Frequent Asked Questions
Can my employer request me to go into work?
For businesses that are permitted to stay open: whilst the government encourages home working where possible, there is no obligation upon the employer to allow home working. In many cases, a business will not be able to continue running on a work from home basis. This means the employer is still allowed to ask for their employees to come into work.
I can work from home, but my employer is making me come in. What can I do?
The guidelines state that if you can work from home, you should. You should discuss this with your employer. If they still insist that you go to work, then you will have to ensure that you are safe in the workplace. If you do not think that the workplace is safe, see the next question.
I have to go into work. The social-distancing measures aren’t working, or aren’t there and I don’t feel safe. What can I do?
The first thing to do would be to talk to the health and safety officer. Depending on their response, you can raise a grievance that you do not believe you are safe in the workplace. This is a more formal way of raising an issue. Acas has guidelines that you can follow on how to do this, here: https://www.acas.org.uk/grievance-procedure-step-by-step/step-2-raising-a-formal-grievance
You should always raise a written grievance in the first instance. Acas has produced a code of practice that provides minimum standards employers should follow: https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html#the-code-of-practice
If nothing is done and the workplace remains unsafe, then you should seek immediate legal advice. You may have grounds to refuse to go to work until steps are taken to remove the danger.
If an employee is dismissed for refusing to attend an unsafe workplace (or an employer refuses to ensure the workplace is safe) you may have a legal claim.
We would recommend seeking legal advice before taking any action in response to an employer’s failure to provide a safe workplace as the area of law can be complex. We can help in writing letters to your employer, raising a grievance and assisting you with a potential claim. Please refer to our website for full details of the services we can offer.
I do not feel comfortable going into work. I am not vulnerable myself. My employer is insisting that I return. What can I do?
There are options available to support employees who do not feel comfortable going into work. The government has introduced the Coronavirus Job Retention Scheme for employers, who are eligible, to furlough staff. See our furlough section for more information on what this involves.
If you make a request to be furloughed, employers have discretion on whether to furlough or not. If your employer refuses your furlough request because they need you in work, then you will be expected to go into work. A failure to go into work can result in disciplinary action being taken against you.
If you are dismissed as a result, it is possible that you could have a claim for automatic unfair dismissal on health and safety grounds if you can show that the workplace was unsafe and it was unreasonable for you to return. There are a range of factors to consider and we advise for you to seek advice before refusing a request to return to work. We can help in writing letters to your employer to request furlough and advise you on your options if this continues to be refused.
My work has asked me to return, but I use public transport to get to work and do not believe it is safe to travel.
The guidelines recommend that people wear face masks on public transport, but this means there is still a risk to your safety. Where the travel is for the purpose of coming to your workplace, you are able to discuss this with your health and safety officer and potentially raise a grievance on health and safety grounds. This is a more formal way of raising an issue. Acas has guidelines that you can follow on how to do this, here: https://www.acas.org.uk/grievance-procedure-step-by-step/step-2-raising-a-formal-grievance
You should always raise a written grievance in the first instance. Acas has produced a code of practice that provides minimum standards an employer should follow: https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html#the-code-of-practice
If no alternative travel arrangements can be made, there may be a possible claim of ‘automatic constructive unfair dismissal’ on health and safety grounds on the basis that you feel forced to leave your employment due to the risk of serious or imminent danger. This is a difficult claim to make and a number of factors have to be considered before taking such a big step. If you are contemplating resigning due to health and safety worries, you must seek legal advice first. We would recommend seeking legal advice when the issue first arises. This can be a complicated and stressful situation and Derbyshire Law Centre is able to advise at every step. We can help in writing letters to your employer, raising a grievance and assisting you with a potential claim.
What is furlough? What happens if I am furloughed?
Furlough is where an employee or worker agrees with their employer to stop work temporarily but stay employed. The Coronavirus Job Retention Scheme was set up to help businesses stay afloat and support employees who might otherwise have been dismissed by allowing them to be furloughed under the scheme.
While ‘on furlough’, employees are not allowed to work for their employer or for any linked or associated organisation. They cannot make money or generate revenue for the latter either. Employers are responsible for submitting the claim for the employee and HMRC will pay the employer 80% of the employee’s wage, up to a cap of £2,500 (gross) per worker per month. The employer should then pay the 80% wage to the employee.
