Latest Government Advice on Corona and Employment Law
National Lockdown v3 – 5th January 2021
As you are no doubt aware, we have again been placed in National lockdown, which is currently stated to be effective until the end of February, and Parliament is to vote on the new regulations for this next period of lockdown on Wednesday 6th January 2021.
As expected, the law is to be updated to reflect the guidance, which is that people should stay at home except for essential reasons – one of which is to go to work if it is absolutely impossible to work from home.
Once again the Government has issued guidance on the matter of which businesses should close and which are allowed to stay open and advice regarding going to work which is set out below:-
- Where people cannot work from home - including, but not limited to, people who work in critical national infrastructure, construction, or manufacturing - they should continue to travel to their workplace. This is essential to keeping the country operating and supporting sectors and employers.
- Public sector employees working in essential services, including childcare or education, should continue to go into work.
- Where it is necessary for you to work in other people’s homes - for example, for nannies, cleaners or tradespeople - you can do so. Otherwise, you should avoid meeting for work in a private home or garden, where COVID-19 Secure measures may not be in place.
- Employers and employees should discuss their working arrangements, and employers should take every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working.
As before, the primary businesses required to close are those concerned with non-essential retail, hospitality, entertainment and leisure and beauty. The bulk of the workforce will be expected to work from home, if it is possible.
Coronavirus Job Retention Scheme
The Coronavirus job retention scheme is still available to businesses until the end of April and therefore employees may be placed on furlough if it impossible for the business to keep them at work. The Scheme provides for the government to subsidise up to 80% of the wages of employees up to a cap of £2500 per month, for hours not worked, but employers must pay Employers’ National Insurance and pension contributions. Full or flexible furlough is still available, so employees may be asked to work part time and be furloughed for some of their hours. A written furlough Agreement should be put in place, if it is not already, containing the details of the arrangement, and this should be kept for 6 years. We recommend where an Agreement is already in place that this be updated.
The government has re-issued its advice that clinically extremely vulnerable people will be required to shield and this means that they must not attend work. Those required to shield should receive a letter from their doctors indicating that they fall into this category. Individuals shielding should be allowed to work from home, or if this is not possible, may claim Statutory Sick pay. Alternatively, employers may choose to furlough such employees but do not have to do so.
Once again, schools, colleges and universities will be closed to students, (with the exception of vulnerable children and children of key workers) although it is expected that online teaching will take place. Nurseries and early years’ settings will remain open.
School closures are likely to make it difficult for some working parents to combine their caring responsibilities with their work duties and employers may decide to furlough some employees with children, although this is by no means obligatory. It may be that agreeing some kind of flexible furlough, or flexible working pattern with parents is the most practical way forward in the short term. Employers subjecting working parents to a detriment due to their childcare responsibilities may find that they fall foul of the law on indirect discrimination, and it is therefore important to work with employees to find a way forward in these difficult times.
Covid safe Work Environment
As ever employers are required to ensure that the workplace is Covid safe. If employees have concerns about being exposed to “serious and imminent danger” to their health and safety either at work or on their journey to work, they may be entitled to refuse to attend work, or leave the workplace, and make a claim against the employer, and therefore employers are advised to consider their health and safety obligations seriously, taking advice from the Health and Safety Executive as necessary.
SSP Update - 6 July 2020
Now that the lockdown rules are easing and people are in contact with members of their family the government have released further details relating to SSP. If you’re an employee and you’re unable to work because you’re sick, or having to self-isolate because you or someone you have contact with in your extended family (your “social bubble”) has symptoms of coronavirus, you are able to claim Statutory Sick Pay.
An employee should be able to self-certify for the first seven days but can obtain a self-isolation” sick note from the NHS website or from their doctor or NHS 111 but should check their employer polices for proof required for absence under these circumstances.
If you have coronavirus symptoms an employee should notify their employer straight away. If you feel well enough to work then ask your employer if you can carry on working from home.
If you can work, you won’t need to claim SSP and can be paid normal pay. You won’t need to provide an isolation note unless your employer asks you for one. However, if you can’t work from home, you may need to get an isolation note to send to your employer.
Furlough Leave Update - 1 July 2020
The updated Coronavirus Job Retention Scheme (CJRS) comes into force and only applies to employees who have previously been furloughed for a minimum of three weeks, by their employers.
If you are already eligible for furlough leave you may be asked to work more flexibly and could include part time working.
The minimum three week rule which has been in place will no longer apply meaning that flexible terms can last for any length of time from the 1st July 2020 until the end of the scheme on 31st October 2020.
However, your employer will need to prepare a new written agreement regarding the flexible furlough arrangements for you. The new guidance also states that your employers will need to pay you in full for the days you work and then CJRS grants will pay you for the remaining contracted hours you haven't worked.
Furlough Leave Update - 10 June 2020
Employees who were not furloughed before the 10th June 2020 are no longer eligible to be part of the furlough scheme, except where they have returned from maternity, paternity, parental leave, adoption or bereavement leave and their employer has taken advantage of the furlough scheme for other employees.
Updates on Sick Pay - 28th May 2020
If you have been told to self-isolate under the new test & trace system then the entitlement to statutory sick pay has been extended, under The Statutory Sick Pay (General) (Coronavirus Amendment) (No. 4) Regulations 2020, Other parts of Great Britain have similar, but not identical, Test and Trace systems but it starts in England today (28th).
