Your rights at work during the coronavirus pandemic

INTRODUCTION

The current coronavirus crisis is putting workers at risk, both financially and in terms of their health and wellbeing. We need to do all we can to protect ourselves in this crisis, and we have set out below the areas of employment law that we feel are most relevant. In doing so, we hope it will be an aid for workers in getting organised in order to defend themselves and staying safe during the pandemic.

We should stress that, by themselves, employment laws offer little protection. UK employment laws are over-complex, weak and difficult to enforce. At best, they stop the most blatant abuses by the bosses; at worst, they offer little or no protection to workers. Rather than relying on employment laws, we should use them as an aid to organising and as a means of putting pressure on management.

This guide has been put together by workplace activists rather than lawyers. Employment laws have very few differences between England, Scotland and Wales; even then, these are mostly related to how lawyers, tribunals and courts interpret and refer to things. In Northern Ireland, there is a greater degree of difference, but the information here related to the coronavirus crisis and employment rights is not affected. If in doubt, contact the Solidarity Federation:

solfed@solfed.org.uk

Get organised.

Acting together is always better than acting alone. Talk to the people you work with about what is wrong and what needs changing. Do not fall into the trap of just moaning about how bad things are; instead, try to identify what is wrong and how it can be fixed. Always act collectively whenever possible, even at a basic level. For example, rather than complain individually, draft a letter, discuss it with the people you work with, get them all to sign it and give it to management. Alternately, go and see management all together and make the complaint. If that does not work, talk again to your workmates to see what else you can do next to change things, put pressure on managers, and defend and protect yourselves.

Prepare and plan for the future.

If you have been laid off, try to keep in touch with each other, support each other and discuss what changes you feel should be made when things return to normal and you go back to work.

Once the coronavirus pandemic is over, the government will want to claw back the money currently being spent to try and shore up the economy. This will be when we see the very same Tory ministers, currently clapping the health workers, demanding cuts and austerity. After the 2008 financial crash, we had years of cuts, growing inequality, falling wages and increasing poverty. The only way of stopping a repeat of this is by getting together and organising, but that cannot wait until the crisis is over; it has to start now.

If you are interested in starting to organise in your workplace get in touch with us here at Solidarity Federation for support and advice. In the longer term, when something like normality returns, Solidarity Federation will continue to offer a range of courses about workplace organising – if you are interested contact training@solfed.org.uk.

Doing nothing is not an option.

Rather than confront a problem, there is a natural tendency to wait and do nothing, hoping that things will turn out okay in the end; this is not an option. You should be in touch with your employer, asking questions and making demands. We have put together a couple of demand letters as part of this guide that you can give to your employer and we will be producing more as the situation develops. For further information, contact us here at Solidarity Federation.

Do not resign from your job.

Understandably, people are scared and we have had reports of workers simply walking out of their jobs because they are worried. However, the last thing you should do is resign from your job. In the current situation there is little chance of getting another job, and by resigning it may be harder to claim any benefits. The best solution is to talk to the people you work with and put pressure on your employer to fix any problems you face or ‘furlough’ you under the government’s job retention scheme. If you feel that you cannot go on working for whatever reason, it is far better to go on the sick.

YOUR RIGHTS AT WORK EXPLAINED

I have been laid off due to the coronavirus. Should I get paid? The fact that the government has introduced the job retention scheme, under which 80% of wages are to be guaranteed, has tended to obscure the fact that, under UK employment law, the majority of workers should be paid full pay when temporarily laid off work. You should therefore demand full pay when laid off, especially if you work for a larger firm with deep pockets. Failing that, you should demand at the very least that they should pay the 20% of earnings you will lose under the job retention scheme.

You are not entitled to full pay if you are temporarily laid off when:

There is a clause in your contract of employment that states clearly that you can be laid off temporarily without pay. In that case, you are entitled to ‘guarantee pay’: £29 a day for five days in any three month period (so a maximum of £145).
You are not classed as an ‘employee’. As such, agency workers, workers on ‘zero hours’ contracts and the self-employed are excluded.
You can find the full details on here

What is the government’s Coronavirus Jobs Retention Scheme? Your employer can now keep you on the payroll if they’re unable to operate or have no work for you to do because of coronavirus. This is known as being ‘on furlough’. Under the government’s scheme, your employer can pay 80% of your wages up to a monthly cap of £2,500. The employer will then get the money refunded by the government. Any employer of any size in the country will be eligible for the scheme.

