Guidance for congregations with employees

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Updated 24 June 2020

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 employers.

The Scottish Government has produced a route map for easing of restrictions put in place to respond to the threat posed by Covid-19, and has recently confirmed that Scotland is entering Phase 2 of that route map. The Scottish Government has also advised that the current status of the epidemic in Scotland means that the changes in Phase 2 will be introduced in stages, rather than all at once. On that basis, it will be important to review the most up to date guidance available prior to making decisions about opening places of worship and work and decisions concerning employees.

Current Government guidance is that if employees are able to work from home then they should continue to do so: they should only travel to work if necessary. However, churches are now permitted to open for the purposes of private prayer and contemplation, marriages may now be conducted outside, with minimal numbers and subject to physical distancing, funerals may be conducted under the same conditions and it is anticipated that there will be an easing in other restrictions from July.

This leaves congregations as employers with a number of questions concerning their present circumstances and the potential for safe re-opening of church buildings. Every situation will be different, but the following is intended to serve as broad guidelines in the present extraordinary circumstances.

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

Guidance on re-opening 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 re-opening will require additional cleaning or other duties. Accordingly, it may be appropriate to vary existing contracts or to consider how employed roles will need to be structed in the months ahead. Further information about the use of church buildings at this time is available from Brian Auld, Assistant Secretary (Safe Buildings), General Trustees' Department. He can be reached at bauld@churchofscotland.org.uk

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 Re-Opening 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 or is shielding on the basis of having received a letter from the NHS identifying them as being 'clinically extremely vulnerable' 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 corona virus 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 selfquarantine. 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 selfquarantine.

In the event that an employee earns less than £118 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

Prior to the announcement of the Coronavirus Job Retention Scheme on 20 March, ACAS guidance suggested that if employees are not able to work from home, this should be treated in the same way as sick leave, and that they should receive any sick pay which is due under the terms of their contract, or SSP if they qualify under the normal rules. Once contractual sick pay has been exhausted, the employment of such individuals may have to be ended or, alternatively, they may be retained in employment on an unpaid basis. What is appropriate will depend on the circumstances in each case.

For employers who qualify for the Coronavirus Job Retention Scheme, this guidance is now superseded and congregations in that situation should see below for more information on the Scheme and its applicability. To be eligible for claiming under the Scheme an employer must have started a PAYE payroll scheme on or before 19 March 2020. Unfortunately this means that some congregations will not qualify, because of the rules on PAYE. Employers do not need to register for PAYE under certain circumstances, particularly if no employees are paid less than £118 a week. If you require further guidance on PAYE please contact the Stewardship and Finance Department.

Holidays/Unpaid Leave

Once SSP has run out, 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. Annual leave should not be stored up during the period when an employee is unable to work.

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 you are able to offer them a period of furlough under the Job Retention Scheme (see below). A style Agreement for Unpaid Leave.

Child care or care for other dependent relatives

As schools have now closed, many employees with children may find it difficult or impossible to find adequate childcare. 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. It is anticipated that SSP entitlement will be extended to cover those caring for someone within their household who has coronavirus symptoms and has been advised to self-isolate.

Termination of contracts

Congregations are facing very challenging circumstances. The Corona virus Job Retention 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. Staff who receive 80% of their normal pay under the Job Retention Scheme could be asked to waive their entitlement to the remaining 20% if the congregation cannot afford to pay this.

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.

Government Coronavirus Job Retention Scheme

On 20 March the UK Government announced the creation of a Coronavirus Job Retention Scheme (' CJRS ') to allow employers to access support to continue paying at least part of the salaries of those employees who would otherwise be laid off during the coronavirus crisis. Detailed guidance on how this Scheme will operate can be accessed at https://www.gov.uk/guidance/claim-for-wages-through-the-coronavirus-job-retentionscheme

Any employer in the UK, regardless of size or sector, will be able to access the Scheme for workers paid through PAYE and employed prior to 19 March 2020. As noted above, the Scheme will not cover congregations who do not have an existing PAYE payroll scheme.

An employer, after negotiation with its employees, can designate affected employees as 'furloughed workers' and provide information about these workers to HMRC through a new online portal. Until the end of July, HMRC will then reimburse 80% of these workers' wage costs up to a cap of £2,500 per calendar month for each employee, together with NI costs and employer's pension contributions. Employers can choose to fund the difference between this payment and normal salary but don't have to do so.

Grants under the Scheme will cover the cost of wages, plus National Insurance (NI) and employer's minimum pension contributions, backdated to 1 March 2020. The Scheme will run until the end of 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.

