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Home › FAQs › What options do I have if my employee, who can work from home, is struggling to do so because they have young children at home who need “teaching” and supervision?

What options do I have if my employee, who can work from home, is struggling to do so because they have young children at home who need “teaching” and supervision?

This is likely to be a common situation and employers and employees are going to have to take a pragmatic approach. You could enter into a temporary flexible working arrangement perhaps agreeing to vary working hours/days or reducing targets or agree to use some annual leave.

Employees could ask to take a period of unpaid leave, asserting their right to time off to care for a dependant but the lack of pay is likely to be unappealing.

Alternatively employees who are unable to work because they have caring responsibilities as a result of COVID-19, which includes childcare responsibilities, can be furloughed.

Related FAQs

What is the Clinical Negligence Scheme for Coronavirus?

The Government has recently passed the Coronavirus Act 2020 in a response to the challenges posed by the pandemic, especially in relation to those facing the NHS during this time of crisis.  NHS Resolution worked closely with the Department for Health and Social Care to draft a clause within the Coronavirus Act providing indemnity for clinical negligence for any coronavirus related activity not currently covered by an existing arrangement.  In order to implement this clause, NHS Resolution has launched the Clinical Negligence Scheme for Coronavirus (“CNSC”).

It is intended that the CNSC will cover new contracts put in place for healthcare arrangements to respond to coronavirus, such as organisations supporting testing arrangements or Independent Contractors making agreements with NHS England and NHS Improvement to release capacity to the NHS.  Membership is not required for this scheme and the contracts entered into will automatically provide indemnity under the scheme.

The CNSC will not replace existing indemnity provisions made under the Clinical Negligence Scheme for Trusts (“CNST”) and it has been confirmed that the new Nightingale Hospitals will be covered by CNST rather than CNSC.  Similarly, NHS Resolution have confirmed that those doctors and nurses returning to practice from retirement, or those joining as students will be covered by the CNST or, where applicable the Clinical Negligence Scheme for General Practice (“CNSGP”).  The CNSC will not cover returning midwives to the profession, but the Royal College of Midwives have confirmed that they will extend all of the benefits of membership including Medical Malpractice Insurance to returning retired midwives.

For more information regarding this please click here.

Last updated on 7th April, 2020

How is an establishment defined?

The definition of a relevant establishment is a question of fact for an Employment Tribunal. Guidance from case law says that ‘establishment’ should be interpreted very broadly (so as to avoid employers escaping the need to collectively consult), and may consist of:

  • A distinct entity
  • With a certain degree of permanence and stability
  • Which is assigned to perform one or more tasks
  • Which has a workforce, technical means and a certain organisational structure to allow it to do so

However, there is no need for it to have the following:

  • Legal, economic, financial, administrative or technological autonomy
  • A management which can independently effect collective redundancies
  • Geographical separation from the other units and facilities of the undertaking

Last updated on 7th May, 2020

How much will I get under the scheme?

If you are eligible you will get a taxable grant of 80% of the average profits from the following tax years (where applicable):

2016-2017

2017-2018

2018-2019

HMRC will add the total profit in each of the three tax years (if applicable). This will then determine the monthly payment, subject to the cap of £2500.

Last updated on 31st March, 2020

What are the limitations of furloughing staff for publicly funded organisations?

The guidance from the Government concerning private sector organisations is very different from the guidance for public sector and organisations that receive public funding. The guidance states:

“The government expects that the scheme will not be used by many public sector organisations, as the majority of public sector employees are continuing to provide essential public services or contribute to the response to the coronavirus outbreak.

Where employers receive public funding for staff costs, and that funding is continuing, we expect employers to use that money to continue to pay staff in the usual fashion – and correspondingly not furlough them. This also applies to non-public sector employers who receive public funding for staff costs. Organisations who are receiving public funding specifically to provide services necessary to respond to Covid-19 are not expected to furlough staff.”

This guidance isn’t particularly clear but it appears that there is a recognition that there are different types of organisations which could be caught by this:

  1. Organisations who will be required to provide frontline services during the Covid-19 response. It is interpreted that NHS organisations such as NHS Trusts will fall firmly into this category. Employees of such organisations are expected not to be furloughed and to continue to work and be paid their normal salary in the usual way.
  2. Organisations who receive public funding to provide services to respond to the Covid-19 crisis. These organisations are not expected to furlough their staff. The type of organisation that would fit into this category are those that have been commissioned to developing breathing apparatus or testing kits to meet the needs of the healthcare sector during the peak of the pandemic.
  3. Organisations who receive public funds for staff costs to operate services. Employers are expected to continue to pay staff if the money to pay them is publicly funded. It is strongly inferred that this is irrespective of whether such staff have any work to perform. The type of organisation that is likely to fall into this category are GP practices, charities and private sector companies that have won contracts with the public sector.

Last updated on 9th April, 2020

What criteria will HMRC use to assess applications for furlough from publicly funded organisations?

The government released further clarification on the Coronavirus Job Retention Scheme on 4 April. The wording referred to concerning public sector organisations and organisations receiving public funding remains the same.

The revised guidance does provide a helpful insight into how HMRC will deal with applications made to it for assistance under the scheme. It appears that there won’t be a particularly forensic approach adopted by HMRC. The guidance says you can furlough staff if you cannot maintain your current workforce because your operations have been severely affected by coronavirus.

It goes on to say that all employers are eligible to claim under the scheme and the government recognises different businesses/organisations will face different impacts from coronavirus. The need to demonstrate the impact of coronavirus on your business/organisation is not one of the criteria businesses/organisations are going to need to satisfy, so the government does not appear to intend to set a specific test to determine if a business/organisation is “severely impacted by coronavirus”. It is hoped that this should provide additional comfort to publicly funded organisations facing significant restrictions to their operations during the Covid-19 crisis.

Last updated on 9th April, 2020