Covid-19 summary of key legal and regulatory changes for employers

We are living through uncertain and rapidly changing times and, in recognition of this, in recent weeks the government has introduced a package of emergency measures to support employers and their staff throughout the period of disruption. This has resulted in new legislation, the Coronavirus Act 2020, and amendments to existing law and regulatory guidance.

After the initial flurry of new guidance, it is now sensible to take a step back and consider the impact of the changes. We thought it would be helpful to provide an overview of the key legal and regulatory changes that schools should be aware of.

This note is correct as at 5 April 2020.

Statutory Sick Pay (SSP)

The government has extended SSP on a temporary basis to cover individuals who are not ill but are unable to work because they have been advised to self-isolate in line with government guidance.

SSP will also be payable from day 1 instead of day 4 for affected individuals.

Those not eligible for SSP (e.g. individuals earning below the Lower Earnings Limit or self-employed) can now more easily make a claim for Universal Credit or Contributory Employment and Support Allowance.

The government plans to help small and medium-sized businesses and employers (i.e. those with fewer than 250 employees) cope with the extra costs of paying coronavirus-related SSP by refunding eligible SSP costs.

Coronavirus Job Retention Scheme and furlough leave

Announced by the government on 20 March 2020, the scheme is intended to help employers pay the wages of staff who would otherwise be laid off without pay or made redundant as a result of the coronavirus crisis.

In summary, the scheme affords all UK employers, regardless of size or sector, the ability to claim funding from HMRC to cover 80% of the wage costs of its furloughed employees (employees who are not working at this time but are kept on the payroll), of up to a maximum of £2,500 per calendar month, for each employee.

Further details on the scheme and furlough leave are available here. We have also prepared a note setting out the questions that we are frequently being asked by schools with regard to the scheme and furlough leave, and our answers to these questions can be accessed here.

On 4 April 2020, the government updated its guidance to provide clarity. In particular the updated guidance has confirmed that:

• furloughed workers are able to start new jobs whilst on furlough
• employees that are dismissed (for any reason) prior to 28 February 2020 can be rehired and be furloughed
• “limb (b) workers” can be furloughed, provided they are paid through PAYE.

On behalf of the ISBA, we have prepared a template furlough letter, FAQ document and an accompanying guidance note, which can be accessed in the ISBA Library.

We recommend that schools refer to the government guidance regularly and take legal advice when considering furlough.

Self-employment Income Support Scheme

The government has also introduced a similar scheme to support self-employed individuals or members of a partnership during the pandemic.

Eligible self-employed workers will be entitled to receive a grant once every three months, at a rate of 80% of the average profits from the tax years (where applicable) 2016-2017, 2017-2018 and 2018-2019, or £2,500 for each three months.

HMRC will be contacting eligible workers directly to invite them to apply for the scheme online.

Further information about the self-employment income support scheme, including eligibility requirements can be found here.

Carry-over of holiday

The government is set to amend the Working Time Regulations (Regulations) to allow employees to carry over up to four weeks of unused annual leave (i.e. leave under the Working Time Directive) into the next two leave years, if it is not “reasonably practicable” for them to take some, or all, of the holiday to which they are entitled, “as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society)”. Detail has not been provided on how to determine when coronavirus means it is not practicable to take holiday, but we anticipate that this is likely to be a low hurdle to overcome.

As well as extending the carry-over period, the change means that:

• If a worker’s employment or engagement is terminated during the two-year period, any payment in lieu of holiday must include a payment in lieu of holiday carried over under these provisions.
• Employers continue to have the right to refuse permission for a worker to take leave on particular days (provided they give notice which is at least as long as the holiday requested). However, under the new Regulations, they can only exercise this right where there is “good reason to do so”.

Right to work checks

To assist employers, interim guidance has been published to temporarily vary the process for establishing right to work during the coronavirus pandemic.

From 30 March 2020, employers should:

• Ask the individual to submit a scanned copy or a photo of their original documents by email or using a mobile app.
• Arrange a video call with the individual and ask them to hold up their original documents to the camera so that they can be checked against the digital copy they have been sent
• Record the date they conduct the check and note “Adjusted check undertaken on [insert date] due to Covid-19″ on a copy of the documents.
• Contact the Home Office’s Employer Checking Service if the employee cannot provide proof of their right to work.

The full guidance can be accessed here.

Emergency volunteering leave

On 25 March 2020, the government introduced a new temporary form of statutory unpaid leave for employees and workers wishing to volunteer to support essential health and social care services during the coronavirus outbreak.

Staff who sign up to volunteer must give their employer at least three working days’ notice and produce an emergency volunteering certificate stating that they have been approved as an emergency volunteer by an appropriate authority (such as the NHS).

The leave can be taken in blocks of two, three or four consecutive weeks in any volunteering period of 16 weeks. Initially, there will be one 16-week volunteering period, which began on 25 March 2020.

Employers (except those with 10 employees or less) cannot refuse a request by an individual to take leave in accordance with the scheme.

Volunteers will be afforded certain rights and protections. They will continue to benefit from all of their terms and conditions of employment (except in relation to pay) and have the right not to be subjected to a detriment for having taken emergency volunteering leave.

The government has committed to establishing a compensation scheme to compensate eligible volunteers for some loss of income and expenses incurred.

Safeguarding in schools and colleges

On 27 March 2020, the DfE published interim safeguarding guidance for schools and colleges to cover the period of uncertainty during the coronavirus pandemic.

The guidance is intended to supplement, and not replace, Keeping Children Safe in Education 2019.

The key message from the guidance is that whilst schools are currently operating differently in response to coronavirus, a number of important safeguarding principles remain the same:

• With regard to safeguarding, the best interests of children must always continue to come first.
• If anyone in a school has a safeguarding concern about any child they should continue to act and act immediately.
• A DSL or deputy should be available at all times (whether in person, or by phone).
• It is essential that unsuitable people are not allowed to enter the children’s workforce and/or gain access to children.
• Children should continue to be protected when they are online.

We have prepared a guidance note for the ISBA summarising the key aspects of the interim guidance which can be accessed here.

The full guidance can be accessed here.

Working from home; data security

Having to implement homeworking for the first time or to a much larger extent than normal can leave a school’s IT systems vulnerable to attack. The National Cyber Security Centre (NCSC) has released guidance to help organisations reduce the risk of a cyber-attack on homeworking devices. There are also some top tips for staff about avoiding phishing scams.

The guidance can be found here.

Government guidance for employers

The government guidance for employers on coronavirus is a useful resource which is regularly updated. We recommend that schools frequently review the guidance. It can be accessed here.

Government guidance for schools

The government has produced tailored coronavirus guidance for schools which are regularly updated. The guidance can be accessed from the index page here. We recommend that schools frequently review the guidance, or sign up for the email alerts if not already done so. You can sign up here.