UK: Hotels & COVID-19: Q&A for UK employers

What are our general obligations as an employer in respect of COVID-19?

The statutory obligation on employers to ensure the health and safety at work of their staff is a central issue for all employers.  Careful risk assessments will need to be carried out to ensure that staff can undertake their work in a safe way.  The precise steps that need to be taken once businesses are able to reopen are likely to depend on the precise form of the UK's lockdown exit strategy, but could include the introduction of new rules on physical distancing, more stringent hygiene policies, the provision of appropriate personal protective equipment (PPE), and/or careful consideration of the risks of a return to work for those with underlying health conditions or who are otherwise vulnerable.  The government has released guidance on working safely during the pandemic, which employers would be well advised to take into account as part of their planning.    

• Carry out and continually update risk assessments and consider any factors that may make employees particularly susceptible to infection (particularly those from vulnerable groups).  Put precautionary measures in place.  Health and safety measures are likely to require staff consultation, and risk assessments will need to be publicised to the workforce.  
• Advise employees not to attend your premises and to notify their HR representatives as soon as possible, if they are (i) unwell, (ii) shielding, (iii) in a high risk category or have been notified that they are high risk, and/or (iv) required to self-isolate for other reasons.  
• Communicate your approach with employees, particularly in relation to pay and working arrangements.  Give employees a clear contact point for any queries they may have. 
• Continue to circulate up-to-date information on good hygiene practices (such as reminders on action employees can take to help stop COVID-19 spreading) and provide any necessary equipment to facilitate this for those that are attending the workplace, such as hand sanitisers or PPE. 

Can we request or require information from hotel staff about potential or actual exposure to the virus?  Can or should we tell hotel staff or guests if a member of staff is diagnosed or shows symptoms of COVID-19?

The Information Commissioner's Office states that, whilst employers have health and safety obligations in respect of employees, this doesn’t necessarily mean employers need to gather lots of personal information about employees.  Employers should collect no more data than needed, and maintain appropriate safeguards whilst doing so.  

• You can and should require employees to notify HR as soon as possible, if they are (i) diagnosed with COVID-19 or are otherwise unwell, (ii) shielding, (iii) in a high risk category or have been notified that they are high risk, or (iv) required to self-isolate for other reasons.  You can also ask staff to inform you if they are experiencing symptoms.
• You can take temperature readings from employees if strictly necessary to do so, i.e. where alternative measures (such as remote working) are not possible. 
• You should inform staff and guests who are potentially affected and provide updates.  This should be done as far as possible without naming or identifying the affected individual, and in any event you should not provide more information than necessary.  You should also follow up with high risk employees and guests, and consider providing additional information or identifying the affected individual to ensure they have sufficient information to take appropriate precautions.

What should we do if a staff member tells us they are unwell (whether this is as a result of COVID-19 or otherwise)?

You should manage employee absences in the same way as usual – determine the reason for absence, notify the employee, take any further action required and pay them accordingly.  With regard to the risk to others, you should identify any individuals who may be at risk as a result of the suspected or confirmed infection of the employee and notify them as appropriate.  If the individuals are still working, they should be instructed not to attend work and to follow government guidance regarding self-isolation (if they have COVID-19 symptoms).

What if we no longer need hotel staff and can’t afford to pay them – what are our options?

A number of options may be open to you.

• You can agree with employees to reduce their hours and/or pay.  Whilst this would ordinarily meet stiff resistance from employees, hospitality employers in particular are finding that staff are much more willing to engage with such proposals at this time, on the basis that they are a way of avoiding more drastic cost-cutting measures such as redundancies.
• Under the CJRS, employers can "furlough" employees (i.e. place them on leave of absence) and apply for a grant that covers 80% of their usual monthly wage costs, up to a cap of £2,500 a month, plus the associated employer NICs and pension contributions on that pay. 
• Alternatively, where there is a reduced need for staff to carry out particular roles there may be grounds to safely dismiss employees by reason of redundancy.  The risks are low and the costs relatively minimal where employees have less than two years' service (hence this approach has been adopted by a number of hoteliers given the usual level of staff turnover), but there are additional requirements to inform and consult on a collective basis and notify the government of proposed redundancies where you propose to make 20 or more employees redundant at one site within a 90 day period.  These collective consultation obligations apply regardless of length of service and impose time constraints on dismissals.   

You should consider the long term as well as the short term needs of the business, as this will inform your approach.  For example, it may be desirable to furlough some staff and make others redundant, depending on whether there is likely to be a continued need for employees to perform particular roles post-lockdown.  

Where can we find out more about furlough and the Coronavirus Job Retention Scheme (CJRS)?

The CJRS claims portal went live as of 20 April 2020, and can be found here.  According to recent government guidance and statements, together with the Treasury Direction issued on 16 April 2020, the following time periods apply.

• Grants are available for a period starting on 1 March 2020.  It has recently been announced that the CJRS will be extended in its current form until 31 July 2020, and to the end of October 2020 with modifications (such as permitting employees to perform part time work during furlough and sharing of the cost between government and employer).
• The cut-off date for the CJRS has been pushed back so that it covers employees on the payroll up to and including to 19 March 2020 (rather than 28 February 2020 as originally stated).  However, there is now a requirement that an employer must have notified HMRC of employees for whom it is claiming under a Real Time Information (RTI) submission prior to 19 March 2020.  Employers will need to check this carefully, as it appears possible that, some employees who were initially thought to be covered may now not be due to the RTI requirement.

The position with regard to requiring workers to take or not to take holiday differs for statutory holiday and contractual holiday.

• Statutory holiday: The 5.6 weeks per year (28 days for a full time worker), guaranteed under the Working Time Regulations 1998.  You can require staff to take their statutory holiday either at a specific time or during a specific period, as long as you give twice as much advance notice as the amount of holiday. For example, if you want staff to take two weeks' holiday, you would need to give them four weeks' notice.  You can also require staff not to take their statutory holiday by giving notice equal in length to the number of days to which the notice relates. 
• Contractual holiday:  Depends on the terms of the contract or your holiday policy.

Any holiday taken must be paid at the usual full rate.  The government has relaxed the rules on carry-over of unused leave, so that workers have the right to carry forward the four weeks of leave guaranteed under the European Working Time Directive (which cannot in normal circumstances be carried over) where it was not reasonably practicable to take it in the current leave year “as a result of the effects of the coronavirus (including on the worker, the employer or the wider economy or society)”.  Any carried-over leave must then be taken within the next two leave years. 

What if hotel staff live on-site in my accommodation - do we have to let them stay there? 

Yes.  Unless there is a contractual right to require them to vacate, employees will continue to retain their contractual entitlements including in respect of accommodation.  If this is their only accommodation, there may be long-term reputational risk associated with evicting employees during the COVID-19 crisis.  If you require payment of rent for accommodation or usually deduct this from pay, you may need to consider how to manage this and whether any changes in pay will affect this, particularly if you wish to retain staff.

Both lay off and short-time working may in some circumstances trigger an entitlement to statutory redundancy pay.  The rules around this are complex.