This page contains information on employment rights through the Covid-19 pandemic. The two sections covered below are Long Covid and the Coronavirus Job Retention Scheme (CJRS).

Long Covid and your employment rights

This information is designed to help employees and their representatives. For information about sources of income if you are self-employed, please see our page Protect Your Income here.

Coronavirus (COVID-19) can cause symptoms for some people that can last weeks or months after the infection has gone. This is now widely known as Long Covid, and it’s having an impact on employers and employees as affected workers try to get back to work.

NHS advice is that Long Covid symptoms can include:

  • extreme tiredness (fatigue)
  • shortness of breath
  • chest pain or tightness
  • problems with memory and concentration (“brain fog”)
  • difficulty sleeping (insomnia)
  • heart palpitations
  • dizziness
  • pins and needles
  • joint pain
  • depression and anxiety
  • tinnitus, earaches
  • feeling sick, diarrhoea, stomach aches, loss of appetite
  • a high temperature, cough, headaches, sore throat, changes to sense of smell or taste
  • rashes

The effects of the condition vary from person to person, but the usual rules for sickness absence and sick pay apply when someone is off work because of Long Covid.

In April 2021, the Office for National statistics estimated that there were 1.1 million people in the UK with Long Covid. Of these, 122,000 healthcare workers were affected, 114,000 teachers and other education staff, and 31,000 social care personnel.

The combination of ill health leading to diminished income and job insecurity and the low level of Statutory Sick pay (SSP) at £96.35 per week can have a damaging impact on employees’ mental health. Due to the relative absence of research into the condition so far, it can be hard to plan ahead or assert your rights with your employer.

I’m suffering from Long Covid and it is affecting my work. What should I do?

If you feel your employer needs guidance on Long Covid, you may want to show your employer the guidance provided by ACAS and the Equality and Human Rights Commission. The Equality and Human Rights Commission also have helpful information.

Ask your employer not to treat your absence in the same way as they would using their an ordinary absence management process, but to be patient, as there is ongoing research in to Long Covid. This may lead to a much clearer prognosis for the future.

You may want to speak to your trade union, if you are in one, about guidance they may have available. If your workplace has a union branch which meets, you may want to raise these issues in the branch and/or with your rep to support you through speaking to your employer. Unions can usually offer both specialist employment advice and support in negotiating with your employer.

Does Long Covid count as a disability?

Employees who are suffering from Long Covid should consider the possibility that they may have a disability as defined by the Equality Act 2010, Section 6. This will depend on the severity and duration of the effects. For Long Covid to count as a disability, it must have a mental or physical impairment that has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities. Long-term is defined as lasted for a year or is likely to last for a year or more. This is potentially the most difficult to assess, largely because of the early stage of the research in to Long Covid and the difficulty to predict how long it might last.

It should also be borne in mind that sufferers of Long Covid may have a pre-existing condition (e.g. diabetes or asthma). Even if your post-Covid condition is found not to amount to a disability in itself, the combined effect with another pre-existing condition may result in an overall substantial and long-term adverse effects so that it meets the Equality Act test for disability.

This means that treating a Long Covid sufferer less favourably because they have Long Covid or, for example, have high levels of sickness absence or are unable to fully fulfill the requirements of their role, could amount to direct disability discrimination or discrimination arising from a disability.

Perhaps more significantly, the Equality Act places a positive obligation on an employer to consider what, if any, adjustments can reasonably be made to alleviate any disadvantage suffered by disabled individuals in the workplace. For employees with Long Covid, potential adjustments might, for instance, include adjusting working hours or allowing individuals to continue working from home after lockdown.

As of July 2021, we are not aware of any decided court cases determining whether Long Covid can amount to a disability in law. However, there are other conditions, including myalgic encephalomyelitis/chronic fatigue syndrome (ME/CFS) with effects similar to those of Long Covid. It may be helpful to look at previous case law concerning those conditions for guidance. One example is the 2009 decision of the Employment Appeal Tribunal (EAT) in Chief Constable of Dumfries & Galloway Constabulary v Adams, 2009 IRLR 612. In this case, the EAT upheld an Employment Tribunals (ET) decision that an employee who suffered from ME was disabled. While the effects of this condition were better or worse over time, “symptoms of substance which wax and wane will be treated as continuing”. A diagnosis will need to be supplemented with evidence of the impact on the sufferer and how it affects their ability to carry out normal day to day activities.

Also, the ET has to assess the likelihood of the condition lasting 12 months or longer as it was at the time of the alleged discrimination, as opposed to whether the condition did in fact last 12 months or longer.

