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Covid-19 Advice as a Tourism Business for Staff

We have highlighted practical advice and guidelines that should be helpful to you as a tourism business employing staff.

Useful advice for tourism businesses employing staff

Tourism NI COVID-19 business support hotline: If you are a tourism business with employment queries, you can request a telephone callback from tourismniclinic@cfrlaw.co.uk

1. What happens about pay in the following circumstances:

a) Where the staff member is diagnosed with Coronavirus

The employee/worker is entitled to sick leave, to Statutory Sick Pay and contractually agreed sick pay if any. The Statutory Sick Pay (General) (Coronavirus Amendment) Regulations (Northern Ireland) 2020 provide for categories of people to be treated as incapable of work for the purposes of statutory sick pay (SSP). The Regulations provide that where a person is isolating themselves from others in accordance with advice on Coronavirus, they are deemed to be incapable of work. That guidance is published in digital form only on www.publichealth.hscni.net/news/covid-19-coronavirus. 
The Government has indicated that employees/workers will be entitled to self-certify, and that during this emergency, employers will not be able to insist on a fit-note from a doctor after 7 days. It has also indicated that SSP will be paid from day one, and that employers of fewer than 250 will be able to reclaim the statutory sick pay element for at least 14 days. Full details of how this will work are awaited
Employers need to be clear whether staff are off sick, and unfit for work, whether the employee/worker is unable to work from home and is self-isolating, or whether the employee/worker is self-isolating but is able to work from home. In the latter case where they are fit to work the employee/worker will normally be entitled to full pay for work done.

b) Where the government has advised/told a category of worker not to come in.

The Government is taking powers to enforce quarantine. Clearly if a worker is legally required not to come in, the employer cannot insist on attendance or work, unless work from home is possible. In accordance with the SSP Regulations mentioned above at 1 it appears that SSP is payable in these circumstances. However, employees/workers may not be entitled to any contractual sick pay as they may not be sick. The terms of any sick pay policy would need to be reviewed. Employers may however consider deeming employees to be furloughed employees as outlined at 2 below.

c) Where a doctor has advised the employee that they should not be at work.

In this situation then provided the worker qualifies they will be entitled to SSP, and any contractual sick pay. Many sick pay policies will include a requirement for the employee to obtain a fit note from a doctor. Employers must be sensible in relation to the need for medical evidence for a period of absence where an employee is advised to self-isolate due to suspected COVID-19. As such, employers should make exceptions to their usual sick pay policies.

d) Where an employee is pregnant.

There is a general duty to carry out a risk assessment for pregnant employees/workers. Clearly this assessment should be updated in light of Coronavirus and government advice should be followed. Current advice is that pregnant employees should so far as possible practice social distancing, working from home if practicable. In this situation the pregnant employee will be entitled to SSP and any contractual sick pay.

Where there is an additional risk at work due to coronavirus on top of that outside work, and where it is not possible to avoid exposure to risks at work, then pregnant employees/workers have a right to be offered suitable alternative employment (i.e. work that could be done from home). In the absence of suitable alternative employment then there might be a need to suspend on medical grounds, which would be on full pay. If the suspension continues until the fourth week before the expected week of childbirth this may trigger the start of maternity leave. It is not clear whether this would constitute a medical suspension or sick leave. Another option open to employers would be to consider whether the employee could be designated a furloughed employee as outlined at 2 below.

e) Where the employee/worker is scared, or is reluctant to come into work for reasons to do with their own health.

Some people may be worried about catching Coronavirus and therefore be unwilling to come into work. If this is the case, you should listen carefully to the concerns of your staff member and, if possible, offer homeworking. The Government is advising all employers to encourage employees to work from home where possible.  If employees can work from home, then that should be accommodated without question.

If you cannot accommodate homeworking, then your employees/workers can also request time off as holiday or unpaid leave but there is no obligation on employers to agree to this. If an employee/worker refuses to attend work, you are entitled to take disciplinary action. However, dismissal is likely to be outside the range of reasonable responses and therefore unfair, at least in the current circumstances. In addition, much may depend on the particular circumstances-for example if the employee has a pre-existing medical condition that would put them at particular risk which might also amount to a disability requiring reasonable adjustments. If the employee is not self-isolating for a reason as provided in government guidance but just does not want to come in, then they may not be entitled to pay or sick pay. However, the employer should give sympathetic consideration to the situation. It may be possible to use annual leave, or in some circumstances if qualifying, unpaid parental leave. A dismissal for refusal to come into work in current circumstances could well lead to a successful claim for unfair dismissal. Employers must act reasonably.

f) Where schools close and the person needs to care for their children

All schools in Northern Ireland are now closed. In line with Government advice, all businesses and workplaces should encourage employees to work at home where possible. Where employees are able to work from home and have childcare responsibilities they may very well need some flexibility. They may not be able to work a traditional 9 -5 working pattern. Keep lines of communication open with employees in that situation and act reasonably. Where employees are unable to work from home and are required to come to work, you may need to grant unpaid leave.

2. Many employees in the hospitality sector have been laid off or are about to be laid off or put on short time working.  What is the position in relation to pay in light of the Government’s announcement on Friday (20th March) in relation to the Job Retention Scheme? 

