Guidance for congregations with employees

Woman holding a phone with laptop
Updated 27 October 2020

Updated with information about the new Government Job Support Scheme

The UK and Scottish Governments have made it clear that easing Covid-19 restrictions require a flexible approach. This is particularly evidenced by those Governments taking different approaches to the lifting of restrictions and guidance issued to the public.

In light of this and given that the response to the pandemic is fluid and fast moving, the most up-to-date source of information on the easing or re-imposition of restrictions will be the Scottish Government website.

This briefing note is intended to provide an overview of current COVID-19 guidance for congregations with employees. If more information is required in relation to employment, or in relation to other aspects of government guidance, congregations are encouraged to review the information available on the Church of Scotland website and to contact the appropriate department(s) of the national offices as required.

Government Job Support Scheme

Overview

The UK Government is introducing a new wage subsidy scheme, the Job Support Scheme (“JSS”), to begin once the Coronavirus Job Retention Scheme (“CJRS”) ends on 31 October 2020.

HMRC has issued guidance confirming that the JSS will apply for 6 months from 1 November until 30 April 2021.  The JSS, which will be payable in arrears, is divided into two grants: JSS Open and JSS Closed.

The JSS Open scheme is open to employers who have had a downturn in revenue as a result of the COVID-19 pandemic. The JSS Closed scheme is open to employers who have been legally required to close premises due to coronavirus restrictions set by one or more of the UK Governments.

If congregations have employees who have reduced work in addition to employees with no work due to premises being closed in line with restrictions, they may be eligible to apply for both grants.

Further guidance on the steps employers need to take to calculate and make a claim to the Job Support Scheme is expected to be published by the end of October. In the meantime, congregations are encouraged to consider the following information in order to prepare for the CJRS ending.

Employer Eligibility

  • Employers are eligible even if they have not previously used the CJRS. This means that employers can access the JSS for new staff (i.e., those hired since March 2020 but before 24 September).
  • Employees must have been on an employer’s PAYE payroll on or before 23 September 2020. This means a Real Time Information (RTI) submission notifying payment to that employee to HMRC must have been made on or before 23 September 2020.
  • If employees ceased employment after 23 of September 2020 and were subsequently rehired then employers can claim for them
  • An individual is an employee for the purposes of the JSS if they are treated as an employee for Income Tax purposes
  • Employees can be on any type of contract, including zero hours or temporary contracts
  • Agency workers are regarded as employees of an employment agency for the purposes of the JSS, provided they are employees for Income Tax purposes
  • Employers will be able to top up employee wages above the level of minimum contributions at their own expense if they wish
  • Employers cannot claim both JSS Open and JSS Closed in respect of a single employee for the same day
  • Employers are only eligible to claim for periods during which the relevant coronavirus restrictions are in place. Employers will not be able to claim JSS Closed to cover periods after restrictions have lifted and the premises are legally allowed to reopen. They may then be able to claim JSS Open if they are eligible.
  • The Job Support Scheme grant will not cover National Insurance contributions (NICs) or pension contributions. These contributions remain payable by the employer.
  • Employers must deduct and pay to HMRC income tax and employee NICs on the full amount that is paid to the employee, including any amounts subsequently met by a scheme grant
  • Employers must also pay to HMRC any employer NICs due on the full amount that that is paid to the employee, including any amounts subsequently met by a scheme grant
  • Employers must report these payments via a Full Payment Submission (FPS) to HMRC on or before the pay date in the normal way
  • Employers and Employees must also still pay pension contributions in accordance with the applicable pension scheme terms, unless the employee has opted out or stopped saving into their pension
  • Employers must have paid the full amount claimed for an employee’s wages to the employee before each claim is made. They should also pay the associated employee tax and employee and employer National Insurance contributions to HMRC.
  • Employers cannot enter into any commitment or transaction with the employee which would reduce wages below the amount claimed (for example, a salary sacrifice scheme). This includes any administration charge, fees or other costs in connection with the employment. Where an employee had authorised their employer to make deductions from their net salary, these deductions can continue while the employee is working reduced hours provided that these deductions are not administration charges, fees or other costs in connection with the employment (for example, pension contributions and charitable giving).
  • Employees will be able to check if their employer has made a Job Support Scheme claim relating to them via their Personal Tax Account
  • Please note, HMRC advise that this is not a complete list of all the conditions for eligibility. Further guidance will be published by the end of October.
  • The JSS will not be available in respect of staff who are made redundant and/or are working their notice period

