Coronavirus (COVID-19) Key employment issues for charities

In addition to these specific FAQs we've also put together a general document applicable to all organisations:

What is the Coronavirus Job Retention Scheme (JRS)?

In March, the Government announced details of the coronavirus (Covid-19) Job Retention Scheme and this will be of interest to employers.

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

Eligible UK employers will be able to access government support to continue paying their employees who would otherwise have been laid off because of the coronavirus crisis – designated employees will be “furloughed workers”. HMRC may fund up to 80% of the furloughed worker’s wages, subject to a cap of £2,500, the employer may agree to pay to “top up” the balance due to the employee.

It is also important to remember that normal employment rules still apply so there is still an obligation to consult, and collectively consult. The scheme’s details are complex and Stone King is happy to advise employers. Full details of the scheme can be found at: Claim for wage costs through the Coronavirus Job Retention Scheme.

A period of furlough must be for at least three weeks in one continuous block, you are able to place employees on furlough more than once however each block must be the minimum of three weeks.

In May, the Chancellor of the Exchequer announced that the scheme will operate until October 2020 with the above parameters applying until the end of July, with further developments announced for the period of August to October. We anticipate that part-time furloughing and a higher contribution from employers will be implemented but that has yet to be confirmed.

What is furlough?

Furlough has no legal definition in English law, but the Government describes it as a temporary suspension of employment for a specified period of time during which employees do not receive wages, put in place as a result of coronavirus.

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).

What do I need to do if I want to use the JRS?

If you wanted to take advantage of the scheme you would need to designate employees as those being put on furlough leave. If you don’t have a lay-off clause in your contracts of employment, you would need to propose furlough and then consult with staff with a view to obtaining their agreement. This is because furlough amounts to a change to the contract of employment, and an employer should not make unilateral changes to the contract. The process to follow is:

  • Decide which employees to designate as furloughed employees while bearing in mind discriminatory criteria for selection.
  • Notify those employees of your proposal to furlough them and start consultation, including with trade unions if they are recognised.
  • Agree the change with the employees. Contracts in charities are unlikely to include clauses to allow employers to reduce pay or not provide them with work with express agreement. However, given the stark alternatives that may be on offer (namely redundancy), we would anticipate that many employees will agree to the change.
  • Confirm the employees' new status, along with any further confirmation as to arrangements. It is important that the employees do not carry out work while they are furloughed. It is worth considering setting a period for review.
  • You will need the employee’s agreement in writing, this can be by signing the letter confirming the changes to their terms and conditions. Collective agreements between employers and trade unions (if applicable) are also acceptable. The records must be kept for five years.
  • Liaise with HMRC about the employees that have been furloughed and their earnings through the new online portal.
What can furloughed employees do?

They may carry out voluntary work but not for their employer, or a linked or associated organisation. 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.

Do I need to give notice to bring people back from furlough?

No. They are your employees and can be required to return to work at any time. If they are volunteering, then they will have to cancel their volunteer agreement to return to work. However, you do need to be cautious that the furlough period must be a minimum of three weeks.

Is there any support for self-employed people?

If you use self-employed contractors in your charity you should direct them to the guidance which was produced on 26th March 2020.

Are there any changes for volunteers?

Volunteers aren’t paid for their time but should be paid for any out-of-pocket expenses. These expenses could include:

  • Travel.
  • postage and telephone costs if working from home.
  • essential equipment, such as protective clothing.

Volunteers should provide receipts for any expenses they incur.

If a volunteer receives any type of reward or payment other than expenses, they may see this as a salary and they could be classed as an employee or worker. This then potentially gives them some employment rights.

Has anything changed regarding recruitment and checks?

Yes. For those working in the sector where safeguarding is relevant, to ensure that the necessary DBS checks can still be carried out the DBS standard and enhanced ID checking guidance has changed for a temporary period.

The change will enable:

  • ID documents to be viewed over video link.
  • scanned images to be used in advance of the DBS check being submitted.

The applicant will be required to present the original versions of these documents when they first attend their employment or volunteering role. The change came into effect from 19 March 2020.

Are there any other particular updates on safeguarding?

At the moment the guidance for Trustees, Employees and Volunteers remains the same; it was last updated in October 2019.

Clearly many organisations will have an influx of volunteers and these safeguarding measures should still be followed.

Should I be concerned about the Health and Safety of staff currently working on site?

