Julian Taylor

Just in case you missed the Saturday 31 October 2020 update, the CJRS (furlough scheme), which was due to end on Saturday, is to be extended throughout the new national lockdown beginning on Thursday 5 November. The scheme is therefore still available from 1 November until December.

The support available follows the scheme in August, the Government paying 80% of wages up to a cap of £2,500 but not contributing NICs and pension contributions. Flexible furloughing is allowed as well as full-time furloughing. The Job Support Scheme, which we previously updated you on, will be postponed until the CJRS ends.

The HM Treasury press release (link below) sets out the amended rules. 

• The scheme is available to employers and employees who have not used furlough in the previous scheme.
• The employee must have been on the employer’s PAYE payroll by 23:59 on 30 October 2020.
• Employers can claim the grant for the hours that their employees are not working, calculated by reference to their usual hours worked in a claim period.
• The claim is for minimum period of seven consecutive calendar days.
• The claim is payable at 80% of wages up to a cap of £2,500 for hours not worked and the amount claimed must be paid to the employee in full.
• Employers will pay employer NICs and pension contributions.
• The employer must continue to pay the employee for any hours worked in the normal way.
• Employers can choose to top up employee wages above the scheme grant at their own expense.

The Government have as yet not confirmed when claims can be made but have said that there will be no gap between the previous end-date of CJRS and this extension. We are awaiting  more detailed guidance.

Further details can be found at

https://www.gov.uk/government/news/furlough-scheme-extended-and-further-economic-support-announced

A further (fourth) Treasury direction and HMRC guidance have been published, providing further details on the Job Retention Bonus (JRB). Employers will be able to apply for the £1,000 bonus in respect of eligible employees between 15 February and 31 March 2021 which the Employer can retain.

Employees will be eligible if they

• had previously been furloughed under the CJRS

•  are continually employed between the date of the last CJRS claim made in respect of them until 31 January 2021

• earn a minimum of £1,560 in total during the three months between 6 November 2020 to 5 February 2021

The employees cannot be on statutory or contractual notice, on 31 January 2021 (including notice of retirement), or have been TUPE transferred to the Employer after 31 October 2020.

Employers will not be eligible to make a claim if they have repaid the full CJRS grant to HMRC, regardless of the reason, or if they have made an incorrect CJRS claim because they were not eligible to claim for the employee under that scheme. In addition no payment will be made if the JRB claim is abusive or contrary to the exceptional purpose of the scheme.

Further details of the scheme can be found at:

https://www.gov.uk/government/news/new-guidance-on-9-billion-job-retention-bonus-set-to-benefit-millions-of-businesses

https://www.gov.uk/government/publications/find-an-example-of-employees-and-the-minimum-income-threshold-for-the-job-retention-bonus

The treasury direction can be found at:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/923783/SIGNED_CJRS_DIRECTION_No_4__Coronavirus_Job_Retention_Scheme_Bonus__Final.pdf

The Treasury direction also includes a reminder – all claims under the CJRS must be made no later than 30 November 2020.

Please contact us if you need any further advice on how these schemes affect your business.

We previously updated clients on the JSS (announced on 24 September 2020). The original proposal requires employees to work for one third of their normal hours to enable a claim to be made and therefore did not provide support to businesses that are legally required to close their premises due to local or national COVID-19 restrictions, resulting in employees being unable to work at all.

The Chancellor has announced an extension to the JSS from 1 November 2020 to help businesses that are required to close their premises as a direct result of local or national COVID-19 restrictions. The extension does not apply to businesses required by local public health authorities to close following a specific workplace outbreak. It appears, at present, that large employers can claim under the scheme. No mention of a financial assessment test has been proposed although it has been indicated that there is an expectation that larger employers will not claim if they are still making capital distributions.

The extension to the JSS appears to be more akin to a new version of the CJRS “furlough scheme”. The further information section of HM Treasury’s announcement of the extension refers to employees being “furloughed” for a minimum period of seven consecutive days to be eligible under the new scheme.