Here are the details of the scheme of how the scheme works:

In order to claim, you must have been on your employer’s PAYE payroll on 28 February 2020. You can be on any type of contract, including a ‘zero hours’ contract or a temporary contract, just as long as you are being paid under PAYE. The scheme does not apply to the self-employed.
Agency workers are paid through PAYE, they are eligible to be furloughed and receive support through this scheme, including where they are employed by umbrella company
Those people who have been notified by the NHS to isolate for 12 weeks can claim under the scheme.
Employees who are unable to work because they have caring responsibilities resulting from coronavirus (COVID-19) can be furloughed. For example, employees that need to look after children can be furloughed.
If you need to stay at home with someone who is shielding.
Foreign nationals are also eligible under the scheme
If you were made redundant, your employer can agree to re-employ you and place you on ‘furlough’ under the scheme instead.
Employees on unpaid leave cannot be ‘furloughed’, unless they were placed on unpaid leave after 28 February 2020.
You can be put on ‘furlough’ by one employer and continue to work for another. If you’re put on furlough by more than one employer, you’ll receive separate payments from each employer.
You cannot do any work for an employer once they have laid you off or ‘furloughed’ you under the scheme. So you are within your rights to refuse if your employer asks you to undertake any work once you are ‘furloughed’.
You have to have stopped working to be eligible for the scheme. For example, if your employer has reduced your hours, but you continue to work, you are not eligible under the scheme.
You can still claim maternity, paternity and adoption leave under the scheme.
Employees who are unable to work because they have caring responsibilities resulting from coronavirus (COVID-19) can be furloughed. For example, employees that need to look after children can be furloughed.
Pay will be back-dated to March 1st 2020 under the scheme.
Tax and national insurance will be deducted as normal under the scheme.
You can find more info here

How will pay be calculated? For full-time and part-time salaried employees whose pay does not vary, the actual salary before tax, as of 28 February 2020, should be used to calculate the 80%. Fees, commissions and bonuses will not be included.

What if my hours vary? How will my pay be calculated? If you have worked for a full twelve months, you should be paid for the higher of either:

the same month’s earnings from the previous year;
average monthly earnings from the 2019-20 tax year.
If you have been employed for less than a year, you should be paid an average of your monthly earnings since you started work. If you started work in February you should be paid pro-rata for your earnings so far.

Do I have to accept being ‘furloughed’? No, you can refuse to accept being ‘furloughed’ and request redundancy instead, if that suits you. Your employer must ask you if you are prepared to be ‘furloughed’; they cannot simply lay you off.

If I agree to be ‘furloughed’, does it alter my existing terms and conditions? No, but you should make this clear when you agree to be ‘furloughed’. The best way to do this is by email or letter, confirming that you agree to be ‘furloughed’ but stressing that you wish your existing terms and conditions to continue. This should include continuity of service and leave continuing to accrue during the ‘furlough’ period.

What can I do if my employer is refusing to ‘furlough’ me under the government scheme and is instead making me redundant? Given the job retention scheme, employers should not be making workers redundant. You should put pressure on your employer to force them to use the government scheme. Solidarity Federation has already been involved in one dispute involving over 100 workers, when the company was threatening to make ‘zero hours’ staff redundant rather than putting them on ‘furlough’ under this scheme. The workers got together in a Facebook group and publicised their case on social media and the company quickly changed their mind.

If you find yourself being threatened with redundancy, contact the people you work with, set up a Facebook or WhatsApp group and get organised. Spread your story as widely as possible on social media and through traditional media outlets, such as local newspapers. Stress that, under the legally enforceable ‘fair’ redundancy procedure (outlined below), your employer should ‘furlough’ you, rather than make you redundant.

You should also notify your employer of your demand to be placed on ‘furlough’ rather than be made redundant. The best way to do this is if all the workers involved but their names to a demand letter.

You can contact the Solidarity Federation for help and support.

REDUNDANCIES

What is redundancy? A genuine redundancy is when your employer has a real business reason to make you redundant, usually because:

your employer doesn’t need you to do your job anymore;
your workplace is closing;
your employer is going out of business or has less demand for its services.

