Employment Rights During COVID-19

What about my employment rights during COVID-19?

Your employment rights during COVID-19 have changed. With the Corona virus crisis (‘the crisis’) detrimentally affecting almost all businesses, this will be a very uncertain time for employees and the self-employed. Employment law is normally a fast-moving area of law, but it is now changing on a daily basis and it is important that you are aware of your rights.

We have outlined the following scenarios and advice:

I am still employed but my employer is proposing that go on unpaid leave.

If there is a proposal by your employer to keep you employed but not working, this will be deemed as ‘furlough leave’. Ordinarily people are not paid during furlough leave. However, on Friday the Chancellor announced a government package for those on furlough leave. The government will pay up to 80 per cent of wages, up to £2,500 a month, for people who are not working but kept on the payroll. The scheme will last for a period of 3 months but could be extended. This will be administered by HMRC in the form of a grant to your employer and will start in April 2020, but crucially any grant will be backdated to 1st March 2020, meaning you should be paid at the end of this month. The purpose of the scheme is to keep people in employment and avoid your employer having to make redundancies. You should not do any work for your employer whilst you are furloughed. In terms of the other 20% of your wages, you could ask your employer to pay this amount, but they do not have to.

My employer has dismissed me due to a downturn in business.

If your employer has dismissed you due to the crisis because they could not afford to keep you employed, you need to request that they re-hire you, as the scheme allows businesses to re-employ individuals who have already been laid off and for those workers to recoup lost income. You should get in touch with your employer ASAP and make them aware of this scheme and appeal any dismissal.

If you are dismissed and not re-hired, you still have certain rights. You will need to be paid your contractual or statutory notice period (whichever is the more favourable) and any holiday pay which has been accrued but not taken. If you have more than 2 years’ service you could bring a claim for unfair dismissal, as any dismissal would not have been in the range of reasonable responses by your former employer in consideration of the government wage subsidy.

My employer has made me redundant or is proposing to make me redundant.

Some employers have decided to make their staff redundant. As per above, you should ask your employer to continue keeping you employed rather than make you redundant, as they are able to access the government scheme.

If respect of any redundancy, if you have been employed at least 2 years, then you are entitled to redundancy pay. You should check your contract of employment and/or your company redundancy policy to find out about any enhanced redundancy pay. In any event, you will be entitled to statutory redundancy pay. The current entitlement is:

• half a week’s pay for each full year you were under 22.
• one week’s pay for each full year you were 22 or older, but under 41.
• one and half week’s pay for each full year you were 41 or older.

Length of service is capped at 20 years.

Your weekly pay is capped at £525 and the maximum statutory redundancy pay you can get is £15,750 (this will change to £538 (weekly) and £16,140 (maximum amount) from 6 April 2020).

Short-term and temporary lay-offs

You can claim statutory redundancy pay if you are eligible and you have been temporarily laid off (without pay or less than half a week’s pay) for either:

• more than 4 weeks in a row
• more than 6 non-consecutive weeks in a 13 week period

Write to your employer telling them you intend to claim statutory redundancy pay. This must be done within 4 weeks of your last non-working day in the 4 or 6 week period.

I am still employed but my employer has not paid my wages.

If you are still employed and working but your employer has not paid your wages, in the first instance, you should raise this with your employer and try to resolve the matter. Your employer will probably have cash flow issues. If you continue not be paid, this will almost certainly go to the root of your employment contract and entitle you to make a claim for an unlawful deduction of wages. You must commence ACAS early conciliation within 3 months less 1 day from the last date there was an unlawful deduction of payment.

I am self-employed and worried about my income.

The House of Commons Public Bill Committee has proposed an amendment to the Coronavirus Bill, entitled Statutory Self-Employment Pay.

If accepted it compels the government to introduce Regulations providing that “freelancers” (undefined) and “self-employed people” should receive guaranteed earnings of:

(a)  80% of their monthly net earnings, averaged over the last three years; or,

(b)  £2,917 per month

whichever is the lower.

The purpose of this amendment is to make the Government ‘top up’ self-employed workers’ earnings to the lower of 80% of their net monthly earnings or £2,917 a month.

The chancellor has announced that the following is also available for the self-employed:

• The Minimum Income Floor in Universal Credit (UC) will be suspended ‘for everyone affected by the economic impacts of coronavirus’. This means that self-employed people can now access Universal Credit at a rate equivalent to Statutory Sick Pay for employees (approximately £95 per week).
• ‘New style’ Employment and Support Allowance will be payable for people directly affected by COVID-19 or self-isolating according to government advice for from the first day of sickness, rather than the eighth day.
• People will be able to claim UC and access advance payments where they are directly affected by COVID-19 (or self-isolating), without the current requirement to attend a job centre.
• The next self-assessment payments will be deferred until January 2021.
• Introducing ‘Time to Pay’ arrangements – a time-limited deferral period on HMRC liabilities owed and a pre-agreed time period to pay these back – for businesses and self-employed individuals in financial distress and with outstanding tax
• HMRC has set up a dedicated COVID-19 helpline to help those in need, and they may be able to agree a bespoke Time to Pay arrangement. HMRC will also waive late payment penalties and interest where a business experiences administrative difficulties contacting HMRC or paying taxes due to COVID-19. 

I am self-isolating or on sick leave

Those who follow advice to stay at home and who cannot work as a result will be eligible for statutory sick pay (SSP), even if they are not themselves sick. Many employees will have contracts that allow them their normal pay while they are unable to work because they are sick.

Employees are entitled to time off work to help someone who depends on them (a ‘dependant’) in an unexpected event or emergency. This would apply to situations related to coronavirus (COVID-19). Your employer is not forced to pay you unless your contract requires it.

Anyone not eligible to receive sick pay, including those earning less than an average of £118 per week, some of those working in the gig economy, or self-employed people, is able to claim Universal Credit and or contributory Employment and Support Allowance.

Please remember that your employment rights have not diminished because of the crisis and in certain circumstances your rights have been enhanced. Employers cannot use this crisis to overlook your employment rights.

The situation is fast moving and it is likely that this article will be updated in the coming days. We urge you to stay fully informed about your employment rights during COVID-19.

If you need further advice and support please contact our offices.

Bodrul Amin

Employment Solicitor 

NA Law Solicitors