Under the new extended JSS:

• To be eligible, an employee must be off work for a minimum of seven consecutive days following an instruction from their employer to cease work as a result of a closure of the employer’s premises.
• It applies to employees for whom a RTI submission has been made on or before 23 September 2020.
• The government will pay two thirds of eligible employees’ normal pay (to £2,100 per month) to employers in arrears and subject to tax.
• The payments will only be made in respect of periods that an employee has ceased work altogether.
• Employers will not be required to contribute, but they will be required to cover employer NICs and auto enrolment pension contributions.
• Employers can choose to “top up” the payments.
• An employer does not need to have made claims under the Coronavirus Job Retention Scheme (CJRS) to make a claim under the extended JSS.
• When its premises re-open, an employer can claim under the “standard” JSS if it meets the criteria applicable to that part of the scheme.
• An employee cannot be made redundant or put on notice of redundancy during the period in respect of which their employer is making a claim.
• HMRC will publish the names of employers that have used the JSS, so that employees can see if their employer has claimed for them. This was not done in relation to the earlier CJRS scheme.

The extension will sit alongside the original JSS and the Job Retention Bonus (JRB) scheme. The online claims service is expected to be available from early December 2020.  We are informed that further guidance from HMRC is awaited “in the coming weeks”. The new schemes are due to launch on 1 November 2020.

Further detail is provided at: https://www.gov.uk/government/news/job-support-scheme-expanded-to-firms-required-to-close-due-to-covid-restrictions

New regulations come into force today (28 September 2020). They set out mandatory periods for self-isolation, and create various offences. The important one for employers to note is that under Regulation 7 it is now an offence to knowingly permit a worker (including an agency worker) to attend any place other than where they are self-isolating. 

This includes individuals who are self-isolating because they have tested positive themselves, or those who are self-isolating because they live with someone who has tested positive. If an employer knows someone has tested positive, or lives with someone who has tested positive, the employer will now have an obligation to stop the employee from working (unless they can work from home). An employer who fails to comply can face a fine, starting at £1,000 (with further increased fines for repeat offences).

For details of The Health Protection (Coronavirus, Restrictions) (Self Isolation) (England) Regulations 2020 see here:

https://www.legislation.gov.uk/uksi/2020/1045/made

The finer details are not known yet, and further guidance is expected shortly, but the headlines are as follows.

• It is open to larger employers whose turnover has fallen as a consequence of COVID-19 and all SMEs (provided they have a UK bank account and UK PAYE scheme).
• It is open to employers whether or not their employees were furloughed previously.
• It is effective from 1 November, after the end of the current flexible furlough scheme on 31 October. The scheme will run for six months until the end of April 2021.
• The employee must have been on the payroll as of 23 September 2020 and work at least 33% of contracted hours of employment for which the employer pays at  the normal rate. This threshold in hours may be reviewed and increased by the government after three months.
• The scheme provides help with pay for the period the employee does not carry out work for the employer – so currently a maximum of 67%.
• Of that time, the employer and the government will pay 33% of the pay that would have been available – so on the example of 67% the employer will contribute an additional 22% and the government will contribute 22%.
• The employee will receive 77% of pay in this example paid 55% by the employer and 22% by the government.
• The maximum contribution the government will make is £697.92 per month per employee and so the full benefit of the scheme is available for annual salaries up to around £38,000.
• 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.
• Grant payments will be paid to employers monthly in arrears, with the expectation that employers can make the first claims online in December.
• HMRC will check claims and government grant payments may be withheld or need to be paid back if they are fraudulent or based on incorrect information.
• Employees cannot be made redundant or put on notice of redundancy during the period within which the employer is claiming the grant. However, it does not appear to be a ban on redundancies – the current information suggests employers can just stop claiming the grant and move to redundancy if they assess that is right for their business.
• Large businesses will be expected not to make capital distributions (such as dividend payments) while accessing the grant.
• The jobs retention bonus is also available to employers claiming under the job support scheme.
• Employers must agree the new short-time working arrangements with their staff, make any changes to the employment contract by agreement, and notify the employee in writing. This agreement will need to be made available to HMRC on request so good documentation and record keeping will be essential.

See the government’s fact sheet for more information. There is a useful table at paragraph 7 showing the employer contribution and the government grant in different part-time working scenarios.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/921389/Job_Support_Scheme_Factsheet.pdf

Please let us know if we can be of any help in understanding the rules, and in agreeing and implementing contractual changes with staff to take advantage of the scheme.

On 30^th March 2020 a number of temporary changes were made to UK right to work checks.  Checks are still necessary, and it is still an offence to knowingly employ anyone who does not have the right to work in the UK.  However, the idea was to come up with some practical ways of simplifying this process while people cannot meet face to face.  These temporary rules remain in place for the time being. As more people return to work employers should be alert to the fact that these temporary rules will end at some point. The Home office has said they will give advance notification of when these measures will end, so for the time being we are watching this space.   In this article we remind you of the temporary Covid-19 measures, and set out the steps you must take when those measures come to an end.

