Coronavirus (COVID-19): Advice and guidance for small businesses and the self-employed

The Chancellor has announced that the Government’s Coronavirus Job Retention Scheme will remain open until the end of October. There remains no changes to the current scheme, but from August the Government will announce changes to get employees back to work and boost

Full details from the Government here

Employees will still be entitled to receive 80% of their salary (less the usual income tax and National Insurance deductions) up to a cap of £2,500 under the extension of the CJRS until October 2020 (unless further extended beyond that date). We await further details but it would appear that employer payments made to employees whilst they are working will substitute the grant either totally or partially but employees will continue to receive 80% of wages through the grant for periods not working under the CJRS. Employers should bear in mind that employees are entitled to receive at least the National Minimum Wage rate for work carried out or for compulsory training. This will need to reflect the April 2020 increase in the National Minimum Wage/National Living Wage rates.

HMRC has published guidance for small businesses planning to claim the wages of furloughed employees through the Coronavirus Job Retention Scheme. Use the links below to check your eligibility and find out what information you'll need to make a claim. 

HMRC Guidance: 

Check if you can claim for your employees' wages through the Coronavirus Job Retention Scheme.

Work out 80% of your employees' wages to claim through the Coronavirus Job Retention Scheme. 

Claim for your employees’ wages through the Coronavirus Job Retention Scheme (CJRS) - A step by step guide for employers.

Apply for the scheme at:

Claim for wages through the Coronavirus Job Retention Scheme or login directly using the Government Gateway

As an employer, you can’t legally withdraw your employees from any pension scheme. You must follow the opt out rule. Employees themselves must confirm in writing if they wish to take a break from paying into their pension, whether short-term or indefinitely.  The employee will then be marked as having left the scheme. You are not allowed to encourage or force employees to opt out of the scheme.

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If your business is no longer able to operate, you can furlough the apprentice(s) who have been on your PAYE payroll scheme on or before 19 March 2020 and claim the wages under the Government’s Coronavirus Job Retention Scheme. To be eligible for the scheme, the apprentice(s) cannot undertake work for or on behalf of the organisation.  Apprentices hired after 28 February 2020 cannot be furloughed or claimed for in accordance with this scheme. The scheme will be open to employers for at least three months starting from 1 March 2020. You will be able to claim for 80% of furloughed apprentices’ usual monthly wage costs, up to £2,500 a month, through a HMRC online portal. The portal is expected to be available at the end of April 2020.  

What happens to apprentice who has been made redundant?

If an apprentice has been made redundant, they can continue their apprenticeship and proceed to their end-point assessment where possible. Training providers may be able to find alternative employment for them to continue their apprenticeship. If you are an FSB member and considering dismissing an apprentice by way of redundancy please contact FSB’s employment helpline for advice.

What happens to apprentices’ training?

Apprentices and training providers are encouraged to make use of online training and distance learning tools. Where providers can continue to deliver training remotely, furloughed apprentices can continue their training and therefore their apprenticeships whilst furloughed, as long as it does not provide services or generate revenue for their employer. If you have placed the apprentice on unpaid leave, you should consider a break in learning together with the apprentice(s) and training provider. If there has been a disruption in learning for less than four weeks, you do not need to report the interruption and there is no change to the funding payment for training. If the break is for more than four weeks, you and/or training provider must report a formal break in learning. Once the apprentice is back at work, they can resume their apprenticeship.

If you are using the digital apprenticeship service, then you can ‘pause’ the apprenticeship on the service at the point when the break in learning starts. This will suspend the payment of funding to the training provider for the duration of the break. You must not ‘stop’ the apprenticeship through the apprenticeship service as this will not permit to resume the apprenticeship subsequently.  You must only use this function when you are certain that training will not resume at any point. 

What happens to apprentices’ assessment?

Apprentices who are ready for assessment but cannot be assessed because of the coronavirus crisis, will be able to have their end-point assessment rescheduled.

Department for Education has a coronavirus helpline if you have any further questions: 0800 046 8687. Lines are open Monday to Friday from 8am to 6pm and weekends 10am to 4pm.