The JSS Open Scheme

The JSS Open scheme will be open to employees working a minimum of 20% of their usual hours, with the employer continuing to pay them as normal for the hours worked. Alongside this, the employee will receive 66.67% of their normal pay for the hours not worked—this will be made up of contributions from the employer and from the government.

The employer will pay 5% of reference salary for the hours not worked, up to a maximum of £125 per month, with the discretion to pay more than this if they wish. The government will pay the remainder (61.67%) of reference salary for the hours not worked, up to a maximum of £1,541.75 per month. This will ensure employees continue to receive at least 73% of their normal wages, where they earn £3,125 a month or less.

Employee Eligibility

  • In order to apply for a grant under the JSS Open scheme, the employer will need to have been affected by a decrease in revenue as a result of COVID-19 and employees must be working at least 20% of their usual hours
  • Employees will be able to cycle on and off the scheme and do not have to be working the same pattern each month, but each short-time working arrangement must cover a minimum period of seven days

Temporary Working Agreements

To be eligible for the grant, employers must have a written agreement with their employee evidencing that they have been offered a temporary working agreement. The agreement must be available for view by HMRC on request.

This temporary working agreement must cover at least 7 consecutive days.

Employers should discuss with their staff and make any changes to their employment contract by written agreement.

When employers are making decisions, including deciding to whom they should offer reduced hours, equality and discrimination laws will apply in the usual way.

Employers must maintain records relating to the terms of the temporary working agreements for each employee, and:

  • Make sure that the agreement is consistent with employment, equality and discrimination laws;
  • Keep a written record of the agreement for 5 years; and
  • Keep records of how many hours employees work and the number of usual hours they are not working.

A Church of Scotland template will be made available as soon as possible once HMRC has published its further guidance at the end of October.

Making a claim

For pay periods ending and paid in November, employers will be able make their first claim for staff salary from 8 December 2020 on the GOV.UK website. Subsequent months will follow a similar pattern, with the final claims for April being made from early May. More detail about this process will be published by HMRC by the end of October.

Agents who are authorised to submit PAYE online for employers will be able to claim on their behalf.

Under JSS Open, employers can claim for government support for their employees’ wages (including employees on National Minimum Wage) up to a maximum of £1,541.75 per month, depending on how many hours they work.

Employers cannot claim for employees’ wages for any time they spend working.

Claims should commence from the date that the employee starts working reduced hours or the date when working reduced hours is confirmed in writing (whichever of these dates is later), not when the decision is made. Claim periods can start from 1 November 2020 onwards. Claims are subject to a maximum reference salary of £3,125 per calendar month.

The amount an employer should use for calculating an employee’s reference salary is made up of the regular payments they are obliged to make, including:

  • Regular wages
  • Non-discretionary payments for hours worked, including overtime
  • Non-discretionary fees
  • Non-discretionary commission payments
  • Piece rate payments

Calculations cannot include:

  • Payments made at the discretion of the employer or a client, where the employer or client was under no contractual obligation to pay, including:
  • Any tips
  • Discretionary bonuses
  • Discretionary commission payments
  • Non-cash payments
  • Non-monetary benefits like benefits in kind (such as a car) and salary sacrifice schemes (including pension contributions) that reduce an employees’ taxable pay

Reference salary calculations

Reference salary for employees with fixed pay

For employees who are paid a fixed salary, the Reference Salary is the greater of:

  • The wages payable to the employee in the last pay period ending on or before 23 September 2020; or
  • The wages payable to the employee in the last pay period ending on or before 19 March 2020. This may be the same salary calculated under the CJRS scheme.

