UK Covid-19: critical work self-isolation exemption; new guidance on hybrid working and Covid-19 status checks

Self-isolation exemption

In light of the so-called ‘pingdemic’, the Government has recently introduced a limited exemption from self-isolation rules for critical services staff identified as close contacts of someone who has tested positive. The exemption is limited to specific types of employers, only permits named fully-vaccinated workers to undertake critical work and subject to testing, and is only intended to apply until 16 August (when all fully-vaccinated close contacts will be exempt from self-isolation, but will be advised to take a PCR test and only isolate if positive – see here).  Employers wishing to make use of the exemption need to contact the relevant government department for their sector with specified information and exemptions will be agreed on a case-by-case basis daily by the relevant government department, the Cabinet Office and the DHSC. Eligible exempt workers will be confirmed in a letter to the employer together with measures that the employer and those workers must follow.

Hybrid working

Now that Step 4 of the Roadmap in England has passed, many employers are considering the phased return of employees to the office, bearing in mind their health and safety obligations and the Working Safely guidance.  Employers are increasingly likely to face formal or informal requests to work more flexibly, and in any event should now be seeking to formalise their arrangements going forward (potentially as a trial period, given that home-working which was effective when everyone was at home may not be equally so when some/most are in the office).  Acas has published new guidance on hybrid working, covering the need to consult staff, potential contractual and discrimination issues, and creating a hybrid work policy.

Covid-19 status

Another key issue for employers will be determining their approach to vaccination status for those returning to the workplace.  So far the Government has made vaccination mandatory only for certain health and social care workers, from November 2021.  Employers in other sectors considering making vaccination mandatory need to give careful consideration to the risks of discrimination claims, the contractual position, the fact that some individuals are medically unable to be vaccinated, and data protection issues, in addition to their health and safety obligations to all staff.

Requiring vaccination could potentially amount to indirect discrimination, for example against certain disabled employees who cannot be vaccinated for medical reasons, or where employees are in a protected minority group less likely to be vaccinated;  employers would therefore need to be able to justify taking this step.  Allowing proof of negative lateral flow test results or previous infection as an alternative to vaccination will go some way to reduce the potential discriminatory impact, although claims might still be possible based on the disadvantage of having to submit to regular testing, so employers will still need to show workplace safety reasons for the requirement.

The NHS Covid Pass app can be used to check this broader status;  an official NHS COVID Pass Verifier app has also been created to provide a secure way to verify an individual’s NHS COVID Pass (created for businesses checking status for entry to large events or venues,  but available to all).  The Information Commissioner’s Office has published helpful new guidance on checking Covid status, which states that simply visually checking an individual’s Pass, without recording the status shown, would not be covered by data processing requirements, whereas making a note of a visual check or digital checks (such as using the Verifier app, even though data is not retained) would amount to processing special category personal data (and therefore the usual requirements as to impact assessments, security, accuracy, proportionality and retention of data etc. will apply).  The ICO guidance makes clear that employers would need a clear and necessary reason for recording employees’ Covid status which cannot be achieved without collecting the data;  the sector, type of work and health and safety risks will be key.  These factors will also be relevant in determining whether the employer can justify any indirect discrimination in requiring status checks.

Employers will need to give careful thought as to whether alternative safety measures in the workplace could adequately protect staff in the particular working conditions.  Encouraging vaccination and/or voluntary disclosure of Covid-status will be a safer route; the Government has published new guidance for use by employers to run an internal awareness campaign to help ensure their employees get access to reliable and accurate information about the Covid-19 vaccine.  However, going further and offering incentives to encourage vaccination will still risk indirect discrimination claims in the same way as mandatory vaccination/status checks and would therefore need to be capable of justification (although the lesser discriminatory impact would be relevant); there might also be a (perhaps remote) risk of personal injury claims against an employer should an employee have a serious adverse reaction, so this step should only be taken after careful consideration of the risks.

Please do get in touch with your usual HSF contact if you would like to discuss any of these issues further.