A reminder of the current rules – how to conduct a right to work check during the temporary Covid-19 measures

• Ask the worker to submit a scanned copy or a photo of their original documents via email or using a mobile app.
• Arrange a video call with the worker. Ask them to hold up the original documents to the camera and check them against the digital copy of the documents.
• Record the date you made the check, and mark it as “adjusted check undertaken on [insert date] due to COVID-19”.
• If the worker has a current Biometric Residence Permit or Biometric Residence card or status under the EU Settlement Scheme you can use the online right to work checking service (https://www.gov.uk/view-right-to-work) while doing a video call – the applicant must give you permission to view their details (https://www.gov.uk/prove-right-to-work).

Where a job applicant or existing worker cannot show you their documents you must contact the Home Office Employer Checking Service (https://www.gov.uk/employee-immigration-employment-status).  If the person has the right to work the Employer Checking Service will send you a “Positive verification Notice”. This provides a statutory excuse (which serves as a defence) for 6 months from the date in the notice. 

What will happen when these temporary measures come to an end?

We don’t yet know when these measures will end.  When they do, employers should revert to following the checking process set out in the employer’s guide (https://www.gov.uk/government/publications/right-to-work-checks-employers-guide ).

It is a requirement that within eight weeks of these measures ending, employers should carry out retrospective full checks on:

• existing employees who started working during the period for which the temporary Covid-19 measures were in place (i.e. 30^th March 2020 onwards); and
• existing employees who required a follow-up right to work check during this period. 

These checks should be labelled “The individual’s contract commenced on [insert date].  The prescribed right to work check was undertaken on [insert date] due to Covid-19.”  Both checks must be retained for your records.  If, at the time of the retrospective check the individual does not have permission to be in the UK, then you must end their employment.

No enforcement action will be taken if an employer carries out an adjusted check, followed up with a full retrospective check. Note if you were able to carry out a full check during the pandemic it will not be necessary to carry out a retrospective check.  

What should employers be doing now?

If you are already starting to get people back to work, consider whether you can start undertaking any retrospective checks now, and do so where you can. 

Employers should also be mindful of significant forthcoming immigration changes in the UK.  Employers who wish to engage  workers from outside of the UK after 1 January 2021 will need to apply to the Home Office to become an approved sponsor under the modified points-based system. In preparation for that process employers should start to familiarise themselves with the eligibility requirements, the applications process and the applicable fees.  It would also be wise to consider which personnel will take on responsibility for the sponsorship process and sponsor management system.  Applications take time to process so  employers should prepare and consider making their applications sooner rather than later.

Note that EEA citizens and their families that are already living in the UK will be exempt from the points-based system if they have made the required free application under the EU Settlement Scheme (deadline 30 June 2021).  Employers should offer information and support to these workers to ensure any applications for settled status have been made in good time before that deadline. 

For more information about any of the issues in this article please contact us on 01869 351833.    

Pre-pandemic, the Tribunal system was already creaking under the weight of claims, with some Tribunals not listing final hearings for over a year after initiation of a claim.   The pandemic has increased the backlog, as well as provided a context for an increased number of potential claims on matters like furlough, unfair redundancies, and disputes over health and safety concerns as people return to work.  

The system is adjusting to this new normal, with increased emphasis on technology and remote hearings.  However, we can certainly expect increasing delays to be an ongoing feature of proceedings, and the parties need to be realistic that final hearings will be a long way off, and that their day in court may well be conducted remotely. 

Court Arrangements for Employment Tribunals

On 1^st June 2020 the Presidents of the Employment Tribunals in Scotland and England & Wales published their latest FAQ document.  This is designed to provide Tribunal users with answers to frequently asked questions (such as “My hearing has been cancelled due to the pandemic.  When will it be rearranged?  Will my case just go to the back of the queue?,  “Are there any types of work that the Employment Tribunal is prioritising?”, and “Given the problems caused by the pandemic, will the Employment Tribunal extend the 28-day deadline by which a response should be provided?”).  It is a useful read for anyone currently bringing or defending proceedings.  It also provides an aspirational “road map” for how it is envisaged that the number and type of hearings being heard can gradually ramp up in the coming months, with much emphasis on the use of Cloud Video Platform (CVP), the Ministry of Justice’s preferred video platform.  See here for the full FAQs document:

https://www.judiciary.uk/wp-content/uploads/2020/08/FAQ-edition-date-1-June-2020.pdf

Nearly all cases listed for April, May and June 2020 were postponed and re-listed.  This has increased the already significant backlog and in some areas (with London and the South East being worst affected) individuals are seeing their cases re-listed for late 2021 or even 2022.