Employers have a duty under health and safety legislation to take steps to ensure the health, safety and welfare of all their employees, so far as reasonably practicable, including those who are particularly at risk for any reason. Employees also have a duty to take reasonable care of their own health and safety and that of people they work with. They must cooperate with their employer to enable it to comply with its duties under health and safety legislation. Employees who refuse to cooperate, or who recklessly risk their own health or that of others in the workplace, could be disciplined where this is appropriate. Where, for example, employees attend work but the employer reasonably believes the employee has symptoms that would require them to self-isolate in accordance with current public health advice (i.e. where they have a new persistent cough and/or high temperature), it is likely that the employer has a duty of care towards other staff to require the employee displaying those symptoms to stay at home and self-isolate for a period of 7 days or 14 days where applicable. Employees will be entitled to SSP in this scenario under new temporary SSP Regulations (see below). Alternatively, where employees are fit enough to carry out some work whilst self-isolating at home and it is practicable for them to do so, employees would be paid their normal wages for the period they are carrying out work.

Currently, the government’s advice is that where employees with symptoms of the coronavirus have attended work, employers do not need to take any special measures such as sending other staff home, closing the workplace or deep cleaning the workplace. This guidance is subject to change.

In respect of employees who have attended the workplace and who test positive for coronavirus, the employer will be contacted by the relevant local Health Protection Team to identify those who have been in contact with the employee and to discuss any special measures for the employer to take.

The virus should be approached like every other disease. Some employers (particularly in higher risk industries, such as healthcare) may already have in place disease control risk assessments. For individuals that have been in contact with suspected cases, no restrictions or special control measures are required while laboratory test results for Covid-19 are awaited. For those that have been in contact with confirmed cases of Covid-19, the advice on undergoing a period of 14 days of self-isolation applies. Where employees have been in contact with confirmed cases of Covid-19 or it is reasonably suspected that they have been, they will be entitled to receive statutory sick pay (SSP) during their absence from work, subject to meeting the eligibility criteria for SSP.  

Employers may choose to go further than the advice from the Public Health bodies and, as a precautionary measure, ask require employees to stay away from work when they are not sick or are not self-isolating in accordance with current Public Health advice, or where employers cannot put in place measures to ensure, so far as reasonably practicable, the health and safety of certain employees in their workplace. In those cases, employers will need to pay employees their normal salary for this absence. This is because the absence is at the employer’s request and is not sickness absence.

Alternatively, employers may choose to ask employees to work from home if this is an option in which case, of course, they would receive their usual pay. Where employees are furloughed under the Coronavirus Job Retention Scheme, employers are required to pay employees at least 80% of their wages under the Scheme.

The latest Government advice on self-isolation can be read at the gov.uk website

Previous government advice was that individuals returning from category 1 areas/countries should self-isolate for a period of 14 days from their return even where symptomless, with those returning from a category 2 area being required to self-isolate for 14 days only where they develop symptoms of the coronavirus. This advice has been replaced by the current advice on self-isolation:

• Anyone who develops a high temperature (37.8 degrees and above) and/or a new, continuous cough must self-isolate for 7 days, but if you live with others, you must self-isolate for 14 days. They must stay at home and avoid all but essential contact with others for 7 days, or 14 days in a family or shared home, from the point of displaying those symptoms, to slow the spread of infection.
• Individuals do not need to call NHS 111 to go into self-isolation. Where their symptoms worsen during home isolation or are no better after 7 days, they should contact NHS 111 online at 111.nhs.uk. For individuals without internet access, they should call NHS 111. For a medical emergency they should dial 999.
• In Scotland, individuals should phone their GP or NHS 24 on 111 out of hours. Individuals in Northern Ireland should call 0300 200 7885.

Additionally, the government has advised schools to cancel trips abroad and for people over 70 with pre-existing health conditions not to go on cruises.

The household isolation instruction as a result of coronavirus does not apply if you need to leave your home to escape domestic abuse. If you or your staff are concerned about domestic abuse during the coronavirus (COVID-19) outbreak the government have issued guidance on how to get help if you are a victim of domestic abuse.