Tim Leaver
Tim Leaver
Partner, Employment, London
+44 20 7466 2305
Jenny Andrews
Jenny Andrews
Of Counsel, Employment, London
+44 20 7466 6430
Sian Greenley
Sian Greenley
Associate, Employment, London
+44 20 7466 2683
Anna Henderson
Anna Henderson
Professional Support Consultant, Employment, London
+44 20 7466 2819

UK Covid-19: new “Working Safely” guidance published, stressing the importance of ventilation, face coverings in enclosed crowded areas, and a phased return to the office

The new “Working Safely” guidance to apply from Step 4 of the Government”s Roadmap on Monday 19 July has been published here.  There is a general overview plus six sector-specific guides.

The overview highlights the key point that businesses still have a legal duty to manage risks, in particular to carry out a health and safety risk assessment covering Covid-19 (in consultation with unions or workers) and to take reasonable steps to mitigate the risks.  The six sector-specific guides are intended to help an employer assess its individual risk and decide appropriate mitigations.  The guidance is to be kept under review and advice will be removed “once it’s safe to do so”.

The main changes for Step 4 are that social distancing no longer needs to be implemented, and the instruction to “work from home if possible” has been removed, although “during this period of high prevalence” the government expects and recommends a gradual return over the summer, in a phased way that should be discussed with workers. It is left to employers to determine what a “gradual return” will look like – no further specifics are given in the guidance. However, Dr Susan Hopkins at Public Health England has advised that, given the rise in cases, over the next four to six weeks those who are able to work effectively from home should do so, with a cautious return to the office when the number of cases starts to decline.

For office workers, the new guidance is available here. The priority actions have been updated as follows:

  • references to required social distancing measures have been removed (although note that later on in the guidance, some of these measures, including the use of screens and face-coverings, are still listed as measures for employers to consider);
  • the need to keep risk assessments up to date is emphasised;
  • greater priority is given to ensuring adequate ventilation, in particular to identifying any poorly ventilated spaces (for example, by using CO2 monitors – see the HSE guidance here) and taking steps to improve fresh air flow in these areas.

More frequent cleaning, compliance with self-isolation rules, and communication and training, all remain key steps.  Supporting contact-tracing through use of a QR Code and keeping records is now encouraged rather than a requirement.  The same priority actions apply across all six sector specific guidance notes, with minor differences of detail.

The more detailed guidance that follows the priority actions includes new text on how Covid-19 is transmitted and the safety measures appropriate to the different types of transmission (section 1.2) and on ventilation (section 3).  The previous version’s detailed recommendations around how to maintain social distancing (staggering times for arrival/departure and use of break rooms, one-way flow systems and floor signage, and minimising indoor meetings, movement, travel, sharing of equipment, use of lifts and canteens etc) have been removed, and the new section on reducing worker contact now only references the use of fixed teams, reviewing layouts, use of screens/barriers, and limiting sharing or increasing cleaning of workstations.

The guidance now emphasises that a suitable and sufficient risk assessment should involve a consideration of the different ways the virus can spread and the risk of each within a particular business, and should then determine appropriate measures to reduce the risk of each type.  The guidance divides the measures to consider by type (aerosol or droplet):

  • to reduce aerosol risk: adequate ventilation, identifying and minimising the use of poorly ventilated space, using outside space, and considering reasonable steps to avoid congestion;  the much more detailed guidance on ventilation in section 3 stresses the need for mechanical systems to maximise fresh air and flags identification and improvement of poorly ventilated areas as a key priority for risk assessments;
  • to reduce droplet risk: measures to reduce contact where practical, such as ‘fixed teams’, screens/barriers, back-to-back/side-to-side working, and the use of face-coverings in enclosed crowded areas;
  • to reduce risk from contaminated surfaces: advice to clean hands and cleaning of surfaces;
  • ensuring anyone who feels unwell does not attend the workplace.

These measures are similar to those recommended in earlier guidance as steps to take where it was not possible to socially distance, the key difference being that under the previous versions such non-socially distanced activities were only permitted (with these measures in place) if they were essential to the business.  The previous recommendation to avoid playing music or broadcasts at a level that makes it hard to have normal conversations has also been dropped, although the new guidance does suggest that employers could encourage the use of outside space for higher risk activity such as exercise or when people are singing or raising their voices. It also points out that employers might identify other measures not included in the guidance.