So what this means is that you are entitled to statutory sick pay if you have had contact with someone suffering coronavirus and have had to self-isolate accordingly for 14 days.
Employment Law update CJRS - 21st April 2020
With regard to furlough leave employers were initially told to get your agreement in writing. Subsequent guidance has stated that it is not necessary to get written agreement in response (rather than evidence of written notice) so if that has not been done and it is not practical to do so we believe the employer might be able to argue the matter with HMRC in future?
Changes to Furlough Date - 15th April 2020
The qualifying date, when the employee has to have been on the employer's payroll, has today changed from 28 February to 19 March 2020.
An employer may make a claim for a payment under CJRS if the employer has a pay as you earn (“PAYE”) scheme registered on HMRC’s real time information system for PAYE on 19 March 2020 (“a qualifying PAYE scheme”) and has made a submission on or before 19th March including all relevant employees.
So it is our understanding that if you were on the payroll and real time information had been submitted on or before 19th March the employer can claim furlough leave payments for you.
We understand this new date was brought in to catch employees who might have changed jobs after 28th February, but before the details of the Scheme were announced.
Employees must have been instructed to cease all work for the employer, for at least 21 days or more, and because of circumstances arising from coronavirus or a as a result of coronavirus. This does not mean therefore that you as the staff member have been at risk of redundancy but could include circumstances where it is impossible for a business to retain all its employees on a short term basis for example because of operational difficulties or for cash flow reasons.
The employee will not have ceased all work if they are working for an associated employer (including a company with a common director or one whose directors are close relatives of the director(s) of the original employer) or is otherwise indirectly working for the employer.
If you are absent from work because of sickness at the time of being furloughed, you will only be entitled to SSP (i.e. not entitled to furlough pay) until better.
Directors will still be allowed to undertake work such as filing company accounts or work necessary to fulfil his or her statutory duties as a Director, but that is all.
There must be an agreement in writing between employee and employer that the employee will cease all work for the employer – this can be by e-mail – this may mean that employers cannot avail themselves of the CJRS payments for employees who have not agreed in writing or by e-mail to be furloughed. We are advising all employers to therefore obtain their employees’ consent in writing at the time of furloughing, however if such consent was not obtained at the time to obtain this as soon as possible, even if this is retrospectively. We understand that HMRC will reserve the right to audit businesses in the future and recoup payments where express agreement was not obtained but of course like everything the advice from Government is changing all the time
Training activities relevant to an employee’s employment does not count as work e.g. keeping up to date on professional qualifications.
If you are working through intermediary companies for the public sector and members or salaried members of limited liability partnerships you will be treated as employees for the purposes of the CJRS.
The payment is £2500 per month or 80% of wage if the employee earns less than £2500 per month.
Payment is calculated by reference to the [higher of] the average monthly pay for the tax year 2019-20, AND the actual amount paid to the employee in the corresponding calendar period in the previous year (we assume, 1st March to 31st May) , or by any shorter period if the employee has not been employed for a year.
The employee should be paid according to their contractual entitlements including contractual commission and compulsory overtime, but excluding discretionary performance related bonuses or tips for example ,or should be paid their fixed salary or wage, where this does not vary.
Payments that are conditional upon some performance are excluded from the calculation. Some commentators have expressed concern therefore that, as payment to zero hours’s contract workers, is conditional upon them attending work, they would not qualify for the Scheme, which seems antipathetic to the reason for the Scheme and contrary to guidance which has sought to include “atypical or limb b workers”. Further clarification will no doubt be forthcoming in the next few days or weeks on this and other points.
Employers are entitled to reclaim pension contributions which are the lower of the actual amount paid to the pension scheme and 3% of the gross earnings that are paid to an employee in the 12 month reference period, provided the employee meets the lower limit for qualifying earnings in that pay reference period.
It would appear that the Government has got around the problem of the TUPE transfer issue, and the new employer previously not being able to make a claim for transferring employees (because of the employee snot being on the new employer’s PAYE system) and has made allowance for the new employer to claim provided that:
- the employee was employed by their former employer on 19th March 2020; and
- afterwards transferred and continued to be employed by the new employer; and
- there was no cessation of business; and
- the transfer did not break continuity of service for the employee.
The payment of CJRS under the CJRS can only be made for earnings in relation to the period 1st March 2020 to 30th June 2020 plus associated employers’ pension and National Insurance contributions
Apprentices - April 2020
If you are an apprentice and you have been furloughed it is important not to undertake any services or work to gain revenue for your employer,however you can continue training and employers can encourage both training and assessment to take place remotely. Where necessary during the current crisis extensions to the timetable for assessments and breaks in learning will of course take place.
Workers can now carry over annual leave for 2 years - March 2020
If as a result of the Covid-19 outbreak you cannot take your annual leave the Government recently announced that workers can carry over up to four weeks annual leave into the next two years.
This is to make sure staff will not lose their leave entitlement. It is also hoped it will in the long term allow businesses to have the flexibility needed once things get back to normal, as well as currently allowing workers to carry over leave at a time when granting time off could employers short staffed in some key industries such as food and healthcare.
Please note this only relates to the four weeks under European legislation, the balance of the 1.6 weeks statutory leave will remain to be taken in the current year. Although, the 1.6 weeks statutory leave can be carried over for up to a year by agreement between the parties under existing law.