My employer is threatening me with redundancy. What should I do? As outlined in the last section, contact the rest of the people you work with, set up a Facebook or WhatsApp group, organise a campaign and fight any proposed redundancies. You should demand that you should be ‘furloughed’ rather than be made redundant. Try to act together; this is especially important if only part of the workforce faces being made redundant. In these circumstances, your boss will try to divide and rule, by trying to get workers to compete against each other for the jobs that are available.

Can my boss simply send me a letter notifying me that I am being made redundant? If you are classed as an ‘employee, which, in most cases, will exclude agency workers or those on ‘zero hours’ contracts, your employer must legally follow a ‘fair’ redundancy procedure, under which they must organise a meeting and consult with you before making you redundant.

If you are an agency worker or on a ‘zero hours’ contract, you should still demand that your employer follows a ‘fair’ redundancy procedure to ensure there is no discrimination. You should demand to meet with your employer to discuss the proposed redundancies. If your employer refuses to meet, make their refusal part of your publicity campaign against the company.

What does the “fair” redundancy procedure entail? If there are less than 20 redundancies involved and providing the workers being made redundant are classed as ‘employees’, your employer should arrange to meet you individually. If there are more than 20 redundancies, your employer must carry out a collective consultation process. This collective consultation must take place 30 days prior to any redundancies being made, if there are between 20 and 99 redundancies, or 45 days if there are 100 or more redundancies.

Under the legally enforceable collective consultation procedure, your employer must meet with either a recognised union rep or an elected workplace rep. If there is no recognised union or workplace rep at your workplace, you can demand that your employer hold elections. Demand an election and that the election process complies with section 188A of TULRCA (Trade Union and Labour Relations (Consolidation) Act 1992), the details of which can be found at the link below. The aim is to make it as difficult for management as possible to make you redundant as a means of persuading them to ‘furlough’ you instead.

http://www.legislation.gov.uk/ukpga/1992/52/section/188A.

What will happen at the consultative meeting? At the meeting, your employer must:

allow you to raise objections and suggest alternatives to redundancy;
consider your objections and, if they decide to go ahead with redundancy, they must confirm this to you in writing;
inform you how long the decision will take;
explain how they’ll choose who to make redundant;
explain your right to appeal.
Should your employer fail to consult with you, fail to follow the correct procedure or not allow you the right to appeal, you can take your employer to an employment tribunal. In all cases, if your employer fails to follow the correct redundancy procedure, you should make this a part of your campaign against redundancies.

Is there anything we should do before meeting management to consult over redundancies?
It is vital that as many workers as possible who are threatened with redundancy meet up and plan a common strategy before any meeting with management takes place. In normal times, this would mean setting up a face-to-face meeting, but during the coronavirus this is best done over the internet, for example via a Facebook or WhatsApp group. The main demand should be that you are ‘furloughed’ rather than being made redundant. If you have not done so already, you should launch a campaign on social media and in local newspapers attacking your company’s decision to make you redundant rather than putting you on ‘furlough’.

You should draft a letter on behalf of all the workers involved listing your demands and hand this to your employer at the consultative meeting. If you are being consulted collectively, you should make it clear to the person you have elected that they are your delegate. Therefore, they should not agree to anything at any meeting with management that has not been discussed and decided upon collectively by all the workers involved in the dispute.

If I would prefer to take redundancy rather than being ‘furloughed’, how much redundancy pay will I receive? You’ll normally be entitled to statutory redundancy pay if you’re classed as an ‘employee’ and you’ve been working for your current employer for two years or more. You are entitled to the following:

half a week’s pay for each full year you were under 22 years of age;
one week’s pay for each full year you were 22 or older but under 41;
one and a half week’s pay for each full year you were 41 or older.
Length of service is capped at 20 years and, at the time of writing, your weekly pay is capped at £525 and the maximum statutory redundancy pay you can get is £15,750. You can calculate how much statutory redundancy you are entitled to on here.

However, statutory redundancy pay is the minimum amount you can receive. Your employer may offer more and you can demand more.

Does my employer have to pay me for a notice period if I am made redundant? You must be given statutory redundancy paid notice periods, which are:

at least one week’s notice if employed between one month and two years;
one week’s notice for each year, if employed between two and twelve years;
twelve weeks’ notice if employed for twelve years or more.
Your employer must pay you in lieu of notice if there is no work available.

If your employer goes bankrupt, you may be entitled to redundancy pay. You can find the details on here.

