Coronavirus (COVID-19) Key employment issues for all organisations

If you are a business, charity, or school please see our additional guidance:

Which employees are eligible for Furlough?

To be eligible for furlough, selected employees must have been on the PAYE payroll on 19 March 2020 and can be on any type of contract including; full-time, part-time, agency and flexible/zero hours.

The scheme also covers employees who were made redundant since 28th February 2020 or resigned before or after 28th February 2020, if they are rehired by their employer.

Employees who are working on reduced hours or for reduced pay are not eligible as they are still carrying out work for the organisation.

Employees on sick leave or self-isolating should get Statutory Sick Pay but can be furloughed after their sickness absence ends along with those who are shielding in line with public health guidance.

Can employees take annual leave/holiday during Furlough?

Yes. However, this should be paid at full rate as opposed to the 80% payment through the scheme. Organisations can still claim for the 80% through the Job Retention Scheme if their staff are on furlough leave.

Can employers ask staff to take or cancel holiday?

Yes, employers have the right to tell employees when to take holiday. If the employer decides to do this, they must tell staff at least twice as many days before as the amount of days they need people to take.

For example, if they want to 5 days leave to be taken, they should tell the employee at least 10 days before the leave is due to start.

Employers can also cancel pre-booked paid holiday. If they decide to do this, they must give staff at least the same number of days’ notice as the original holiday request.

For example, if an employee has booked 5 days holiday, the employer must tell them at least 5 days before the holiday starts that it’s cancelled.

This could affect holiday staff have already booked or planned and cause upset. So employers should:

  • explain clearly why they need to do this
  • try and resolve anyone's worries about how it will affect their holiday entitlement or plans
Can holiday be carried over?

If it is not possible for an employee to take their annual leave entitlement because of the coronavirus outbreak, they are legally entitled to carry this forward into the next 2 holiday years. However, this only applies to the statutory 4 weeks, not the additional statutory leave or contractual entitlement.

What about pregnant employees?

Employers cannot force an employee to start maternity leave early unless they are absent from work “wholly or partly because of pregnancy” after the beginning of the fourth week before expected date of birth.

The government advice is that pregnant employees should shield and therefore are entitled to be furloughed. If an employee doesn’t qualify for furlough, then sick pay should be considered. However, to avoid any discrimination issues full pay should be heavily considered.

What happens with new employees who TUPE in to a business after the 19 March 2020?

The current guidance confirms that where an employer receives employees because of a TUPE transfer after 19 March 2020 then those employees can be furloughed. This is the case even though the employees will not have been on the employer’s payroll at that date.

Can an employee be furloughed if they are on maternity leave, or other family-related leave?

It is currently not clear if an employee can be furloughed while they are on maternity leave, or other family-related leave. Guidance published by HM Revenue and Customs (HMRC) on the Coronavirus Job Retention Scheme states that: "Employees still have the same rights at work, including...maternity and other parental rights." It goes on to say that, where employers pay enhanced contractual maternity, adoption, paternity or shared parental pay, they can claim for this under the scheme. It does not say that the employee would have to bring their maternity leave to an end and be placed on furlough for the employer to be able to claim these wage costs, so it may be that employees can be designated as furloughed while on maternity leave.

When an employee is furloughed what can an employee do that may be ‘work-related’?

Employees cannot undertake work for or on behalf of the organisation where it includes providing services or generating revenue. However, should there be any training needs this can be undertaken.

Can I rotate which employees are furloughed?

Yes, the minimum period is three consecutive weeks however should an employer wish to avoid disputes over which staff are chosen to be furloughed, but needs to remain operational, then a rota can be put in place for three weeks at a time (minimum).

If an employee needs to stay at home to look after their children and are unable to work from home can they be furloughed?

An employee may be unable to work because they have no alternative childcare while the schools are closed during the coronavirus crisis. An employee in this situation would not normally have the right to paid time off (unless provided for in their contract of employment), so a period of furlough may be a potential solution for both employer and employee. Guidance published by HM Revenue and Customs on the Coronavirus Job Retention Scheme states that: "Employees who are unable to work because they have caring responsibilities resulting from coronavirus (COVID-19) can be furloughed. For example, employees that need to look after children can be furloughed."

Therefore, although the guidance states that the scheme is "designed to help employers whose operations have been severely affected by coronavirus", it appears that it will be possible to make a claim under the scheme for someone who is placed on furlough for reasons personal to them, eg caring responsibilities, rather than as a result of adverse economic effects on the organisation.

Employees under probation, can I extend due to Covid-19?

Yes, you can extend due to Covid-19 along with many other reasons however you should consider whether if the employee has still been able to carry out their role (i.e. working from home). You can contact Stone King for assistance in notifying an employee of an extension to probation period.

I have an employee on a fixed-term contract that is due to end in a furlough period, can I extend their contract?

Yes. Guidance published by HM Revenue and Customs on the Coronavirus Job Retention Scheme states that employers can choose to renew or extend a fixed-term contract that comes to an end during a period of furlough. The employer can continue to claim the lower of 80% of the employee's regular wages or £2,500 per month under the scheme.

The guidance does not require the employer to show there was a business need to keep the employee on.

Can apprentices be furloughed?

Yes, apprentices can be furloughed and employers can claim under the JRS. Apprentices can continue to train while furloughed and the employer will need to ensure the apprentice still receives national minimum wage for the time spent on training, this may mean a top-up of their salary after claiming on the scheme.

Government guidance states that where apprentices are furloughed, the apprentice, employer and training provider should consider whether a break in learning would be appropriate and if agreed as a formal break of four weeks or more must be reported to the Education and Skills Funding Agency.

Can an employee refuse to work due to their own health and safety concerns?

Under the Employment Rights Act 1996 (‘ERA’), employees are protected from dismissal and detriment on a number of health and safety grounds, including if they refuse to attend work due to health and safety concerns. These provisions are always important for employers to be aware of to avoid potential liability and are especially pertinent amid COVID-19, as many employers ask employees to return to the workplace.

Read more

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

The Legal 500 - The Clients Guide to Law Firms

UK Chambers logo

Best Companies - One to watch logo

Cyber Essentials Certification Logo