Since the start of July some hearings have been progressing, mainly via CVP, but some are taking place in person with adjustments to the norm to allow for social distancing.

Final Thoughts

With a challenging labour market where finding new ways of replacing earnings are more limited, it seems likely that an increasing number of disgruntled employees will feel that there is no option but to pursue their complaints.  However, the long route to resolution may be off putting for some individuals, and many employers will bank on the fact that Claimants will run out of steam long before they get to a final hearing.

Employers in receipt of claims ought to consider collecting documents and witness statements relatively early on in proceedings – it would be all to easy to delay preparations if a hearing isn’t going to be for many months or even years, but memories fade, documents can get misplaced or deleted, and staff witnesses can move on, making it more difficult to put together a coherent defence.

Ultimately prevention is better than cure, and for employers, handling employee relations with care in the first place is of course the best way to reduce your exposure to claims.  It is also prudent in many cases for the parties to consider whether it would be best to try to resolve issues through internal grievance procedures, ACAS conciliation, or settlement discussions. 

At Julian Taylor Solicitors we are experienced in bringing and defending employment claims.  If you need assistance please do contact us on 01869 351833.    

From 1 September 2020 employers have to contribute at least 10% of salary for those benefitting from the furlough scheme (adding to the payments of employer’s National Insurance and minimum statutory pension payments which employers had to contribute last month). The cost of retaining employees on the furlough scheme is therefore rising for employers, and we expect to start to see use of the scheme tailing off.

Given the potential for HMRC audits of furlough claims, it remains imperative that employers keep a copy of all records relating to furlough. There is a requirement to retain a written record of all communications with an employee regarding the furlough arrangements, including the furlough agreement, for five years, and an obligation to retain further details (including the amount claimed, the claim period for each employee, the claim reference number, the calculations used in case HMRC need more information about the claim, details of any overclaim and associated notification to HMRC, and records of any agreed training undertaken by furloughed employees) for six years. Given the discrepancy in the retention periods we recommend everything is retained for six years. It would also be prudent to keep a written record of reasons why the pandemic necessitated putting employees on furlough such as details of any downturn in work, or the closure of the business. While audits might not take place for some time, we recommend that employers use this time to collate their records to get these into good shape now so that they are audit ready.   

In August the government published new guidance for workers and employees on employment rights associated with self-isolating after returning to the UK from countries where there are now quarantine rules in place. The guidance can be found here: https://www.gov.uk/guidance/self-isolating-after-returning-to-the-uk-your-employment-rights

The brief guidance explains that, where possible, people should work from home during their self-isolation period. Where that is not possible, they should take extra annual leave to cover the quarantine if there is enough leave remaining. It also confirms that an employer can require an employee to take leave to cover a period of post-travel self-isolation (provided the notice periods prescribed by law are observed). The guidance doesn’t address the questions of what to do where there is no annual leave left and the role is not one that can be done from home, and whether SSP might be payable. Depending on the circumstances it may be that a period of unpaid leave could be utilised. We can advise on specific cases so do contact us if you need guidance in this situation.

The government has opened its new Kickstart Scheme. The scheme is designed to create new 6-month job placements for young people currently on Universal Credit and at risk of long-term unemployment. The job placements, which must be new placements, should support individuals to develop the skills they need to find work after completing the scheme. Funding is available to employers following a successful applications process. Funding will cover 100% of the relevant National Minimum Wage costs for 25 hours per week, plus associated employer NICs and minimum employer pensions contributions under the auto-enrolment rules. There is also £1,500 per job placement available for set-up costs, support and training.

Applications must be for a minimum of 30 placements. However if you are an SME, and would like to participate in the scheme but cannot offer that sort of number, you can partner with other organisations to reach that threshold.

For more information go to the government’s employer information found here:

https://www.gov.uk/guidance/check-if-you-can-apply-for-a-grant-through-the-kickstart-scheme