Reference salary for employees with variable pay

For employees whose pay is variable the Reference Salary is the greater of:

  • The wages earned in the same calendar period in the tax year 2019 to 2020;
  • The average wages payable in the tax year 2019 to 2020; or
  • The average wages payable from 1 February 2020 (or the employee’s start date if later) until 23 September 2020.

The JSS Closed Scheme

Employers that have been legally required to close their premises as a direct result of coronavirus restrictions set by one or more of the governments of the UK can apply to the scheme to support the wage costs of employees who have been instructed to cease work in closed premises.

Each employee who cannot work due to restrictions will receive two thirds of their normal pay, paid by their employer and fully funded by the government, to a maximum of £2,083.33 per month. Their employer may pay more than this if they wish.

Employees may also be entitled to additional financial support, including Universal Credit.

Employee Eligibility

Eligible employers will be able to claim the JSS Closed grant for employees:

  • Whose primary work place is at the premises that have been legally required to close as a direct result of coronavirus restrictions set by one or more of the four governments of the UK; and
  • Whom the employer has instructed to cease work for a minimum period of at least 7 consecutive calendar days.

Temporary Working Agreements

Employers should discuss with their staff and make any changes to their employment contract by written agreement.

When employers are making decisions in relation to the process, including deciding who they should instruct to cease work, equality and discrimination laws will apply in the usual way.

To be eligible for the grant, employers must have reached written agreement with their employee(s) that they have been instructed to and agree to stop working for a minimum of 7 consecutive calendar days. The agreement must be available for view by HMRC on request.

Employers must maintain records relating to the terms of these arrangements for each employee. They must:

  • Notify the employee of the agreement in writing
  • Make sure that the agreement is consistent with employment, equality and discrimination laws
  • Keep a written record of the agreement for 5 years
  • This agreement must be made available to HMRC on request

The employee must agree to the new arrangement.

A Church of Scotland template will be made available as soon as possible once HMRC has published its further guidance at the end of October.

Making a claim – JSS Closed

HMRC advises that information relating to this will be made available at the end of October.

Training

Employees can undertake training in working hours while being claimed for under the Job Support Scheme. Hours that employees spend training are paid for by the employer at their full rate of pay and will count towards 20% of their usual hours.

Where time spent on training attracts a minimum wage entitlement in excess of the grant payment, employers will need to pay the additional wages.

National Minimum Wage

Employees are entitled to the National Living Wage, National Minimum Wage or Apprentices Minimum Wage for the hours they are working or treated as working (such as training undertaken at the request of the employer in non-working hours) under minimum wage rules. For JSS Open, at least minimum wage rates must be paid for all hours worked or treated as worked.

Calculations

There are different calculations for working out an employee’s usual hours - fixed or variable.

Employees who work fixed hours:

For employees contracted for a fixed number of hours and whose pay does not vary according to the number of hours they work, usual hours are calculated based upon the greater of:

  • The hours that the employee was contracted for at the end of the last full pay period ending on or before 23 September 2020
  • The hours that the employee was contracted for at the end of the last full pay period ending on or before 19 March 2020. This may be the same number of hours calculated under the Coronavirus Job Retention scheme (NB. if employees moved to part-time working, this may be varied. Full details will be included in forthcoming Guidance)

This should include hours paid as annual leave and statutory leave.

Calculation example 1: fixed hours and fixed salary employee

An employee has worked full time, from Monday to Friday, for A Ltd since 2011 and is paid £2,250 gross at the end of every calendar month. The employee has always been contracted to work 37.5 hours per week. A Coronavirus Job Retention Scheme grant was not claimed for the employee.