Are there any other sources of help for me if I am facing Long Covid?

Legal Aid is available for discrimination claims in employment. It is a limited scheme and is means-tested. You should check if you meet the financial eligibility criteria on the GOV.UK website here. If you do qualify you should be able to get advice under the scheme.

There is a lot of useful advice and help available from Citizens Advice.

As Long Covid is a relatively new phenomenon affecting large numbers of people, advice and best practice may change and develop as time goes on, so it is worth paying attention to new research and resources if you are suffering from this condition.

Is there any guidance for my employer?

ACAS suggests that employers should be aware that the effects of Long Covid can come and go. On some days the person might seem well, but on others their symptoms can be worse and they might need to be off work again.

Their advice offers practical tips for employers to manage the various effects of the condition in a sensitive way as well a range of options that can help staff get back to work safely.

If someone is off sick, they might feel isolated or need support to return to work. Employers should:

  • agree how and when to make contact during any absence;
  • make sure their work is covered and shared out appropriately while they’re off;
  • talk about ways to support them as they return to work where and when possible.

There are many available options to employers to help their staff return to work, including:

  • arrange and offer occupational health assessments;
  • look into reasonable adjustments, which can vary from changed hours, to adapted physical workspaces; and
  • discuss flexible working as an option as well as phased returns, which may mean coming back part-time initially to build back up to working usual hours.

It’s a good idea for the employer to focus on the reasonable adjustments they can make rather than trying to work out if an employee’s condition is a disability.

Because of the characteristic of fluctuating symptoms, employees may feel well enough to go to work but may relapse with symptoms which may become an ongoing pattern. Other sufferers may have long periods of sickness absence and will need to be treated in the same way as other employees on long-term sickness absence.

 

The Coronavirus Job Retention Scheme (CJRS)

The government’s Coronavirus Job Retention Scheme (CJRS) is designed to help employers if they cannot cover staff costs due to coronavirus. Its aim is to avoid redundancies, and the scheme can offer grants of up to 80% of an employee’s wage, up to a cap of £2,500 per month.

The scheme has covered salaries from March 1, 2020. There was an announcement in March 2021 that changes will be introduced. The Scheme will now run until 30 September 2021, although there will be changes as it progresses.

If the business you work for applies for CJRS, they will designate some or all of their employees as ‘furloughed workers,’ and will need to notify employees of this change. You will still need to consent to being furloughed. They will have to submit information through an HMRC portal to apply for reimbursement.
However, changing the status of employees when applying for CJRS remains subject to existing employment law and, depending on the employment contract, may be subject to negotiation.
If your employer tries to change the terms of your contract or any other status of your employment while designating you a ‘furloughed worker’ you should get advice.

Changes to the CJRS Scheme

The Government announced a number of changes to the scheme in early March 2021. This is the fourth time the scheme has been extended.

  • If you are currently furloughed the scheme would continue
  • You can work part time and be furloughed part time. Your employer should pay you your normal wages for the hours that you work.
  • The employer will recover furlough pay from the state but will have to pay pension and national insurance costs up until 30 June 2021. From 1 July 2021 the employer will recover 70% of furlough pay. From 1 August 2021 the employer will only recover 60% of furlough pay, However, employees should continue to get the same amount, i.e. 80%.

What does it mean if I am designated a ‘furloughed worker’?

This would mean that you are kept on your employer’s payroll, rather than being made redundant. You should not undertake work for them while you are furloughed.

Your employer will claim a grant of up to 80% of your wage for all employment costs, up to a cap of £2,500 per month, subject to the changes outlined above. You will remain employed while furloughed but you should not be undertaking work. Your employer could choose to fund the differences between this payment and your salary, but does not have to.

There is provision to be part furloughed and part employed by the same employer (see below).

You can work for another employer while furloughed (as long as your contract does not prevent this) or carry out voluntary work.

If your salary is reduced as a result of these changes, you may be eligible for support through the welfare system, including Universal Credit.

Will I have to pay tax on income from CJRS?

Yes – individuals will pay Income Tax and National Insurance on any payments received through this scheme as they are replacement for income in line with normal practice for benefits or grants that replace income.

Will this cover the cost of employer National Insurance contributions and employer pension contributions?

The employer will recover furlough pay from the state but will have to pay pension and national insurance costs up until 30 June 2021. From 1 July 2021, the employer will recover 70% of furlough pay and will have to pay 10%.