The Government announced the Coronavirus Job Retention Scheme (“the Scheme”) on Friday 20 March 2020. Further guidance in relation to the Scheme was published on 26 March 2020 and is available here. The Government says that it expects the Scheme to be up and running by the end of April. What we know so far is that:

  • The Scheme is available to all UK employers in the private sector. However, where employers already receive public funding for staff costs, and that funding is continuing, employers will not usually be able to avail of the Scheme and have double recovery.The Scheme requires you to designate employees as “furloughed” employees. What this means is that employees will remain on the employer’s payroll as opposed to being laid off or being made redundant.
  • Furloughed employees must have been on your PAYE payroll on 28 February 2020, and can be on any type of contract.
  • The Scheme also covers employees who were made redundant since 28 February 2020, if they are rehired by their employer.
  • To be eligible for the Scheme, when on furlough, an employee can not undertake work for or on behalf of the organisation. This includes providing services or generating revenue. However, they are able to undertake training and do volunteer work, provided they do not provide services to or make any money for their employer.
  • An employer must then notify employees of this change in status, which is subject to existing employment law.
  • A new online HMRC portal is being set up and employers will submit information about the employees that have been furloughed.
  • HMRC will reimburse 80% of furloughed wage costs up to a cap of £2,500 per month, plus (not including) the associated employer NICs and minimum auto enrolment pension contributions on that wage.  Fees, commissions and bonuses are not included. The Government will issue more guidance on how employers should calculate their claims for Employer National Insurance Contributions and minimum automatic enrolment employer pension contributions, before the Scheme becomes live.
  • For employees whose pay varies, the employer can claim for the higher of (i) the same month's earning from the previous year (e.g. earnings from March 2019); or (ii) average monthly earnings in the 2019-20 tax year.
  • Employers can choose to top up to 100%, but do not have to.
  • Individuals are only entitled to the minimum wage for the hours they work.  So if they are furloughed and do not work, and 80% of their normal earnings would take them below the minimum wage based on their normal working hours, they still only receive 80% as they are not working.  However, they are entitled to be paid minimum wage for any time spent training.
  • If your employee has more than one employer, they can be furloughed for each job. Each job is separate, and the cap applies to each employer individually.
  • Furlough leave must be taken in minimum blocks of three weeks to be eligible for funding.
  • There is nothing in the guidance which prohibits rotating furlough leave amongst employees, provided each employee is off for a period of at least three weeks.
  • Employees that have been furloughed have the same rights as they did previously. That includes Statutory Sick Pay entitlement, holiday pay, maternity rights, other parental rights, rights against unfair dismissal and to redundancy payments.
  • The Scheme will run for 3 months initially, backdated to 1 March 2020 and may be extended.
  • To claim, you will need:
  • You will need to calculate the amount you are claiming. HMRC will retain the right to retrospectively audit all aspects of your claim.
  • Once HMRC have received your claim and you are eligible for the grant, they will pay it via BACS payment to a UK bank account.
  • You should make your claim in accordance with actual payroll amounts at the point at which you run your payroll or in advance of an imminent payroll.
  • You must pay the employee all the grant you receive for their gross pay; no fees can be charged from the money that is granted. You can choose to top up the employee’s salary, but you do not have to.
  • Payments received by a business under the scheme are made to offset these deductible revenue costs. They must therefore be included as income in the business’s calculation of its taxable profits for Income Tax and Corporation Tax purposes, in accordance with normal principles.
  • Businesses can deduct employment costs as normal when calculating taxable profits for Income Tax and Corporation Tax purposes.
  • It is expected that the Scheme will be up and running by the end of April 2020.
    • your ePAYE reference number;
    • the number of employees being furloughed;
    • the claim period (start and end date);
    • amount claimed (per the minimum length of furloughing of 3 weeks);
    • your bank account number and sort code;
    • your contact name;
    • your phone number; and

For businesses that need immediate assistance with cash flow then you may be eligible for a Coronavirus Business Interruption Loan. The Loan is being delivered by the British Business Bank and is designed to assist small and medium sized businesses access bank lending and overdrafts. Loans of up to £5 million in value are available.

3. What do we do if we have to make redundancies?

Redundancies may become necessary however in light of the Scheme outlined at 2 above it makes more sense in the short term for employees to be designated as “furloughed” employees so that the employers can avail of the Job Retention Scheme and keep employees on the payroll with an income for as long as possible.
If redundancy does become necessary, then good practice should be followed to avoid unfair dismissal claims. It is anticipated that employers will be able to rely on these exceptional circumstances to avoid an unfair selection for redundancy claim however there are no guarantees. It is important to follow the statutory procedures and good practice. Employers should consult with employee representatives where appropriate, particularly if involving 20 or more redundancies, to communicate with staff, send the appropriate letters, offer meetings (not face to face - perhaps over the telephone/skype etc.) and then give notice. See LRA Guidance on handling redundancies: -

https://www.lra.org.uk/resources/advisory-guide/advice-handling-redundancy


4. Can we amend the contracts of employment of our staff?

The terms of the individual contract should be reviewed as this may provide a process by which variations may be achieved.