A Ltd is a small employer and meets all the eligibility criteria to qualify for Job Support Scheme.

The employee enters into a JSS Open temporary working agreement with A Ltd on 2 November 2020 to work Mondays and Tuesdays (7.5 hours each day, equating to 15 hours per week) from 2 November 2020 to 31 December 2020, at which point the position will be reviewed. The employee’s pay for the working hours in November is £945.

A Ltd calculates the amount of the JSS Open grant for the pay period 1 November 2020 to 30 November 2020 (one calendar month).

The employee’s usual hours are calculated for the days on which the employee is on a JSS Open temporary working agreement within the pay period (2 November 2020 to 30 November 2020). The employee’s usual hours are calculated by A Ltd to be 155 hours:

The steps to calculate the fixed employee’s usual hours are:

  1. The greater of the number of hours contracted for at the end of the last pay period before 23 September 2020 (37.5) and the number of hours contracted for at the end of the last pay period before 19 March 2020 (37.5): 37.5
  2. Divide by the number of calendar days in the repeating working pattern, including non-working days: 7 37.5÷7=5.36
  3. Multiply by the number of days which the employee is eligible to be claimed for under JSS Open: 29 days x 5.36 = 155.44 rounded to 155 usual hours.

The employee did not take any time off in November, so the actual hours worked in November are 67.5 hours. A Ltd calculates that the employee didn’t work for 87.5 hours of their usual hours for November.

To calculate the percentage of hours worked: (67.5÷155) x 100 = 43.55%

A Ltd checks that the employee can be claimed for under Job Support Scheme. In November, the employee worked for 43.55% of their calculated 155 usual hours for November. Because the employee is working at least 20% of their calculated usual hours for November, providing other Job Support Scheme conditions are met, a claim can be made for the employee.

A Ltd calculates the employee’s Reference Salary as £2,250 for the pay period. The maximum Reference Salary that can be covered under the scheme is £3,125 per calendar month. The cap does not affect the calculation here because the Reference Salary is less than £3,125.

To work out the overall amount that A Ltd must pay the employee for their non-working hours in each pay period:

  1. Start with £2,250 (the reference salary for the pay period)
  2. Divide by 30 (the number of calendar days in the pay period)
  3. Multiply by 29 (the number of days subject to a Temporary Working Agreement in the pay period)
  4. Divide by 155 (the number of usual hours for the JSS Open days in the pay period
  5. Multiply by 87.5 (the number of non-working hours for the JSS Open days)
  6. Multiply by 66.67% = £818.59

This is made up of a 5% employer contribution, and a 61.67% government contribution, which A Ltd can reclaim.

To work out the government contribution to the employee’s pay for the non-working hours: 1. Start with £818.59 (the total pay for the non-working hours) 2. Divide by 66.67 3. Multiply by 61.67 = £757.20

The employee’s total gross pay for November will be £1,763.59 (£945 + £818.59).

Please note that HMRC advises that these calculations are indicative and full details of sample calculations will be available in guidance published at the end of October.

Employees who work variable hours:

The variable hours calculation applies if either:

  • The employee is not contracted to a fixed number of hours
  • The employee’s pay depends on the number of hours they work

For employees whose number of hours varies and/or whose pay depends on the number of hours they work, the number of usual hours is calculated based on the higher of:

  • The number of hours worked in the same calendar period in the tax year 2019 to 2020
  • The average number of hours worked in the tax year 2019 to 2020
  • The average number of hours worked from 1 February 2020 (or the employee’s start date if later) until 23 September 2020

This should include hours paid as annual leave and statutory leave.

The calculation of usual hours is not and cannot be altered if the employee is expecting to work more or fewer hours than this in the future.

For employees who are part of a flexible work time arrangement, employers should:

  • Not count as hours worked any hours that the employee worked but was not paid for because they accrued paid time off which they could take later
  • Count as hours worked any hours that the employee took as paid time off (“flexi-leave”), which they had accrued by working additional hours at some other time

For employees who are paid per task or per piece of work done whose hours cannot be calculated in this way, hours can be estimated based on the number of “pieces” produced and the average rate of work per hour, as per National Minimum Wage rules.