THE GOVERNMENT’S CORONAVIRUS SELF-EMPLOYMENT INCOME SUPPORT SCHEME

I am classed as self-employed. Can I apply for the scheme? You can apply if you’re a self-employed individual or a member of a partnership, and you:

have submitted your income tax self-assessment tax return for the tax year 2018-19;
traded in the tax year 2019-20;
are trading when you apply, or would be except for COVID-19;
intend to continue to trade in the tax year 2020-21;
have lost trading/partnership trading profits due to COVID-19.
Your self-employed trading profits must also be less than £50,000 and more than half of your income must come from self-employment. This is determined by at least one of the following conditions being true:
having trading profits/partnership trading profits in 2018-19 of less than £50,000 and these profits constituting more than half of your total taxable income;
having average trading profits in 2016-17, 2017-18, and 2018-19 of less than £50,000 and these profits constituting more than half of your average taxable income in the same period.
If you started trading between 2016 and 2019, HMRC will only use those years for which you filed a self-assessment tax return.

If you have not submitted your income tax self-assessment tax return for the tax year 2018-19, you must do this by 23 April 2020.

HMRC will use data on 2018-19 returns already submitted to identify those eligible and will assess any late returns filed before the 23 April 2020 deadline in the usual way.

How much money will I get? You’ll get a taxable grant which will be 80% of the average profits from the following tax years (where applicable):
2016 to 2017;
2017 to 2018;
2018 to 2019.
To work out the average, HMRC will add together the total trading profit for the three tax years (where applicable) then divide by three (where applicable), and use this to calculate a monthly amount, which will be up to a maximum of £2,500 per month for three months.

The government will pay the grant directly into your bank account, in one instalment. The grant should be paid by the beginning of June, backdated three months.

How can I apply for the scheme? You cannot apply for this scheme yet. HMRC will contact you if you are eligible for the scheme and invite you to apply online.

If you do not qualify under the scheme or you cannot wait until June to be paid, the only option for self-employed people prevented from working due to coronavirus is to claim Universal Credit and any other qualifying benefits. The minimum income floor for Universal Credit has been removed.

BENEFITS AND THE CORONAVIRUS

My income has fallen due to the coronavirus, can I claim any state benefits? If you’ve been affected by coronavirus, you might be able to claim benefits or get more money on top of your current benefits. This might be because you:
can’t work as you have coronavirus or you’re following guidance to stay home – this is called ‘self-isolating’;
are earning less because you can’t go to work;
are self-employed and you do not qualify under the government scheme or you’re earning less;
have lost your job.
You can access a benefits calculator to see what benefits you’re entitled to and get more information about benefits on here.

I am off sick due to the coronavirus, will I get sick pay? If you’re off sick or are told to stay at home, and you are normally paid sick pay under your contract of employment, you should receive sick pay in the normal way. If your employer does not pay you while you’re off sick you may be entitled to statutory sick pay (SSP) from the first day you are ill. You can get £94.25 per week for up to 28 weeks with statutory sick pay. Statutory sick pay will be paid through your employer.

You will not have to prove you’re ill for the first 7 days. After 7 days, they can ask to see a ‘fit note’ to prove you’re too ill to work. After 7 days do not ask your doctor for a fit note; instead, contact the 111 coronavirus service on the following link: https://111.nhs.uk/isolation-note/.

I am self-isolating. Can I claim sick pay? If you’re self-isolating and can’t work from home, you should still get SSP and you should get sick pay from your employer if you are normally paid sick pay under your contract of employment. If you are self-isolating, you should get an isolation note from the 111 coronavirus service at: https://111.nhs.uk/isolation-note/.

Is everybody entitled to statutory sick pay? If you work (and aren’t self-employed), you’re legally entitled to get statutory sick pay (SSP) as long as you:

have started work with your employer;
for other than coronavirus, you are sick for four full days or more in a row (including non-working days);
earn on average at least £118 per week (before tax), rising to £120 per week from 6 April 2020);
follow your employer’s rules for getting sick pay;
are not in one of the ineligible categories (see below for a list of these categories).
You’re still entitled to SSP if you work part-time or are on a fixed-term contract.