The Coronavirus Statutory Sick Pay Rebate Scheme is now live. This allows employers to claim Statutory Sick Pay (SSP) paid to employees unable to work because they either have coronavirus or cannot work because they are self-isolating at home. 

Check if you can claim back SSP and how to apply here

Employees who develop symptoms of the coronavirus or symptoms which require self-isolation will of course be unfit for work. They will be entitled to SSP subject to meeting the qualifying criteria.

Temporary Reform of the SSP Rules

In response to the coronavirus outbreak, new Regulations known as The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2000 came into force on 13 March 2020.  These will remain in force for a period of 8 months. These Regulations amend the Statutory Sick Pay (General) Regulations 1982 and provide that:

• Individuals who self-isolate to prevent infection or contamination with coronavirus disease in accordance with guidance published by Public Health England, NHS National Services Scotland or Public Health Wales (i.e. advice from the public health bodies in Great Britain) and are unable to work for that reason will be entitled to SSP.

Equivalent legislation has been passed in Northern Ireland with effect from 12 March 2020 where employees are self-isolating in accordance with guidance published by the Regional Agency for Public Health and Social Well-being (i.e. the public health body in Northern Ireland).

In other words, this extends the current entitlement to SSP to those employees who are self-isolating for 7 days in accordance with Public Health advice due to having a fever and/or new persistent cough. This is subject to employees meeting the qualifying criteria for SSP.

For SSP purposes, the employer cannot require a medical certificate for the first seven calendar days of sickness absence.  If employees need to provide evidence to their employer that they need to stay at home due to coronavirus, they will be able to get it from the NHS 111 Online instead of having to get a fit note from their doctor.

These Regulations have been passed in order to encourage self-isolation and to minimise the risks to public health arising from coronavirus disease.

It was announced in the Budget on 11 March 2020 that further reforms to the SSP rules will be introduced as follows. These reforms are set out in the Coronavirus Bill which is set to come into force at the end of March 2020 and applies across the UK (including Northern Ireland). These new measures (once enacted) are as follows:

• People who cannot work due to coronavirus and are eligible for SSP will get it from day one, rather than from the fourth day of their illness (i.e. the 3 waiting days for SSP will be removed). The Coronavirus Bill provides that this will apply retrospectively from 13 March 2020 i.e. from the introduction of the new requirements around self-isolation for fever and cough symptoms and the further public health advice requiring self-isolation for 14 days for those who live with someone who has developed symptoms.
• The Government will reimburse small and medium employers (i.e. those employing fewer than 250 employees, as determined by the number of people they employed as of 28 February 2020) any statutory sick pay they pay to employees for the first 14 days of sickness as a result of coronavirus.

• Under the new rules, employers should maintain records of staff absences, but should not require employees to provide a GP fit note.  
• As the Percentage Threshold Scheme which previously permitted small businesses to reclaim SSP from the Government was abolished in 2014, the government will set up a new repayment mechanism for employers for reclaiming SSP in due course.

For individuals who are not entitled to SSP, such as the self-employed and those that fall below the Lower Earnings Limit, a ‘new style’ Employment and Support Allowance through the welfare system will be payable for people directly affected by coronavirus or who are self-isolating according to government advice, from the first day of sickness or self-isolation.  Those individuals may also be entitled to Universal Credit.

Emergency Voluntary Leave

Recently retired health care and social care professionals (i.e. those whose registration to practice has ceased within the last 3 years), including retired doctors, nurses and midwifes, will be contacted by the National Medical Council and The Nursing and Midwifery Council to re-register with them on a voluntary basis in order to practice.  Under the new legislation to be introduced under the Bill, employees will have the statutory right to take Emergency Voluntary Leave in blocks of 2,3 or 4 weeks’ statutory unpaid leave. Those who take the leave will be entitled to a payment from the government to compensate for loss of earnings and expenses to be paid at a flat rate for those who volunteer through an appropriate authority. Employees who take the leave will be protected by employment legislation from dismissal or any other detriment as a result of taking the leave. They will remain employed for the duration of their leave (and will continue to accrue statutory rights, such as annual leave whilst on leave). They will have no right to remuneration from their employers during the period of leave. They will have the statutory right to return to their roles at the end of their leave.  Employers that employ those categories of retired professionals will need to permit employees to take this leave any accommodate any subsequent staff shortages. 

