| HR & EMPLOYMENT LAW
Jackie le Poidevin, Editor-in-Chief, HR Adviser |
What to Do if You have Employees Returning from a Holiday in Spain (or Another Country Requiring Quarantine)
On 25 July, the Government re-imposed a 14-day quarantine period for anyone returning to the UK from Spain. It has also warned that if there’s a spike in coronavirus cases at any other holiday destination, it ‘will not hesitate’ to remove the country from its travel-corridor list. Here, we look at 5 options for dealing with the problem of staff members unexpectedly being unable to return to the workplace at the end of their annual leave.
- Withhold Pay
Unless an employee is actually ill, they are not entitled to statutory sick pay (SSP) during quarantine after a holiday (in contrast to the position on ‘normal’ self-isolation). Acas advice states that, ‘an employer could still offer to pay this if they wanted to’ – but if you’re a small employer, the Government won’t reimburse the SSP as it would for self-isolating employees. Any pay that you give will set a precedent and you’ll have to treat other employees consistently.
Employees also don’t appear to be entitled to normal pay during quarantine – even if, like holidaymakers currently in Spain, they were caught by surprise by a change in travel advice. They might try to claim they are ready and willing to work – which would normally mean you have to pay them – but have been prevented from doing so.
However, this seems a weak argument, as someone isn’t really able to attend work if they’re in compulsory quarantine. You’re therefore not obliged to pay them if they’re not working.
- Arrange for the Employee to Work from Home
This is the ideal scenario, if the person’s job allows or you have other appropriate work available. They can do something productive for you during quarantine, even if this is on a part-time basis, and continue to receive pay for the hours they work.
- Extend the Annual Leave
If the employee has any outstanding holiday entitlement, another option is to suggest they take this during the quarantine period so they don’t lose out on pay. If they can rearrange their holiday, you might also suggest they come back early so they can complete some of the quarantine during their booked annual leave.
- Furlough the Employee During Quarantine
Acas has suggested this as an option. The employee would already have to have been furloughed as new entrants to the scheme are no longer allowed.
This seems against the spirit of the Government’s guidance, though, which states that: ‘Employees should not be placed on furlough for a period simply because they are on holiday for that period.’ Admittedly, quarantine isn’t holiday but it would be furloughing the employee as a direct consequence of them having gone on holiday.
If you go down this route and HMRC suggest this is a misuse of furlough money, you could presumably defend yourself by saying you were following Acas advice (see: bit.ly/3ff3VUm).
- Cancel the Holiday
An employee may have a holiday booked to Spain but not have left yet. Or you may now be having second thoughts about holidays booked to other destinations, given that there’s no guarantee employees won’t have to quarantine on their return. Although you don’t have to pay the employee during quarantine, you may not be able to spare them for those extra 2 weeks.
You do have the right to withdraw your permission for the employee’s trip. If they go anyway, you can take disciplinary action. However, you should think very carefully before going down this route because:
- You must give as much notice of the cancellation as the length of the annual leave – so 2 weeks’ notice for 2 weeks’ holiday, for example. If the holiday is imminent, it will therefore be too late to withdraw authorisation.
- The employee will expect you to pay any non-refundable costs they incur when cancelling the holiday.
- The employee may resign and claim constructive unfair dismissal if they have more than 2 years’ service and can successfully argue you acted unreasonably. For example, they might say cancelling left them out of pocket or you could have let them go ahead with the trip followed by quarantine.
Tips
- To reduce the risk of disputes, you should make your policy on foreign holidays clear to employees in advance. Explain there’s a risk they may have to quarantine on their return, even if they choose a destination that’s currently exempt from the requirement. Explain what will happen in this case; for example, if they can’t do their job from home, they won’t be paid during quarantine except for any time that they take as additional annual leave.
- If you have any employees already in Spain, send them a text or email explaining that they must not come into work when they return and what your position on quarantine is.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Company Car Availability During COVID-19 and the Impact on the Car Benefit Charge
Car use fell considerably during the COVID-19 pandemic. Employees were asked to work from home if they could, millions were furloughed and those particularly at risk from the virus were asked to shield. As a result, employees who have a company car may have made little use of it, either for business or pleasure. In these circumstances, can they expect a reduction in the amount of tax that they pay in respect of their company car?
The Charge
The tax legislation imposes a tax charge under the benefit in kind rules where a company car is ‘available’ for the private use of the employee or members of his or her family or household. The legislation deems a car to be available for private use, unless that use is specifically prohibited and there is, in fact, no actual use.
Deduction for Periods of Availability
When working out the company car tax charge, a deduction is given for certain periods when the car is not ‘available’ for the employee’s private use. The following periods of unavailability trigger a deduction:
- Where the car is made available during the tax year, the period from the start of the tax year to the date on which the car was first made available to the employee.
- Where the car ceases to be available to the employee throughout the whole tax year, from the date that the car ceases to be available to the end of the tax year.
- Periods of 30 days or more throughout which the car was not available to the employee.
During the COVID-19 pandemic, a deduction may be permitted under the legislation if the car is unavailable for private use for at least 30 days. The challenge is convincing HMRC that this is the case.
HMRC Guidance
HMRC have published guidance on the treatment of certain expenses and benefits which may be provided to employees during the COVID-19 pandemic. In the guidance, HMRC state that where an employee has been furloughed or is working from home because of Coronavirus and the employee has been provided with a company car that they still have, the car should be treated as being ‘available’ for private use during this period even if the employee is:
- Instructed to not use the car.