Where substantial variations are being proposed to hours and or pay then staff would need to agree. Therefore, staff should be written to and their written consent to the variation should be sought. If consent is not forthcoming, then it may be possible to terminate the contract and re-engage employees under new contracts depending upon the variation involved. However, this may in reality constitute a potential redundancy situation and the employer would be required to pay notice pay and redundancy pay.

5. Do we have to pay staff if the business has to close?

See 2 above. If closure can be averted in the short term, then employers can avail of the Job Retention Scheme. If you decide to close permanently then you are required to comply with the redundancy provisions for staff. This would include notice pay and a redundancy payment. In many instances the employer may not be able to pay this and staff and employers will be seeking Government assistance.

6. How do we reduce the risk to our staff?

Government advice is that all employers should encourage homeworking where possible.  Where feasible, businesses should shut offices and enable homeworking wherever possible.  If you do require employees to attend the workplace then you should circulate an email/guidance requiring staff to be extra-vigilant with:

• Washing their hands and using a sanitiser gel if soap and water are not available;
• Using personal protective equipment where appropriate;
• Using and disposing of tissues to catch a cough or sneeze;
• Avoid touching eyes, nose and mouth with unwashed hands; and
• Avoid close contact with anyone, where possible.

If they have the space, you should distance staff from each other as much as possible.

You should keep the situation under review and act in line with Government guidance.  

7. Should we restrict staff from travelling for work purposes?

Yes. The Foreign and Commonwealth Office has now advised generally against all non-essential worldwide travel, both to restrict the spread of Coronavirus, and also because of practical concerns about being able to return home, being in quarantine or self-isolation.
The EU is currently drawing up plans. The Irish Government has made clear that it will not be shutting the border with Northern Ireland at present.

In order to try and restrict the spread of the virus all travel, even within Northern Ireland must be kept to a minimum. Where possible you should  arrange alternatives to meetings, such as telephone, video conference or similar calls.

If travel is essential then staff must avoid public transport and places where many people congregate.
In the current circumstances with the evident potential extra risk to health an employer should not insist on an employee/worker travelling for business purposes, especially to places known to have a higher risk of infection. Insisting, or even if the employee/worker agrees, may give rise to potential claims later.

8. Can we prevent staff from travelling for personal reasons?

In the absence of any contractual right it is unlikely that you can prohibit an employee/worker from deciding to travel - for example to look after a sick relative. You can point out that this may lead to a requirement that the staff member self-isolates on return.

9. Can we require staff to tell us if they are in a category of worker who should stay at home?

In light of updated Government advice, where possible employers should allow all employees to work from home. Employers may ask their staff about their health where this is necessary not only to protect the employee/worker’s health but also the health and safety of other staff. Therefore, it would be reasonable in our view to ask staff if they are in a category where the government has recommended that they should stay at home.

10. Can we ask people to stay at home and not come to work?

Much will depend upon the reason for the request to stay at home. You may ask people not to come in to work and you should indicate to them what will happen to their pay in these circumstances (see below). The first step will be to look at whether they can work from home in which case they should be paid as normal. If not or if there is no work for them to do employers should consider availing of the Scheme outlined at 2 above..

If you send staff home with no pay and without agreement of the contractual right to do so then you may be vulnerable to claims for unlawful deductions from wages, breach of contract and/or unfair constructive dismissal. However, in light of the Scheme now available there is no need to now do this.

11. Can we ask people to work from home and what issues does that raise?

Government advice is that all employers should allow employees to work from home where possible. The individual contract may provide for working from home and if they can carry out work at home most workers will agree to do this in the current circumstances. In the absence of a contractual right or agreement, if a staff member refuses to work from home that may be a failure to comply with a reasonable work instruction and could lead to disciplinary action. In the current circumstances however it would be highly unlikely that employees would resist the opportunity to work from home. A homeworking policy is advisable if you do not have one.

The employee/worker should be asked to confirm if they have any health and safety concerns about working from home and a discussion should occur to seek to resolve any issues if feasible.

12.  What assistance is available for the self employed?

The Self Employment Income Support Scheme (“SEISS”) has been introduced by the Government to help self employed workers or members of a partnership who have lost income due to coronavirus.

The SEISS permits a claim for a taxable grant worth 80% of trading profits up to a maximum of £2,500 per month for the next 3 months. The initial 3 month period may be extended by Government.

You can apply if you are self employed or a member of a partnership and you:

  • have submitted your Income Tax Self Assessment tax return for the tax year 2018-2019
  • 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 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 constitute 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 constitute more than half of your average taxable income in the same period

If you started trading between 2016-19, 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 risk assess any late returns filed before the 23 April 2020 deadline in the usual way.

The SEISS grant will be paid directly into eligible workers bank accounts in one instalment and so HMRC will make contact with anyone that is eligible to avail of the SEISS.  Unlike the Job Retention Scheme workers can continue to work and still avail of the SEISS grant. 

See also the following websites for up to date advice: -
https://www.lra.org.uk/coronavirus-advice-employers-and-employees
www.publichealth.hscni.net/news/covid-19-coronavirus.