Who is not entitled to SSP? You won’t get SSP if you:

are self-employed;
have already had SSP for 28 weeks (and the 28 weeks ended within the last 8 weeks);
had Employment and Support Allowance (ESA) in the last 12 weeks;
are getting statutory maternity pay or Maternity Allowance;
are pregnant, with your baby due in four weeks or less and your illness is pregnancy-related;
had a baby in the last 14 weeks (or the last 18 weeks if your baby was born over 4 weeks early);
are in the armed forces;
are in legal custody (detained either by the police or in prison);
are an agricultural worker – the government runs an alternative scheme you can find out about it here.

If I am an agency worker, on a ‘zero hours’ contract or a casual worker, can I claim statutory sick pay? Casual (or short / ‘zero hours’ contract) and agency workers are entitled to statutory sick pay just as long as they are being paid under PAYE and meet the above qualifying conditions. If you have worked for your employer for at least three months and earned an average of £118 per week during that period you should be eligible for SSP. The three months continuous employment period is not broken by periods of sickness, annual leave or if your employer has been unable to offer work.

If you’re an agency or casual worker and you’re working on an assignment when you get ill, you might be entitled to SSP until that assignment ends. If you’d already agreed to another assignment, you might be entitled to SSP till the end of that future assignment. If you’re not working when you get ill, you won’t be entitled to SSP.

The problem in claiming SSP is when you work for more than one employer. In all cases, you should claim SSP from your employer. If they refuse and you disagree with the reasons given for not paying you (SSP), you can contact HM Revenue and Customs (HMRC). Alternatively, you can contact Solidarity Federation for support.

What if I have more than one job? If you have more than one employer, you could be entitled to sick pay from each one. Treat each employer as if they were your only employer to see if they should pay you sick pay. If your illness means you can do one of your jobs but not the other, you could get sick pay from one while getting your normal wages from the other.

If you’re self-employed or can’t get SSP, you might be able to claim contribution-based or new-style Employment Support Allowance (ESA) if you have coronavirus or you’re self-isolating. You’ll need to have paid enough National Insurance contributions for two tax years – in 2020 the tax years are 2017-18 and 2018-19. If you can get ESA, you’ll be paid from the first day you were sick or self-isolating. You’ll also be able to get ESA if you’re caring for a child who has coronavirus or who’s been told to self-isolate. You can check out all the details concerning ESA here: https://www.gov.uk/employment-support-allowance/how-to-claim.

HEALTH AND SAFETY AND THE CORONAVIRUS

The government’s health and safety response to the coronavirus has been a disaster, which people are paying for with their lives. Scientists have been warning for years that it was a case of ‘when, not if’ a serious pandemic, such as the coronavirus, would strike. And for years successive governments have reassured people that they were prepared. If the current catastrophic mess is a case of ‘being prepared’, you shudder to think what not being prepared would look like.

In the current situation workers clearly cannot rely on the government or employers to protect them. Nor can they rely on the Health and Safety Executive, the government body tasked with protecting workers. The HSE website is virtually devoid of any advice on how workers should protect themselves in the current crisis, other than repeating the government line off ‘we are not asking… businesses to close – indeed it is important for business to carry on’ and to enforce social distancing ‘where possible’.

It is clear that, in order to protect both workers and stop the virus spreading, all but the essential sectors of the economy, such as the care, health and food sectors, should be shut down. It is a disgrace, for example, that online shopping is still being allowed so companies such as Amazon can make money out of the crisis. For those sectors that have to remain open, all of society’s resources should be targeted towards protecting workers and users.

In order to protect themselves, workers need to start talking to each as a means of getting organised. They must try to devise strategies and make demands aimed at protecting themselves if they work in essential industries. For workers in non-essential industries, if you do not feel safe get together and take action. If you do not feel safe, you are protected if you refuse to work.

The Management of Health and Safety at Work Regulations 1992 state that employees have the right to stop work and proceed to a place of safety ‘if exposed to serious, imminent and unavoidable danger’. The Trade Union Reform and Employment Rights Act 1993, confirmed by the Employment Rights Act 1996, gives protection to union health and safety representatives, and ordinary workers to raise safety concerns and act on them. It made it illegal for employers to victimise workers who:

leave, propose to leave, or refuse to return to a workplace (or part of it) in the event of danger they believe to
be serious and imminent and could not reasonably be expected to avert;
take appropriate steps to protect themselves and others when facing serious and imminent danger.

Alternatively, workers should go sick as a means of protecting themselves.

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