Full rules will be covered in guidance at the end of October.

Calculation Example 2: employee with variable hours and variable pay

An employee has worked between 30 and 35 hours for B Ltd since they started their employment in January 2019. They earn £14.60 per hour and are paid every week.

B Ltd is a small employer and meets all the eligibility criteria to qualify for Job Support Scheme.

The employee enters into a JSS Open temporary working agreement on 12 November 2020, which takes effect from 12 November 2020 until 31 December 2020 when the position will be reviewed. B Ltd will continue to pay the employee £14.60 for each hour worked during this time.

The employee must work for at least 20% of their usual hours during the claim period. B Ltd calculates that the employee has worked for 42 hours between 12 November and 30 November and the number of usual hours is 90.

This is 46.7%, which is at least 20%, so (providing the other conditions are met) a claim can be made for this employee.

B Ltd calculates the amount of the JSS Open grant for the pay period 16 November 2020 to 22 November 2020 (7 eligible JSS Open days).

B Ltd calculates the number of usual hours based on the higher of:

  • The number of hours worked in the same calendar period in the tax year 2019 to 2020
  • The average number of hours worked in the tax year 2019 to 2020
  • The average number of hours worked from 1 February 2020 (or the employee’s start date if later) until 23 September 2020

B Ltd calculates the usual hours for this pay period as 33 hours.

The employee did not take any time off in the pay period, and B Ltd identifies the employee’s actual hours worked in the pay period to be 15 hours.

B Ltd calculates that the employee didn’t work for 18 hours of their calculated usual hours for the pay period.

B Ltd finds the higher of:

  • The pay the employee earned in the period 16 November to 22 November 2019
  • The average wages payable in the tax year 2019 to 2020
  • The average wages payable from 1 February 2020 to 23 September 2020

B Ltd calculates the employee’s Reference Salary at £478.50 for the pay period. The cap does not affect the calculation because the Reference Salary is less than the weekly cap of £721.15.

To work out the overall amount that B Ltd must pay the employee for their non-working hours in each pay period:

  1. Start with £478.50 (the reference salary for the pay period)
  2. Divide by 7 (the number of calendar days in the pay period)
  3. Multiply by 7 (the number of days subject to a Temporary Working Agreement in the pay period)
  4. Divide by 33 (the number of usual hours for the JSS Open days in the pay period)
  5. Multiply by 18 (the number of non-working hours for the JSS Open days)
  6. Multiply by 66.67% = £174.01

This is made up of a 5% employer contribution, and a 61.67% government contribution which A Ltd can reclaim.

To work out the government contribution to the employee’s pay for the non-working hours:

  1. Start with £174.01 (the total pay for the non-working hours)
  2. Divide by 66.67
  3. Multiply by 61.67 = £ 160.96

This employee’s total gross pay for this period is £393.01 i.e. £219 + £174.01.

Please note that that HMRC advises these calculations are indicative and that full details of calculations will be available in the guidance published at the end of October.