The recommendation for larger employers to publish their risk assessment results on their website remains, as does the requirement to show workers and visitors that risk assessment and mitigation has been carried out, although the formal Staying Covid-secure notice is no longer mentioned.

In relation to the phased return, the guidance highlights that employers should “remain responsive to workers’ needs, particularly during this period when not every adult will have been offered 2 vaccine doses”, and should adopt practices that help to reduce the risks to individuals in the workplace.  The “timing and, where applicable, phasing” of the return should be discussed with workers, and they should be consulted on the health and safety measures put in place to reduce the risk of virus transmission.  Employers should give extra consideration to people who are at higher risk (who are no longer advised to shield), discussing their individual needs and supporting them in taking any additional precautions advised by their clinicians; extra consideration should also be given to workers facing mental and physical health difficulties, including mental health and wellbeing support.

The guidance also comments that employers looking longer term at future hybrid working models (including an element of home working) should be discussed with those who might be affected and also with employee representatives.

Another significant change is in relation to face coverings: the previous guidance stated that the government did not expect to see employers relying on face coverings as risk management for the purpose of their health and safety assessments, given that social distancing measures and increased hygiene were considered the best ways of managing risk. With the removal of social distancing rules, there is a tacit acknowledgement in the new guidance that employers may wish to consider whether to require the use of face coverings as part of their risk assessment.  Section 7 notes that face coverings are no longer required by law, but suggests that employers should consider encouraging their use, particularly in indoor areas where workers may come into contact with people they do not normally meet and especially if this is in enclosed and crowded spaces.  It notes that the duty of reasonable adjustments to disabled workers and clients needs to be taken into account when deciding whether to ask workers or customers to wear a face covering.

There is a new instruction to employers who become aware of a positive case in their workplace to immediately identify any close workplace contacts and ask them to self-isolate – and not to wait for NHS Test and Trace. The employer should also inform the local authority public health team. Free worksite lateral flow testing is due to end on 19 July, but individuals can still access NHS tests at home or at a test site and of course employers could choose to provide testing privately. The guidance also reminds employers that they should continue to take measures to reduce the risk of transmission even if workers have received a recent negative test result, had one or two doses of the vaccine, or have natural immunity (based on proof of a positive PCR within the past 180 days).  Local authorities will continue to have the power to place public health restrictions on businesses in cases where a serious and imminent threat to public health is identified.

Please do get in touch with your usual HSF contact if you would like to discuss the implications of this new guidance for your business.

Tim Leaver
Tim Leaver
Partner, Employment, London
+44 20 7466 2305
Jenny Andrews
Jenny Andrews
Of Counsel, Employment, London
+44 20 7466 6430
Sian Greenley
Sian Greenley
Associate, Employment, London
+44 20 7466 2683
Anna Henderson
Anna Henderson
Professional Support Consultant, Employment, London
+44 20 7466 2819

UK Covid-19: ‘Freedom Day’ to go ahead, but continuing precautions advised

Yesterday evening the Prime Minister confirmed that Step 4 of the Government’s roadmap will go ahead on Monday 19 July.  The legal rules on social distancing, social contact and face coverings and the instruction to work from home where possible will be lifted from that date, but the Government “expects and recommends a gradual return” to the workplace over the summer.

Key protections being retained include:

  • targeted asymptomatic testing and an encouragement to businesses to use the NHS Covid Pass in high risk settings (save for those engaged in essential services and essential retail, and subject to compliance with all legal obligations, including on equalities); it is also suggested that people may wish to use regular rapid testing to help manage periods of risk such as returning to the workplace;
  • self-isolation for those testing positive or close contacts (although contacts who are fully vaccinated or under 18 will not need to self-isolate from 16 August but may be advised instead to perform a PCR test);
  • continued border quarantine requirements (with the exception of fully UK-vaccinated UK residents returning from amber list countries);
  • while prevalence is high, an expectation and recommendation that face coverings be worn (unless exempt) when coming into contact with people not normally met in enclosed and crowded areas (such as public transport), and an emphasis on minimising social contact and being outside/ventilating indoors spaces. The guidance suggests that carbon dioxide monitors could be used to help identify where a space is poorly ventilated with businesses encouraged to take steps to improve ventilation if carbon dioxide readings are consistently high.

