical guide on the furlough scheme.

 

Help for self employed affected by coronavirus

Our article on the government scheme for the self employed outlines the scheme in more detail, but to summarise:  

A first grant was available worth 80% of average monthly trading profits and capped at £7,500 total.  It was available until 13th July 2020.

A second grant worth 70% of average monthly profits, capped at £6,570, can be applied for between 17th August and 19th October 2020.

Can I be forced to attend work if vulnerable or living with someone who is?

If you are pregnant, old, or suffer from a disability or ill-health which your employer already knows about, then it’s to be hoped that your employer would be  receptive to proposals for you to work remotely where possible.  

If you are living with someone in one of the above categories, and your employer is still forcing you to come to work, then they could be breaking the law.

Whilst the law on this is not yet entirely clear in relation to covid-19,  we advise that it could be unlawful for your employer to insist on your attending work because by doing so they may be subjecting you to one or other of the following:

constructive dismissal or

discrimination relating to pregnancy, age or disability,  or

 -breach of health & safety law

 

Can I be dismissed for self isolating/staying off work?

No! Your employer might be allowed to discipline you, but they can’t legally dismiss you. If they tried to, it would amount to automatically unfair dismissal under s.100 Employment Rights Act 1996.

There is a case about this kind of dismissal between Harvest Press Ltd & McCaffrey 1999 ILRL 778.  It doesn’t of course relate directly to the coronavirus, but it is a good example of automatically unfair dismissal.  

Read our more detailed guide on coronavirus unfair dismissal here.

 

Could my employer reduce my salary?

Your employer could reduce your salary if they are justified in doing so. During these times of coronavirus, we are seeing employers telling employees to take a pay cut. Is that constructive dismissal? Can you refuse? If other people are also being asked to take a pay cut too, then it would be easy for your employer to justify it.

They could simply give you your notice and give you another contract of employment with the lower pay.  Then they could tell you that if you don’t agree to work on the new contract, your employment would end when your notice period was over.

 

Am I entitled to pay when self isolating?

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. 

If you are a vulnerable person, for example old or with underlying health conditions, then again, the current legislation does not entitle you to SSP.  Still, we would advise you to get an isolation note online on the NHS 111 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.

This latest legislation is contained in The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020.

 

See also our article on unfair dismissals due to coronavirus unsafe workplaces

Should I get paid if my employer tells me to stay off 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.  Millions of employers have been helped to achieve this by the government’s furlough leave scheme (see above).

(See S151 Social Security, Contributions and Benefits Act 1992 and S147-154 Employment Rights Act 1996 for relevant legislation)

 

What are my rights if I take time off to care for dependents?

In April 2020, the government extended the Coronavirus Job Retention Scheme (see above) to people with childcare responsibilities caused by covid-19 restrictions. This was great news for parents and carers, but has had to be agreed with your employer, as furlough never has been an automatic right.

So, what are your automatic rights? Well they are set out in the pre-existing legislation, Section 57A-57B Employment Rights Act 1996 . According to the legislation, 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 provider can’t operate because of the covid-19 restraints.

The time off is unpaid, unless you have an employment contract or insurance policy which 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.

Undoubtedly the coronavirus crisis does count as an emergency, but what is ‘reasonable’ has yet to be legally tested.  Your first port of call should be asking for full pay if you did not manage to get placed on the government’s  furlough leave scheme before it closed to new entrants in June 2020.

 

If I get coronavirus, will I get sick leave and pay?

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.

(See S151 Social Security Contributions and Benefits Act 1992)

 

If I am made redundant due to covid-19 does my employer still have to consult me?

When intending to make over 20 employees redundant in any one 90 day period, your employer normally has to consult for a minimum number of days before dismissing you, as follows:

 

Number of redundancies Minimum consultation period
20 to 99 30 days
100 or more 45 days

 

If your employer fails to consult as above, then that would be procedurally unfair dismissal.

If less than 20 people are being made redundant, then your employer also has a duty to consult you. This duty is not defined by statute, but would generally include more than one meeting, and a chance for you to make some reasonable input into the decision. See our guide on redundancy for further details.

 

If I have been laid off because of coronavirus and want to leave, 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 statutory redundancy pay.

 

Phials containing liquids and coronavirus label

Next steps

If you think your employer is unfairly treating you because of your absence or pay relating to coronavirus situations like those outlined above, Monaco Solicitors may be able to help.

In addition to our various relevant guides (see list below), you can also access our free coronavirus employment rights app which generates a written advice letter for you, plus a template letter addressed to your employer.

If you think you need a lawyer to take your case, including on a no win no fee basis, please request a free consultation.

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