Job Retention Bonus

  • Employers will receive a one-off payment of £1,000 for every employee who has previously been furloughed under Coronavirus Job Retention Scheme (CJRS) if they remain continuously employed to the end of January 2021
  • To ensure the jobs are meaningful well-paid, employees must earn at least £520 (the National Insurance lower earnings limit) a month on average between the beginning of November and the end of January
  • Those who were furloughed and had a claim submitted for them after 10 June (when the CJRS closed to new entrants) because they were returning from paternal leave or time serving as a military reservist will also be eligible for the bonus as long as they meet the other eligibility criteria
  • Employers claiming the Job Support Scheme may still claim the Job Retention Bonus in respect of the same employee if they are eligible. Grants claimed under the Job Support Scheme can be used by employers to pay an employee’s wages and help meet the Lower Earnings Limit of the Job Retention Bonus.
  • Employers can claim for the Job Retention Bonus in a six-week window between 15 February 2021 and 31 March 2021. No further claims will be accepted after this date.
  • There may be occasions where an employee’s pay period includes both eligible amounts to be claimed under the Coronavirus Job Retention Scheme for a period where they were furloughed until 31 October 2020 and an amount in respect of the Job Support Scheme from 1 November 2020. The amounts to be claimed from each of the schemes should be calculated separately following the guidance for each scheme which will take into account the number of days that fall within each of the scheme’s timelines. No amount of gross pay should be included in more than one scheme.
  • For example, if an employee is paid a weekly salary each Friday covering the previous 7 days, when they are paid on 6 November 2020 this will include their pay for the period Saturday 31 October 2020 through to Friday 6 November 2020. It will be necessary to follow the Coronavirus Job Retention Scheme guidance to calculate the claim for 1 day, being 31 October 2020 and then the remaining 6 days should be calculated following the Job Support Scheme guidance.
  • The calculated amounts should be claimed separately in accordance with the guidance for each scheme.

Holiday entitlement

The current HMRC guidance makes no direct reference to the interplay between holiday and time worked or unworked under the JSS.

However, it is anticipated that subsequent guidance will confirm that employees can take holiday whilst under the JSS scheme and that when an employee is on holiday, they should be paid their normal rate of holiday pay (as required by the Working Time Regulations).

As such, it is likely that employers will still be able to claim the JSS grant whilst the employee is on holiday but they will need to top up as appropriate. It may also be possible to count any hours taken as holiday during the claim period as unworked JSS hours rather than working hours.

It is important to bear in mind that employees have a statutory right to leave, which will accrue even if they are furloughed or not working.

Subject to government guidance, where an employee’s contracted hours are varied, by way of a variation of contract, holiday leave will be proportionate to the hours of work agreed.

Provided that employers apply the correct notice period, employers can:

  • Require workers to take holiday; and/or
  • Cancel a worker’s holiday, if they give enough notice to the worker.

The required notice periods are:

  • Double the length of the holiday if the employer wishes to require a worker to take holiday on particular days
  • The length of the planned holiday if the employer wishes to cancel a worker’s holiday or require the worker not to take holiday on particular dates

Employers can ask workers to take or cancel holiday with less notice but need the workers’ agreement to do so.

These notice periods are in advance of the first day of the holiday, and the notice must be given before the notice period starts. For example, if an employer wanted to prevent a worker taking a week’s holiday, they would have to give notice earlier than 1 week before the first day of the holiday. For the purposes of calculating the notice period, any uninterrupted period of holiday counts as a single period.

These rules on notice periods can be altered by a binding written agreement between the employer and the worker.

Furloughed workers

Workers on furlough can take holiday without disrupting their furlough. The notice requirements for their employer requiring a worker to take leave or to refuse a request for leave continue to apply. Employers should engage with their workforce and explain reasons for wanting them to take leave before requiring them to do so.

Working Tax Credits

Employees whose hours reduce due to the COVID-19 pandemic will continue to have access to Working Tax Credit and its childcare element for the duration of the JSS scheme.

Changes to contracts

This guidance will be updated once information is available from HMRC concerning JSS working agreements.

Coronavirus Job Retention Scheme—Ending on 31 October 2020

The Scheme is now closed to new entrants, meaning that it is no longer available for any employees who were not furloughed for at least three full weeks prior to 10 June.

  • From October, the government will pay 60% of wages up to a cap of £1,875 for the hours the employee is on furlough. Employers will pay ER NICs and pension contributions and top up employees’ wages to ensure they receive 80% of their wages up to a cap of £2,500, for time they are furloughed. Employers will have to pay employees for hours worked.