Contractual Sick Pay

Employers that offer enhanced contractual sick pay over and above SSP rates, should consider whether or not they will revise their contractual sick pay eligibility criteria for contractual sick pay or exercise discretion to include employees who are self-isolating as a result of coronavirus but not unwell, or whether to pay SSP only in this circumstance. Employers considering amending their enhanced sick pay schemes as a financial measure (including on a temporary basis) in view of the likely increase in staff sickness levels due to coronavirus and the new Government guidance on self-isolation (particularly in relation to self-isolation now being for up to 14 days) should bear in mind the following points: 

• Employers with discretionary sick pay schemes whereby the employer operates the SSP scheme but may exercise their discretion to pay more than SSP in any particular case must exercise their discretion fairly and reasonably and not arbitrarily or capriciously. In particular, to maintain mutual trust and confidence, the employer should ensure consistency in their decision making and must not discriminate against a particular employee because of their disability.

• Employers with contractual (enhanced) sick pay schemes can only lawfully change the criteria for payment (including on a temporary basis during the coronavirus outbreak) with employees’ agreement, or in accordance with any contractual flexibility clause.  This means that a failure to make a payment in accordance with the rules of the scheme would amount to a breach of contract and, depending on whether the breach is sufficiently serious or not, it may entitle the employee to claim constructive dismissal (in the latter case, subject to the employee having at least 2 years’ service, or 1 years’ service in Northern Ireland

In England, schools have been asked by the government to begin phased openings from 1 June 2020. School closures and the closure of businesses providing childcare, except for the children of key workers and for vulnerable children have inevitably impacted on childcare arrangements and employees’ ability to work. It is also likely to be more difficult for employees to find replacement childcare cover due to more limited childcare provision as schools and childcare providers only remain open for key workers and for vulnerable children. Elder care arrangements may also be adversely affected.

Section 57A of the Employment Rights Act 1996 gives employees the right to a reasonable amount of unpaid time off work because (amongst other reasons) of the unexpected disruption or termination of arrangements for the care of a dependant. This includes where employees have children they need to arrange childcare for because their child’s school is closed, or to arrange care for their child or another dependant if they’re sick, or need to go into isolation.

An employee may complain to an Employment Tribunal where their employer has failed to permit them to take time off under this provision. Employees also have the right not to be subjected to any detriment for reasons relating to time off for dependants and any dismissal on these grounds is automatically unfair, regardless of the length of the employee’s employment.

Government guidance on the Coronavirus Job Retention Scheme states that employees who are unable to work due to caring responsibilities, or who are required to shield as a result of the coronavirus epidemic are eligible for furlough pay under the Scheme. Please refer to the factsheet on Furlough and the Coronavirus Job Retention Scheme.

In most cases, employees are not recommended to wear facemasks (also known as surgical masks or respirators) to protect against the virus other than in health care, or some social care settings or where protective face masks might help employees working in particularly vulnerable situations. Face masks are only recommended to be worn by symptomatic individuals (advised by a healthcare worker) to reduce the risk of transmitting the infection to other people.

The Government is now advising that people should aim to wear a face-covering in enclosed spaces where social distancing is not always possible and they come into contact with others such as on public transport or in some shops. This includes homemade cloth face-coverings. This is to help protect against inadvertent transmission of the disease to others if the user has it asymptomatically.

Employees are not required to wear face coverings in the workplace as social-distancing remains the most effective measure in the workplace. However, employers should support workers in using face coverings safely if they choose to wear one in the workplace. In those circumstances employees should be reminded to wash their hands thoroughly with soap and water for 20 seconds or use hand sanitiser before putting a face covering on, and after removing it. When wearing a face covering, they should avoid touching their face or face covering and practise social distancing wherever possible.

To varying degrees, employees are likely to be anxious about the risks of being exposed to the virus, including when attending the workplace. The government has advised that homeworking should be put in place where possible. For employees who cannot work from home, they are encouraged to return to work where it is safe to do so.