The details published so far are available here; the most comprehensive document is Coronavirus: how to stay safe and help prevent the spread from 19 July.  As yet the Government has not updated the list of most important symptoms of the virus despite suggestions from medical experts that these are no longer the key symptoms of the Delta variant.

Clinically extremely vulnerable people are advised to follow the same guidance as everyone else as a minimum, and to “think particularly carefully about additional precautions” – updated guidance for the clinically extremely vulnerable is available here.

The Government is expected to issue updated “Working safely” guidance for employers in the next few days.  It has been reported that six guidance notes will replace the 14 documents currently available here. They are expected to stress the importance of ventilation and the need to continue with risk assessments.

The Government will review the situation in September and consider whether to continue or strengthen public and business guidance as we approach the winter.

Anna Henderson
Anna Henderson
Professional Support Consultant, Employment, London
+44 20 7466 2819

UK Covid-19: round-up of recent changes concerning CJRS claims and lockdown rules

  • Employers claiming for furloughed employees under the Coronavirus Job Retention Scheme (CJRS) need to keep a close eye on deadlines. Monthly deadlines for claims must be now met unless an employer has a ‘reasonable excuse’ for a late claim (see here);  the next deadline is 15 February 2021.  More imminent is the deadline for applying for claim details to be withheld from publication.  HMRC intends to publish a list of the names of employers who have claimed under the scheme since 1 December 2020 on 26 January 2021, and from February HMRC will publish employer names, company numbers and the band of claim value every month.  Employers wishing to be excluded from publication (on the ground that this would result in serious risk of violence or intimidation to certain individuals) should apply as soon as possible; the procedure for doing so has now been added to the Guidance.
  • The CJRS has now been extended until the end of April 2021.  The CIPD and CBI have both argued that the Government should act now to extend the scheme to the end of June 2021 (potentially with reduced levels of wage support from the beginning of May);
  • The third national lockdown was announced on 4 January 2021 and is expected to last until at least mid-February; regulations implementing the lockdown expire on 31 March 2021. The Stay at Home guidance provides that people may leave for work only if they cannot ‘reasonably’ work from home and urges employers to take every possible step to facilitate employees working from home;  where workplaces are open, COVID-19 secure guidelines should be followed closely and extra consideration given to those people at higher risk.
  • CJRS guidance has been amended to make clear that the ability to furlough employees with caring responsibilities includes those who are unable to work all or some of their hours due to caring for children who are at home as a result of school and childcare facilities closing during the lockdown (as well as those caring for a vulnerable individual in their household).  The Government has so far resisted calls to give parents and other carers a legal right to be put on furlough. Some large employers have adopted alternative measures to assist working parents, including additional paid leave and increased flexibility over hours.
  • With the clinically extremely vulnerable now advised to shield once again (in Tier 4 from 20 December, and nationally from 5 January until 21 February 2021), meaning that they are strongly advised to work from home and not to attend work if they cannot work from home, the guidance also makes express the point that employers do not need to be facing a wider reduction in demand or be closed to be eligible to claim furlough for employees who are clinically extremely vulnerable or at the highest risk of severe illness from coronavirus.   Statutory sick pay remains available as an option for employees who are shielding.
  • Guidance for pregnant employees published on 23 December 2020 advises greater precautions for those who are 28 weeks pregnant and beyond, or have an underlying health condition, given the increased risk of severe illness and pre-term birth. For many workers this may require working flexibly from home, potentially in a different capacity, or suspension on paid leave.
  • Plans have been announced to roll out asymptomatic testing across all areas to focus on key workers unable to work from home.  Regulations now provide that payments made by employers to employees between 25 January 2021 and 5 April 2021 (inclusive) to cover the costs of COVID-19 antigen tests are disregarded for NIC purposes;  HMRC has confirmed it will exercise its discretion to apply the same approach to payments made earlier in the 2020-21 tax year.
  • Due to concerns over the emergence of new variants of coronavirus globally, from 18 January 2021 all travel corridors were removed, requiring all international travellers arriving in England to take a pre-departure test and self-isolate for 10 days (usually subject to the test to release scheme).  International travel from certain countries (in South America, Africa and Portugal) is banned save for returning residents, who must self-isolate for the full 10 days (and cannot ‘test to release’) – see here. Exemptions from quarantine for various jobs, including for senior executives bringing significant economic benefit to the UK, have been suspended.  These measures are to be reviewed on 15 February 2021.