Employers will continue to able to choose to top up employee wages above the 80% total and £2,500 cap for the hours not worked, at their own expense if they wish. Employers will have to pay their employees in full for the hours worked.

Holiday entitlement will continue to accrue during furlough and accordingly employers may require employees to use some or all of their holiday entitlement during furlough.

Safe re-opening of churches for all visitors, including employees

Guidance on use of church premises in a manner safe for all those accessing them is available on our latest updates page.

The guidance includes a template risk assessment that should be completed to identify any risks posed to employees and should inform steps that can be used to mitigate those risks.

It may be the case that use of church premises will require additional cleaning or other duties. Accordingly, it is important to consider how employed roles will need to be structured in the months ahead.

Congregations have a duty of care to their employees

This means that you must take all reasonable steps to ensure, so far as possible, their health and safety. It should be possible to use the risk assessment included with the use of church buildings guidance, referred to above, to identify potential risks to employees and to take steps to minimise the risks so far as reasonably possible. That does not however mean that employees are prevented from attending work due to the risk that Covid-19 poses to the public at large.

The current guidance is that if an employee can work from home they should do so. However, there are many roles that simply cannot be completed remotely. Unless a person is self-isolating in line with Government guidance they can and should engage in their employment while taking all reasonable precautions for their own health and safety, such as following the Government mandated requirement to wear face coverings on public transport and observing good hand hygiene.

If required, it may be possible to consider more flexible ways of working, for example changing starting and finishing times, allowing people to work from home if practical and arranging for as much as possible to be done using telephone/video conference calling technology.

If an employee refuses to attend work without a valid reason, this could result in disciplinary action.

Pay for employees who are in self-isolation

Government guidance is that if someone is unable to work from home or attend work due to self-isolation (if they have coronavirus, they have coronavirus symptoms, someone in their household has coronavirus symptoms or they have been told to self-isolate by a doctor or NHS 111) then they are entitled to Statutory Sick Pay (SSP) from the first day of non-attendance.

Where employees are entitled to contractual sick pay, that will “top up” SSP. The employee should claim SSP and the congregation should pay a top up so that the employee's income matches their contractual entitlement. You should review contracts to determine what the entitlement of your employees is with regard to contractual sick pay.

In light of the announcement that SSP will be applied to the first 3 days of absence from work, in addition to the usual 28-week SSP period, the full period over which SSP may be paid is 28 weeks and 3 days. The Government has pledged to reimburse small employers with fewer than 250 employees for 14 of those days. If contractual sick pay is applicable, once it runs out, SSP (only) will be payable.

Strictly speaking, evidence of sickness is required after seven days’ absence. However, Government guidance strongly suggests that employers should be lenient about this where a medical professional has instructed an individual to self-quarantine.

SSP should be paid to those who choose to self-isolate, even if they do not have symptoms. This will be relevant for those who cannot work from home during self-quarantine.

In the event that an employee earns less than £120 per week (the minimum earnings threshold for SSP) they may be able to apply for Universal Credit or Employment and Support Allowance. Where an employee does not qualify for SSP they should be sent a SSP 1 form and where SSP is applicable, the employee should be provided with a SSP 1 form on or before the beginning of the 23rd week of absence.

Working from home

Where work can be done at home, you should facilitate this as much as possible. You should pay the employee as usual, and keep in regular contact to check on their health and well-being. If expenses are not being incurred, then any regular payments made towards expenses should be monitored and stopped if appropriate. Otherwise, the usual policies should continue to apply. This includes ensuring good data protection practices and adherence to existing policies in this area.

Employees who cannot work from home

If employees cannot work from home and their employer has had to close their premises (meaning the employee cannot work) due to legally mandated coronavirus restrictions, the employer may be eligible for support in paying their wages under the Job Support Scheme (JSS Closed).

Holidays/Unpaid Leave

Alternatively, and/or if the JSS is ended, employees can be asked to use holiday entitlement to cover any ongoing absence. They should be encouraged to take annual leave in the usual way, and any holidays previously booked should be taken as planned, regardless of whether or not the individual's travel arrangements have fallen through.