It may be possible to agree with employees a temporary variation of their working hours to avoid them travelling during busier times on public transport. If this is not possible, the best approach would be to attempt assuage employees’ anxieties by reassuring staff regarding the additional hygiene measures the employer has put in place to protect their health, safety and well-being, so far as practicable.

It is unlikely to be reasonable to treat absences from work in those cases as unauthorized or as a disciplinary matter. Furthermore, doing so may place employers at risk of a claim. Where an employee has a reasonable belief that the danger to their health and safety of them attending work is serious and imminent (e.g. because they reasonably believe they would be at an unacceptable risk of contracting coronavirus in the workplace and that the preventative measures the employer has put in place are insufficient) and the employee could not reasonably have been expected to avert the risk (e.g. by first addressing their concerns with the employer), depending on the facts, the employee would be protected from an automatically unfair dismissal if the employer were to dismiss them due to their refusal to attend work for this reason (there is no minimum service requirement for employees to claim that their dismissal was unfair for an automatically unfair reason). 

Most businesses have been severely affected by a downturn in work or custom. This has been caused initially as a result of public anxiety around contracting the virus through social mixing and latterly as a result of public health guidance to avoid non-essential social contact where practicable.  On 20 March 2020, the government ordered the closure of cafes, pubs and restaurants by that evening, except for take-away food. It further ordered that nightclubs, cinema, theatres, gyms and leisure centres should close “as soon as they reasonably can”.  A business operating in contravention of the Health Protection (Coronavirus, Business Closures) Regulations 2020 will be committing an offence.  On 23 March 2020, the government announced that all “non-essential” shops and community spaces are to be closed with immediate effect for at least 3 weeks and until further advised and the Regulations will be extended to apply to those businesses too (a full list of the non-essential businesses which are to close are available here.

Takeaway and delivery services may remain open and operational. This means people can continue to enter premises to access takeaway services, including delivery drivers.

Online retail is still open and encouraged and postal and delivery services continue to run as normal.

Employees working in those businesses which have closed or experienced a downturn in custom due to social distancing will be particularly impacted by lay-offs, short time working and potentially, redundancies.

However, the Chancellor has since announced the proposed introduction of the Coronavirus Job Retention Scheme.  Once this comes into force, all UK employers (i.e. employers in Scotland, Northern Ireland, England and Wales) will be able to access funding from HMRC to continue paying 80% of their employees’ employment costs, up to a cap of £2,500 per month, for those employees who are not provided with work and that would otherwise have been laid off (or made redundant) during this crisis.  Please see our factsheet entitled Furlough Leave for guidance on the Scheme, although the precise details of the Scheme have not yet been formulated.  In view of this, it is advisable that employees be retained where possible or kept on lay off or short-time working where this is already in place. This is particularly those employees have accrued unfair dismissal rights, who may otherwise assert that a redundancy dismissal prior to the Scheme coming into place is unfair in the circumstances) until the new Scheme is in place  Please refer to our template Letter to Staff about the Coronavirus Job Retention Scheme (Furlough).   

Where this may avoid redundancies, or whilst employers await the introduction of the Coronavirus Job Retention Scheme, lay-offs and short time working can be put in place to address temporary work shortages or business closures, without having to resort to redundancy. However, employers can only lawfully take this action to avoid potential unlawful deductions from wages claims or breach of contract claims where employees agree to being laid off or kept on short-time working, or it is provided for in the contract (e.g. the contract contains a “lay-off” and/or “short-time working” clause).  Please refer to our factsheet on Lay-offs, Short Time Working and Guarantee Payments for further guidance.

Businesses affected by a downturn are considering other temporary measures to avoid the need for redundancies and whilst awaiting the introduction of the Coronavirus Job Retention Scheme, such as introducing a temporary reduction in pay, working hours, or removing/reducing certain contractual benefits.  Employers will need to consult with staff to obtain their agreement to these measures in the absence of any relevant contractual flexibility clauses or short-time working clauses. Please refer, for example, to our template Letter Seeking Agreement To Vary Terms of Contract of Employment. 