- Asked to take and keep a photographic image of the mileage both before and after a period of furlough.
- Unable to physically return the car or the car cannot be collected from the employee.
Where restrictions on the freedom of movement prevent a car from being handed back or collected, HMRC accept that the car is unavailable where the contract has terminated from the date that the keys, including the fobs, are returned to the employer or to a relevant third party. Where the contract has not terminated, HMRC only regard the car as being unavailable from the date 30 days after the keys are returned.
In HMRC’s view, where they regard a car as being ‘available’ according to their guidance, they will perhaps be reluctant to allow a reduction in the car benefit charge.
Reliance on the Legislation
The test of ‘unavailability’ set by HMRC in their guidance goes further than that required by the legislation. The legislation requires only that private use is prohibited and no private use actually takes place; there is no requirement in the legislation that they keys are returned.
Where an employee is instructed not to use the car and evidence can be provided that it was not indeed used, there are good grounds for a deduction where the period of unavailability exceeds 30 days, even if the keys are not returned. If HMRC, disagree, it is perhaps worth a challenge.
| HEALTH & SAFETY
Paul Smith, Editor-in-Chief, Health & Safety Adviser |
HSE Launches New Social Distancing Guidelines: 7 Key Focus Areas
Throughout the COVID-19 crisis, social distancing has proved one of the most important safeguards in preventing the spread of infection and keeping people safe at work. It is therefore an essential pillar of ‘COVID-Secure’. But it is not always easy to apply in practice, given that very few workplaces were designed with social distancing in mind. So, what should we be doing in practice? The HSE has set out its expectations in new guidance which we summarise here.
The recommended approach is to first identify shared areas (kitchens, lifts, meeting rooms and toilets) and assess how best to maintain social distancing. You should also consider possible pinch points such as narrow corridors, staircases and doorways. The HSE underlines that ‘you may need to put in place a combination of control measures to keep people safe’ but here we just focus on social distancing. Where achieving this is difficult, though, it makes other measures (e.g. use of screens, cleaning and handwashing) even more vital.
- General Social Distancing Measures
- Limit the number of people at any one time using any areas that may become congested e.g. lifts.
- Use floor markings to maintain social distancing.
- Minimise contact between people, using barriers or screens.
- Display signs reminding people to socially distance, wash hands and not touch their faces.
- Work with landlords and other tenants in multi-tenant sites or buildings to ensure consistency in shared areas such as receptions and staircases.
- If canteens are used, consider if food and cutlery can be delivered to tables. Where canteens need to serve food, reconfigure seating and tables to maintain spacing and reduce face-to-face interactions. Mark the floor in case furniture is accidentally moved.
- Stagger start, stop and break times to limit the numbers of people using the facilities.
- Create additional break areas such as in unused rooms or even outside.
- Ensure only essential participants attend meetings; they should socially-distance throughout.
- Toilets
You should not restrict access to toilets etc. (e.g. ‘these toilets may only be used by staff and are closed to visitors/drivers’) as handwashing is a vital COVID-19 precaution. You can, though:
- Take some static facilities out of use where they are less than 2m apart. If this includes toilet facilities such as urinals, check you still have a sufficient number of toilets in your workplace.
- Mark the floor to show people the right distances or where to stand.
- Use ‘one in, one out’ systems if it isn’t otherwise possible to maintain social distancing.
- Workstations
- Look at how you can organise workstations: layouts and processes should allow people to work 2m apart from each other wherever possible.
- Use floor tape or paint to mark areas.
- Manage overall occupancy
- Avoid, or at least limit, any sharing of workstations (e.g. hot desking).
- (Where workstations must be shared) try to keep the same set of people using them.
- Arriving at and Leaving Work
- Limit the number of people to avoid overcrowding. Think about if you can you arrange partial working from home for some staff or increase shift working.
- Provide more entry points to reduce congestion.
- Use markings and introduce one-way flow at entry and exit points.
- Put in place procedures for dealing with deliveries and visitors. Allocate time slots for customers.
- Movement Around Buildings and Worksites
- Use any unused spaces to allow people to spread out.
- Reduce access and movement by discouraging non-essential trips within buildings and sites, for example, by restricting access to some areas and using radios, phones and other comms tools.
- Reduce job and location
- Introduce more one-way flow through buildings.
- Organise people into teams (‘bubbles’) which then socially distance from other teams. Keep workers in the same teams wherever possible, and the bubbles as small as possible.
- Organise the space so that people are side-by-side or facing away from each other rather than face-to-face.
- Using Vehicles
- Limit passengers in corporate vehicles such as work minibuses. This could include leaving seats empty.
- Avoid multi-occupancy vehicles. Where such vehicles are though used, people should socially distance through suitable seating arrangements. Arrange additional transport if necessary and keep journeys as short as possible.
- Where more than one person is travelling and they need an overnight stop, plan ahead to ensure there is suitable accommodation secured to ensure social distancing.
- Finally…
You should also consider how to maintain social distancing in an emergency e.g. during a fire evacuation.
HSE guidelines apply in England, Scotland and Wales (Northern Ireland has its own body, the HSENI). COVID-Secure guidelines vary slightly across the four UK devolved governments so it is well worth checking the rules for your specific location.