In the event that holiday pay is exhausted, employees can be asked to take unpaid leave. However, in the absence of a 'lay-off' clause in their contract (and this is not present in the Church of Scotland template contracts), employees will not have to accept such a proposal. If that is the situation, you will need to establish whether the employee is content to remain in employment and await a return to work and re-commencement of payment of salary, whether they choose to resign or whether it is necessary to make their post redundant.  If an employee is asked to agree to a period of unpaid leave, the Agreement for Unpaid Leave template should be followed.

Childcare or care for other dependent relatives

Many employees with children may find it difficult or impossible to find adequate childcare at this time. In the normal course, employees are entitled to take “reasonable” unpaid time off work to care for a dependant where this is necessary because of an unexpected event. How long is reasonable will depend on the specific circumstances of the employee. ACAS guidance suggests that this may be as short a period as two days, with any further time being taken as holiday, but the current exceptional circumstances may justify a longer period of unpaid absence being classed as time off to care for dependents.

It will often be difficult for an employee to work from home whilst looking after their children. This is particularly the case with younger children. In such circumstances, flexibility will be key. Congregations should establish whether another parent or family member is available or another arrangement can be made to provide childcare or whether the employee might work part-time, or change their working hours.

Whilst there is no obligation on employers to make special allowances for people with caring responsibilities towards vulnerable people such as elderly relatives, you should try to do so wherever possible. This may simply mean allowing them to work from home, take holiday or unpaid leave. Anyone self-isolating due to having coronavirus symptoms or due to someone they live with having coronavirus symptoms is entitled to SSP.

Termination of contracts

Congregations are facing very challenging circumstances. The Job Support Scheme will allow the financial impact on many congregational employees to be greatly reduced. Despite this, it may become necessary to consider the termination of contracts of employment of staff for whom you cannot claim a grant under the Scheme, who are unable to carry out the duties of their post and/or where the congregation can no longer afford to meet their employment costs.

A number of options are available before reaching this point. You could ask employees to take unpaid leave, or agree pay reductions (providing that all employees receive at least the national living wage).

If the impact on your congregation is such that you need to make redundancies, your normal legal obligations will apply and you should take further advice from the Law Department on how this should be done.

Self-employed workers

For the most part, people such as cleaners, church officers, organists, youth workers and secretaries within congregations will be working under contracts of employment, but there will be some instances where this is not the case. If someone such as an organist or a cleaner is in business on their own account, or otherwise is genuinely self-employed, they are entitled to payment for services rendered. If no work is done, there is no entitlement to pay. Those who are self-employed are not entitled to sick pay unless their earnings are liable for class 1 National Insurance Contributions (e.g. where an individual is a director of their own limited company). Accordingly, the general rule is that if self-employed workers are unable to provide services to the congregation then they are not entitled to pay. This means that, for example, organists who are not on contracts of employment but are self employed will not be entitled to payment during any period when they are unable to play at church services or perform the other duties of their role.

If there is any work that a self-employed worker can complete remotely then that would be a matter of arrangement between the worker and the Kirk Session or Congregational Board as the employer. It is unlikely however that such an arrangement would be sustainable in the medium to long term, particularly given the overriding obligation to ensure that congregational funds are applied only and always in the best interests of the congregation.

The Job Retention Scheme does not cover the self-employed and the Government has announced a package of support to people in this category. This support is similar to that made available for employees under the Scheme. You should direct any self-employed workers in your congregation to the Government guidance on this support.

Further guidance

This is a constantly evolving situation, with Government and public bodies regularly changing their advice and implementing new rules. This guidance will be updated in line with developments. The following sources of information, most of which are being updated daily, are also likely to be helpful resources:

If you require tailored advice, please email the Law Department: LawDept@churchofscotland.org.uk and a solicitor will respond within 3 working days.