On the other hand, there will be a significant increase in workload for staff that are able to continue working during the coronavirus outbreak, particularly in certain sectors such as healthcare and social care. Employers need to consider what measures they can put in place to support those staff in helping them to manage increased workloads.  In the absence of existing contractual overtime provisions, employers will need to seek staff agreement to working overtime.  Employers may, for example, seek to agree a short period of lay off in the first instance which is kept under regularly review, with consent for a further period of lay off sought where necessary.  Agreement to any period of lay off should be confirmed in writing in the absence of existing contractual lay off provisions.   

Employers should continue to monitor the latest travel advice from the Foreign & Commonwealth Office as this advice is rapidly changing.  At present the government has advised against all but essential travel.  Many international borders have however now closed making international travel impossible in most cases.

Whilst employees are now working from home where practicable and some businesses have been told by the government to temporarily close for at least 3 weeks and until further advised (please see above section on Lay offs and Short Time Working for details of these types of businesses), for those that are still attending their workplace, please refer to our factsheet, Employment Law Issues During a Pandemic Virus for guidance on workplace health and safety measures. In addition to informing staff of the new government requirements around self-isolation and social distancing, staff should be reminded (such as through written notices displayed in the workplace) to strictly adhere to the following hygiene practices:

• Washing hands frequently with soap and water for at least 20 seconds and to use an alcohol-based sanitiser gel where this is not available; as well as carrying tissues and using them to catch coughs and sneezes, and disposing of used tissues in the bin straight away. 

Employers should ensure that soap and running water is readily available in the workplace. It is also good practice to make available supplies of alcohol-based sanitisers, particularly for mobile workers who may not always have access to soap and water.  Employers should ensure that all potentially high-contact work areas, such as toilets, door handles and shared office equipment are regularly cleaned using household type detergents. The government has produced guidance on cleaning in non-health care settings, which can be accessed here: https://www.gov.uk/government/publications/covid-19-decontamination-in-non-healthcare-settings/covid-19-decontamination-in-non-healthcare-settings    

Where homeworking is not practicable and employees are still attending their workplace, it is also good practice for employers to:

• keep everyone updated on actions being taken to reduce risks of exposure in the workplace
• ensure employees who are in a vulnerable group are strongly advised to follow social distancing guidance (as set out above)
• make sure everyone’s contact numbers and emergency contact details are up to date
• make sure managers know how to spot symptoms of coronavirus and are clear on any relevant processes, for example sickness reporting and sick pay, and procedures in case someone in the workplace is potentially infected and needs to take the appropriate action

Employers should also remind employees of any existing risk assessments for reducing the risk of infection in the workplace and should ensure that these are still relevant and sufficient.    

The NHS has produced some posters around hygiene measures that can be displayed in public areas: 

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/866065/Handwashing_techniques.pdf

Government guidance applicable since 23 March 2020, which is to remain in place for at least 3 weeks and until further notice, states that retail and public premises which remain open to the public must:

• Ensure a distance of two meters between customers and shop assistants; and
• Let people enter the shop only in small groups, to ensure that spaces are not crowded.
• Queue control is required outside of shops and other essential premises that remain open.

At the Budget on 11 March 2020, the Government announced other measures it will introduce to support businesses that experience increased costs or disruptions to their cashflow as a result of coronavirus, including a Coronavirus Business Interruption Loan Scheme and a dedicated HMRC helpline for those who need a deferral period on their tax liabilities.  Lending banks have also put in place their own measures to assist businesses during this period. The Government has since announced a wider range of financial support during the coronavirus epidemic, which includes the proposed introduction of the Coronavirus Retention Scheme. A summary of the government support can be found in the following link: https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19.

We would expect to see an amendment to the Coronavirus Bill providing for Regulations to be made for government financial support for the self-employed who are not in scope for financial assistance under the proposed Coronavirus Job Retention Scheme soon, although no legislation has yet been passed by Parliament in this regard. Currently, self-employed individuals would need to apply for government benefits such as Universal Credit in the absence of any alternative financial support.