From 1 August 2021, the employer will only recover 60% of furlough pay, and will have to pay 20%. However, employees should continue to get the same amount i.e. 80%.

What businesses are eligible for this scheme?

All UK businesses are eligible, this includes:

  • businesses
  • charities
  • recruitment agencies (agency workers paid through PAYE)
  • public authorities

The scheme is open to all UK employers that created and started a PAYE payroll scheme on/before 19 March 2020 and have a UK bank account.

What workers are covered by this scheme?

The CJRS definitely applies to anyone employed through the PAYE system regardless of their employment contract. This can mean salaried employees, those on flexible or zero-hours contracts and agency workers. The scheme can cover part time or full time staff.

The scheme does not apply to self-employed people or contractors – see the section below for the support available to the self employed.

Can you be paid less than the National Minimum Wage (NMW) when placed on furlough at 80%?

Yes, you can. The NMW is payable as long as you are working or training as required by your employer. The rates increase on the 1 April 2021.

Please note that the National Living Wage for those age 25 and upwards will be payable from age 23 upwards from 1 April 2021.

There is more information available on the NMW on the Acas website here.

How does this work for those on zero-hour/flexible contracts/agency workers?

This scheme aims to support all those employed through the PAYE system regardless of their employment contract, including those on zero-hour contracts.

Zero-hour and flexible contracts can cover a whole range of working arrangements, and the 80% grant is applied to whichever is higher:

  • The earnings in the same pay period in the previous year; or
  • The average earnings in the whole previous 12 months (or fewer if they have worked for less time than this, including a part month calculation if they were taken in February 2020).

Can I be furloughed for a short period of time, e.g. a week or a couple of days, and then re-employed?

There is no limit on the number of hours that you can work. If you have a contract for 37 hours, you could work for 30 hours and be furloughed for the remaining 7 hours. This arrangement can be varied from week to week. You should be paid at your normal rate for the hours that you do work.

For any furlough claims up until 30 April 2021, you need to have been on your employers PAYE payroll on or before 30 October 2020 to be eligible. This means that your employer must have made a Real Time information payroll submission to HMRC on your behalf on or before 30 October 2020.

For any furlough claims from the 1st May 2021 until the end of September 2021, you need to have been on your employers PAYE payroll on or before 2nd March 2021 to be eligible. This means that your employer must have made a Real Time information payroll submission to HMRC on your behalf on or before 2nd March 2021.

You can be furloughed, come off furlough and be furloughed again.

What if I have already been made redundant?

If you were on the payroll on 23 September 2020 and were made redundant after that date (or left voluntarily) you can be rehired and placed on furlough. The decision is the employers to make, there is no obligation on them to do so. There may be a cost to the employer as they will need to pay the employers National Insurance and pension contributions. It may be worth asking them to do so.
If you have been made redundant and your employer has not offered to reinstate you and designate you a furloughed worker, you should get legal advice.

For any furlough claims up until 30 April 2021 you need to have been employed on or before 30 October 2020 to be eligible. This means that your employer must have made a Real Time information payroll submission to HMRC on your behalf on or before 30 October 2020.

Can my employer sack me while I’m on furlough? Is my employer allowed to sack me as soon as the furlough scheme comes to an end?

Yes, you can still be made redundant while on furlough or immediately after. There is no requirement to bring the employee back to work after the period of furlough. If an employee is made redundant during the period of furlough then grant payments will cease.

However, in both cases normal redundancy rules and protections will apply. Where a business feels that redundancy is the only option, this must still follow the rules which include giving a notice period and consulting staff before a final decision is reached. More information on redundancy can be found here.

If the CJRS is deemed a reasonable alternative to dismissal, there could be grounds for an unfair dismissal case, but again, this remains unclear for the time being.
If you have been made redundant you should legal advice.

My employer has reduced my hours but has not designated me a ‘furloughed worker’, does this scheme apply to me?

No, if you are still undertaking work for your employer – even if your hours are reduced – you are not eligible for the CJRS scheme. However, see above for part work and part furlough.

If your salary is reduced as a result of these changes, you may be eligible for support through the welfare system, including Universal Credit.

Do my holidays continue to accrue while I am on furlough?

Yes, they do in the same way as if you were working. It is now possible for employers to allow workers to carry forward accrued but untaken leave to the following two years.

Does my employer have to continue to pay in to my auto-enrolment pension scheme while I am on furlough?

Yes, they do. Deductions will also be made from your pay as your contribution to the pension scheme.

