Julian Taylor

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

From 1 August the clinically extremely vulnerable were no longer required to “shield” and could potentially return to work. This is not a green light to require everyone to return to the workplace, and care should be taken to ensure you are following government guidance, as well as acting sensitively towards the needs of this vulnerable group. 

The government’s updated guidance for the clinically extremely vulnerable now states “you can go to work as long as the workplace is Covid-secure, but should carry on working from home wherever possible. You may be able to take up an alternative role or change your working patterns temporarily. If you need support to work at home or in the workplace , you can apply for Access to Work. Access to Work will provide support for the disability-related extra costs of working that are beyond standard reasonable adjustments an employer must provide … As of 1 August you are no longer eligible for Statutory Sick Pay (SSP) on the basis of being advised to shield by the government. Your employer should help you to transition back to work safely and support you to maintain good hand hygiene and distancing practice in your workplace if you are unable to work from home.”  https://www.gov.uk/government/publications/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19

The government’s various sector specific guides on working safely during coronavirus have also been updated. Do note that the amendments are not uniform across the board, so we recommend you look at your sector-specific guidance depending upon the nature of your workplace – some of the guides state that those who are clinically vulnerable should be offered the safest available on-site roles if they are unable to work from home.  https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

Regardless of the government’s advice, employers should take care before requiring a clinically extremely vulnerable employee to come back into the workplace and carry out their own risk assessment. Risk assessments should be undertaken to identify any particular risks taking into account the nature of the workplace, the role, and the nature of their condition. Thought should also be given to whether there are any adjustments or adaptations that would be made to the employee’s role or work area (many former shielders will be disabled within the meaning of the Equality Act 2010). Depending on the circumstances you may need to obtain advice from occupational health or a suitably qualified medical practitioner on whether the individual can return and any adjustments that might facilitate that safely.

Given that many people in this situation may still not feel it is safe to return to work, employers should be prepared to discuss other options such as furlough or unpaid leave. Do contact us if you are concerned about how to handle the potential return to work of any former shielders.

1. Calculating weekly pay

On 31 July 2020, the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 (SI 2020/814) came into force. These provide that if an employer makes a furloughed employee redundant, the employer will need to calculate statutory redundancy pay and statutory notice pay (among other payments listed below) with reference to the employee’s normal pay and not with reference to their reduced furlough pay. Previously, in a limited number of cases for employees whose pay varies with the time of or amount of work, or who have no normal working hours, there was a loophole allowing employers to make statutory payments based on less generous furlough pay (80% of normal pay, capped at £2,500 per month).

The Regulations provide that statutory entitlements based on a week’s pay and connected with termination of employment are not reduced as a result of an employee being furloughed under the Coronavirus Job Retention Scheme (CJRS). The affected entitlements are redundancy pay, statutory notice pay, remuneration for time off to look for employment or arrange training and compensation awards in tribunal including awards for unfair dismissal, failure to provide a written statement of reasons for dismissal, and failure to comply with an order for reinstatement or re-engagement. The Regulations provide a number of special calculations of a week’s pay for those employees who are or have been furloughed, with different calculation options being provided depending upon an employee’s pattern of work. The Regulations also include provisions on how a week’s pay is to be calculated for the purpose of deciding whether an employee is taken to be on short-time for statutory purposes.

The scheme is short term and will cease to apply when the relevant statutory entitlements are no longer affected by an employee having been furloughed.

It is important to note that the new rules apply only to payments from 31 July 2020, so some employees that have already been made redundant will not have been covered. In addition, the normal statutory cap on redundancy payments (on or after 6 April 2020 weekly pay is capped at £538) will still apply, so in many cases the impact of the change will be limited. Similarly if an employee’s notice period is at least one week more than the minimum statutory notice period these calculation provisions do not apply when calculating notice pay, so there is still scope to make lower notice payments in certain cases.

For further general details see

https://www.gov.uk/government/news/new-law-to-ensure-furloughed-employees-receive-full-redundancy-payments

For the calculation details see

https://www.legislation.gov.uk/uksi/2020/814/made

Please do contact us for advice if you need support with your calculations.

2. Further HMRC guidance

Given the evolving nature of the CJRS employers may be concerned about previous claims they have made. On 28 July 2020, HM Revenue & Customs (HMRC) published two new guidance documents for employers on what to do if they have claimed too much or too little under the CJRS (the Errors uide) and the penalties they will face if they fail to report overpayments (the Penalties guide).

The Errors guide

The Errors guide expands upon information that previously appeared in the HMRC Claim guide. In relation to overpayments, it confirms that employers must notify HMRC and make repayments. It sets out the process they should follow to do this and the relevant deadlines (the consequences of failure to comply are provided in the linked Penalties guide). If employers have claimed too little, the Errors guide confirms that they can inform HMRC and amend their claim. Historic claims for the period up to 30 June are now closed. Employers are also reminded that even where they have claimed too little, they must make the correct payments to employees.

The Penalties guide

The Penalties guide confirms that HMRC can recover any overpayment through an income tax charge, with interest and penalties on late repayments. If employers fail to notify HMRC of any overpayment, penalties may be imposed of up to 100% of the overpayment where HMRC believe that the employer’s failure was deliberate and concealed (in accordance with the Finance Act 2020, in force on 22 July 2020).

For further details on the Errors guide see

https://www.gov.uk/guidance/if-youve-claimed-too-much-or-not-enough-from-the-coronavirus-job-retention-scheme

and for the Penalties guide

https://www.gov.uk/government/publications/penalties-for-not-telling-hmrc-about-coronavirus-job-retention-scheme-grant-overpayments-ccfs48

On 31st July 2020 new guidance was released on the Coronavirus Job Retention Bonus scheme. https://www.gov.uk/government/publications/job-retention-bonus/job-retention-bonus

The scheme provides a one-off payment to employers of £1,000 for each employee that was previously furloughed and who remains continuously employed on 31st January 2021. To be able to claim for an employee, they must earn at least £520 a month on average between 1 November 2020 and 31 January 2021. Claims can be made by employers after January’s PAYE has been filed, and payments can be expected from February 2021. Failure to maintain good payroll records and data relating to furlough may jeopardise an employer’s claim, so employers are urged to ensure their records are well maintained. More details about the claims process is expected in September 2020.