CJRS from 1 July

The Government has confirmed that the Scheme is scheduled to end on 31 October and that new rules will apply from 1 July, with a greater cost implication for employers from August.

From 1 July employers will have the option to keep employees fully furloughed or to bring employees back to work on a flexible basis.

Keeping employees on furlough

In the event that your congregation wishes to keep employees on furlough without bringing them back to work on a flexible basis, you should confirm that with them, now, using the template letter. Please note that from 1 August the CJRS grant will be tapered downwards and employers will be required to contribute to employee pay. See below for further details.

Flexible furloughing

On 29 May, the Chancellor announced further changes to the CJRS . The effect of these changes is that:

  • From 1 July, employers can bring back to work employees, that have previously been furloughed, for any amount of time and any shift pattern, while still being able to claim a CJRS grant for their hours not worked, subject to the changes referred to in the following section.
  • From 1 July, employers will be able to agree any working arrangements with previously furloughed employees. For example, an employee can be asked to work half days, rather than full days. The employer will be responsible for paying the employee their normal salary for the half days worked and will be able claim a CJRS grant for the half days the employee will be furloughed.
  • When claiming the CJRS grant for furloughed hours, employers will need to report and claim for a minimum period of a week. This is a minimum reporting period and those making claims for longer periods such as those on monthly or two weekly cycles will be able to do so.
  • To be eligible for the grant, employers must agree with their employee any new flexible furloughing arrangement and confirm that agreement in writing.
  • Employers can claim the grant for the hours their employees are not working calculated by reference to their usual hours worked in a claim period.
  • Employers will need to report hours worked and the usual hours an employee would be expected to work in a claim period.
  • For worked hours, employees will be paid by their employer subject to their employment contract and employers will be responsible for paying the tax and NICs due on those amounts.
  • Claim periods will no longer be able to overlap months, employers who previously submitted claims with periods that overlapped calendar months will no longer be able to do this going forward.
  • The number of employees an employer can claim for in any claim period cannot exceed the maximum number they have claimed for under any previous claim under the current CJRS .
  • Employers will be able to make their first claim under the new scheme from 1 July.

If you wish to bring an employee back to work on a flexible basis under the terms of the CJRS please use the template letter.

Further guidance on the flexible furlough scheme, reporting and calculating salaries is available from HMRC.

Changes to employer costs under CJRS

To be eligible for the grant employers must continue to pay furloughed employees 80% of their wages, up to a cap of £2,500 per month, for the time they are being furloughed. What employers can claim back from HMRC under the CJRS will be reduced each month from 1 August 2020.

The timetable for changes to the scheme is set out below.

Wage caps are proportional to the hours an employee is furloughed. For example, an employee is entitled to 60% of the £2,500 cap if they are placed on furlough for 60% of their usual hours:

  • There are no changes to grant levels in June
  • For June and July, the government will pay 80% of wages up to a cap of £2,500 for the hours the employee is on furlough, as well as employer National Insurance Contributions (ER NICs) and pension contributions for the hours the employee is on furlough. Employers will have to pay employees in full for the hours they work.
  • From August, the government will pay 80% of wages up to a cap of £2,500 for the hours an employee is on furlough and employers will pay ER NICs and pension contributions for the hours the employee is on furlough. Employers will have to pay employees for hours worked.
  • From September, the government will pay 70% of wages up to a cap of £2,187.50 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.
  • 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.

Should an employee not agree to their furlough being extended or being put on flexible furlough then the alternative is reaching a different agreement with the employee, such as unpaid leave, or redundancy.

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.

Emergency volunteering leave

The Government has also introduced a right for employees to take 'emergency volunteering leave'. This right doesn't apply to organisations with less than 10 staff but it may be relevant for a small number of congregations.

The employer does not have to pay for this: it is unpaid leave. The Government will compensate emergency volunteers for any loss of earnings, travel and subsistence costs incurred as a result.

A worker is entitled to take emergency volunteering leave if, no later than 3 working days before the date on which the leave starts, they give an emergency volunteering certificate to their employer. This is a certificate issued by either the Scottish Ministers or a Local Authority certifying that the worker has been approved as an emergency volunteer 'in health or social care' and will be acting in that capacity for the period specified. Leave must be taken in blocks of two, three or four weeks and only one 'block' can be taken in any 16- week period.

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 selfemployed 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 dstihler@churchofscotland.org.uk or mmacleod@churchofscotland.org.uk and a solicitor from the Church of Scotland Law Department will respond within 3 working days.