I am on Statutory Sick Pay, can my employer change me to a ‘furloughed worker’?

Employees on sick leave or self-isolating should get Statutory Sick Pay, but can be furloughed after this. Employees who are shielding in line with public health guidance can be placed on furlough.

If your employer currently has you on SSP, there is no reason you should not be moved to ‘furloughed’ status. If your employer does not approach you about designating you a ‘furloughed worker’ ask them about the scheme and your applicability.

I have more than one job, how does that work?

If you have more than one job, you can be furloughed by one or more of your employers. Each job is separate, and the cap applies to each employer individually.

How will my employer decide which workers to furlough?

It is essentially up to your employer which employees are furloughed and which continue working. Any decision to furlough a worker must be consented to by the worker, and equality and discrimination laws still apply to any decisions your employer is making.

Can I make my employer furlough me?

Your employer doesn’t have to furlough you, but you can ask them why they’ve said no and ask if they’ll change their decision. Check if they’ve seen the guidance for employers on GOV.UK. It explains who can be furloughed under the rules of the scheme.

If you look after someone and can’t be furloughed, you can check what to do if you need to be off work to care for someone.

If you feel that the decision to furlough certain workers and not others did not comply with equality and discrimination laws, you should get legal advice.

I am on Maternity Leave, contractual adoption pay, paternity pay or shared parental pay – does this apply to me?

Individuals who are on or plan to take Maternity Leave must take at least 2 weeks off work (4 weeks if they work in a factory or workshop) immediately following the birth of their baby. This is a health and safety requirement. In practice, most women start their Maternity Leave before they give birth.

If you are eligible for Statutory Maternity Pay (SMP) or Maternity Allowance, the normal rules apply, and you are entitled to claim up to 39 weeks of statutory pay or allowance.

If you qualify for SMP, you will still be eligible for 90% of their average weekly earnings in the first 6 weeks, followed by 33 weeks of pay paid at 90% of their average weekly earnings or the statutory flat rate (whichever is lower). The statutory flat rate is currently £151.20 a week, rising to £151.97 a week from 4th April 2021.

If your employer offers you enhanced (earnings related) contractual pay on Maternity Leave, this is included as wage costs that you can claim through the scheme. The same principles apply if you qualify for contractual adoption, paternity or shared parental pay.

Further information is available on maternity rights see maternityaction.org.uk

Further information on the furlough scheme is available from ACAS
Tel: 0300 123 1100
https://www.acas.org.uk/advice

Can I get help if I am self-employed?

If your business has been affected by coronavirus you might be able to get money from the government, for example if you’ve:

  • lost out on income; or
  • had to stop working to look after someone.

If you’re eligible, you can get money to cover lost income for 3 months. You won’t have to pay the money back, but you’ll have to pay tax on it.

You could get 80% of your average profits up to a maximum of £2,500 per month from the government. This is called the Self-employment Income Support Scheme.

Check if you can use the Self-employment Income Support Scheme

You can use the scheme if you’re self-employed or a member of a partnership.

Your self-employed profits must not be more than £50,000 per year and they must make up at least half of your total income. The government will look at your tax returns to see if you’re eligible – if you’re not sure you can check the rules on GOV.UK.

To work out your eligibility, HMRC will first look at your 2019 to 2020 Self Assessment tax return. If you’re not eligible based on your 2019 to 2020 Self Assessment tax return, we will then look at the tax years 2016 to 2017, 2017 to 2018, 2018 to 2019 and 2019 to 2020.

You must also have traded in both tax years:

  • 2019 to 2020 and submitted your tax return by 2 March 2021
  • 2020 to 2021

You must either:

  • be currently trading but are impacted by reduced demand due to coronavirus
  • have been trading but are temporarily unable to do so due to coronavirus

You must also declare that:

  • you intend to continue to trade
  • you reasonably believe there will be a significant reduction in your trading profits due to reduced business activity, capacity, demand or inability to trade due to coronavirus

You can find out more about the scheme from Febuary 2021 onwards on GOV.UK here. The UK government has announced that there will be a fifth and final grant covering May 2021 to September 2021.

How much will I get and how do I make a claim?

HMRC will calculate how much you should get based on your self-employed profits. You’ll get one payment to cover the whole length of the scheme. You can apply for the scheme on GOV.UK. If HMRC accept your application, they say they’ll pay you within 6 working days.

Getting Advice

ACAS Helpline: 0300 123 1100

Email: employment@gmlaw.org.uk

Contact: reception@gmlaw.org.uk or call  0161 769 2244

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