See more here: https://www.acas.org.uk/coronavirus/furlough-closing-workplaces
Is the scheme only if redundancy was the alternative?
The scheme is said to apply to ‘employees who are furloughed by reason of circumstances arising as a result of coronavirus or coronavirus disease’. It is designed to support both employers and employees where an employer cannot provide work and home working is not an option. See the next question.
The basic requirements are that:
- You are on the PAYE payroll on 30 October 2020
- You must have made an RTI submission to HMRC between the 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee
- Enrolled for PAYE online
- With UK Bank account
- On any type of contract
It is worth noting that this may differ where an employee has been made redundant, or they stopped working for their employer on or after 23 September 2020 and their employer has subsequently re-employed them. If this applies to you, we recommend getting in touch with the Law Centre for advice.
There is an extensive list of all the employees who could be eligible under the scheme, which you can view here:
An employer can furlough employees who are unable to work because:
- They are clinically extremely vulnerable
- At the highest risk of severe illness from coronavirus and following public health guidance
- They have caring responsibilities resulting from coronavirus, including employees that need to look after children
Crucially, your employer does not need to be suffering from a reduction in work nor be closed for an employee to be eligible.
How do I become furloughed?
Your employer should write to you to state that you are to be furloughed. A popular method has been by way of an email. You do not need to signify your agreement to be furloughed. However, your employer should keep a written record of the agreement for 5 years and of how many hours you work and/or are furloughed for.
Does my employer have to furlough me? Can I make my employer furlough me?
Employers have total discretion in regard to furloughing employees providing any decisions made are non-discriminatory. As an employee, you have options in terms of requesting to be furloughed, though an employer may be able to refuse this. If you are refused to be furloughed on discriminatory grounds (for instance, if you are a woman with childcaring responsibilities), you may have been discriminated against. Please contact us for further advice.
Is there a procedure that my employer has to follow when deciding who to furlough?
A procedure has not been provided by the Government, so it is at the employer’s discretion. It is advisable for employers to select workers who cannot work from home and who currently have no work to do. However, employers will need to be cautious so as not to be seen as discriminating against employees. As with redundancy, employers may need to consider requesting volunteers to furlough, considering who is at risk and then following a fair selection process.
If you feel that you have been discriminated against, please contact us.
How long can I be put on furlough for?
The scheme is temporarily running until the end of April 2021, but this is under review and could be extended.
I have agreed to be furloughed but I have not had any money come through. My employer has been paid but is not giving it to me. What can I do?
You could have a potential claim for unlawful deduction of wages. We would advise contacting the Law Centre for further advice.
Who is entitled to Statutory Sick Pay (SSP)?
- People who have coronavirus
- People isolating due to displaying symptoms of coronavirus
- People isolating due to someone in their household having symptoms
- People who have been told to isolate by a doctor or NHS 111
- Those who have been told to follow shielding measures (you might have received a letter or text telling you to do this)
See more here: https://www.acas.org.uk/coronavirus/self-isolation-and-sick-pay
If you have been advised to shield yourself for 12 weeks are you entitled to SSP?
- If you are unable to work from home during this time, you may also be eligible to be furloughed. You can ask your employer about this. If you are furloughed, you cannot receive SSP as well.
See more here: https://www.acas.org.uk/coronavirus/vulnerable-people-and-high-risk
What should I do if I do not meet the SSP requirements but my employer has put me on SSP and I am pregnant?
Pregnant women have extra protection under health and safety laws. If you are pregnant and have notified your employer about this, you are entitled to a risk assessment. If your employer can’t provide a safe workplace, in particular the 2 metre social distancing rules, then you are entitled to be suspended on full pay.
An employer’s failure to provide normal wages during a period of suspension on health and safety grounds could be an unlawful deduction of wages and/or pregnancy discrimination. We would recommend seeking legal advice as soon as possible if you are being told to go into work and you are pregnant.
Read more: https://maternityaction.org.uk/2020/04/new-legal-advice-on-pregnant-womens-rights-during-the-covid-19-pandemic/
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