From a health and safety point of view the legal position is that under the Health and Safety at Work Act, employers are required to ensure “as far as is reasonably practicable” the health, safety and welfare of their employees. In short, charities should risk asses the arrangements that they have in place to ensure as far as possible the risks are mitigated. Charities are not going to be able to eliminate the risks, but they may reduce them by taking measures such as:

  • Ensuring employees are 2 metres apart at all times.
  • Arranging for visitors to remain 2 meters away.
  • Distancing people when working at other external settings.
  • Having hand sanitisers, tissues and a bin available.
  • Consider the use of personal protective equipment where appropriate.
What is current guidance in relation to self-isolation?

The most recent government advice is that anyone who develops a persistent cough or fever should self-isolate for a period of fourteen days, along with their household.

  • Do charities need to pay staff who are self-isolating or social distancing?
  • Can work be given to the member of staff while they are away from work?

In relation to self-isolation and social distancing, much depends on the employee’s contract and whether they are willing and able to work from home.

Statutory sick pay (SSP) is paid to employees unable to work due to sickness and is currently payable by employers. The Government has introduced new measures in light of coronavirus which include:

  • SSP to be paid from the first day an employee is off sick (rather than the fourth day).
  • SSP for “all those who are advised to self-isolate”, including the asymptomatic employee.
  • SSP will be temporarily reimbursed to all SMEs for coronavirus-related absences for up to 14 days.

The Coronavirus Bill provides that these new measures will retrospectively effect for SSP already paid by employers in relation to periods falling on/after 13 March 2020.

Can an employee take time off to look after their children?

An employee who is not sick with coronavirus can take time off work to look after dependents. This provision is intended for short periods of absence and there is no statutory right to be paid. There may be a contractual right to pay in this circumstance, if provided for in the contract of employment or employee handbook. The current guidance confirms that an employee who is absent due to caring duties resulting from coronavirus, including looking after children, can be furloughed.

What advice do you have about working from home?
Set boundaries
  • Keep as far as possible to your normal routine, so get up, have breakfast and get ready for work as if you were leaving the house.
  • Take regular breaks and don’t feel guilty! This is what you should do at work so why should this be any different at home?
  • Switch off your laptop or tablet at the end of the day and ideally tidy it away if you don’t have the benefit of an office where you can shut the door.
Think about your environment
  • As far as possible set up a fixed workstation where the height of the desk and chair is an ergonomic fit and lighting is suitable. Check out NHS guidance.
  • Avoid working from places where you would normally relax such as your sofa or bed.
  • Make sure you have plenty of fresh air – as the days get warmer open the windows and let in some natural sunlight.
Connecting with others – but be careful with social media
  • Obviously, we will continue to connect with others via email, but consider making a video call, instead. Some may feel this is a little intrusive, but you can always drop an instant message or email saying “free for a video call in 5 mins?” Physically seeing the person you are speaking to on a screen helps us to connect more and we can receive feedback from non-verbal as well as verbal communication. One approach our team has taken is a daily 10 – 15 minute “coffee break” via video conferencing enabling us to have some informal coffee break chit chat.
  • Take the same opportunity to connect informally with people as you would if you were face- to-face, checking how people are and allowing people the opportunity to offload akin to those “water cooler” chats. WhatsApp groups can be a great way of achieving this.
  • Remember that some colleagues may have increased anxieties about friends and family more at risk of becoming very unwell as a result of the virus, so we need to support one another and show that we care.
  • Whilst some of us may use social media as part of our work routines, personal social media use can be seen as having a negative impact on our mental wellbeing. Consider limiting personal use of social media until the evening or during lunch breaks.
Wellbeing
  • Use that commuter time to do something positive to aid your wellbeing, such as taking some exercise in the morning to get your brain ready for the day. Perhaps do an exercise video or go for a run (social distancing permitting), or simply go outside to breathe in some fresh air. Check out the NHS’s guide to a 10 minute workout or the NHS advice for laptop users.
  • Consider using commuter time to prepare healthier meals or snacks – helping you to choose healthier options.
  • Take the opportunity to get up and walk around, such as when you are taking a call.
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 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 who 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.

Where a staff member may be self-isolating or shielding, the employer will need to consider whether the use of annual leave is appropriate in the circumstance as the employee may not be able to rest or use the time for leisure as normally intended by annual leave.

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 (as of 11th May 2020) is that pregnant employees are in the category of clinically vulnerable and therefore should work from home where possible and as much as possible. Should they be required to return to work strict social distancing must be applied.

Can an employee be furloughed if 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.

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 the employee has still been able to carry out their role (i.e. working from home).

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.

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.

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