UK Covid-19: recent developments for employers on CJRS, working safely and international travel

Employers have had to respond to continual changes to Covid-19-related rules and guidance over the last year, and the last month has been no exception.  Of course the biggest change has been the end of the national lockdown in England and the introduction of a revised tier system from 2 December 2020, but employers also need to keep an eye on more minor changes to guidance, summarised below.

CJRS

Changes to the Coronavirus Job Retention Scheme guidance following the extension of the scheme at the beginning of November (see here) include:

  • On 13 November 2020 the Treasury published its Direction formally extending the Coronavirus Job Retention Scheme from 1 November 2020 until 31 March 2021 and setting out the conditions for claims up to 31 January 2021.  A further direction will be needed in respect of February and March, reflecting the outcome of the Government’s planned review of the level of employer contribution.
  • The guidance covering holiday has been amended to expressly provide that an employer can only place employees on furlough if coronavirus is affecting its operations and should not place employees on furlough just because they are going to be on paid leave or the employer usually does less business over the festive period.
  • The guidance now makes clear that employers do not need to be facing a wider reduction in demand or be closed to be eligible to claim furlough for employees who are clinically extremely vulnerable or at the highest risk of severe illness from coronavirus.
  • A new document sets out the deadlines for claiming in respect of each calendar month (as specified in the Treasury Direction) – the first deadline for November claims is 14 December.  Note that November is the last month for which furlough claims can be made in respect of employees serving notice of termination.
  • Details have been added to the guidance as to what might amount to a reasonable excuse for an employer’s late submission of a claim. These include the death of a partner or close relative, a serious life-threatening illness, computer failure and service issues with HMRC’s online portal. Although not expressly stated, the same grounds are likely to be relevant in considering late applications to amend a claim.  The guidance now provides that employers must contact HMRC first to ask about submitting a late claim.
  • The guidance also now sets out the claim band ranges that will be used when HMRC publish employer claim information, and confirm that this information will start to be published from February 2021 covering claims for periods starting on or after 1 December 2020.  Also from February, HMRC will include details of claims made for furloughed employees, for claim periods starting on or after 1 December 2020, in their Personal Tax Account on GOV.UK (to facilitate employees in checking whether a fraudulent claim has been made in respect of them).
  • There are still discrepancies between the employee guidance, which continues to state that a furlough claim can be made for an employee who is also on statutory maternity leave and pay (to cover contractually enhanced maternity pay) but not for employees receiving Maternity Allowance, and the amended employer guidance.  The amendments have confused the issue, seemingly suggesting that maternity leave always has to be ended to place an employee on furlough (even where there are receiving statutory maternity pay rather than Maternity Allowance), but this is probably an error.  Employers may wish to clarify this with HMRC if relevant.

Health and safety guidance for employers

  • Under the new tiers, the advice for clinically extremely vulnerable individuals is to work from home if possible, either in their existing or an alternative role, but they can attend work if this is not possible – this now applies in Tier 3 as well as the lower tiers.  The Government will only advise individuals to shield in the very worst affected areas within Tier 3 and only for a limited period of time; as before, individuals who receive written advice to shield will be entitled to statutory sick pay.
  • The Government’s Winter Plan (para 63) notes SAGE advice that typically over one third of contacts are made at work, that these are often of long duration and highly clustered and that homeworking can have a significant effect on reducing transmission if all those who can work from home do so. The Plan encourages employers to enable a greater degree of home working and is clear that anyone who can work from home should do so, although it also recognises that there are specific reasons why attendance in the workplace may be needed, including mental health issues or concerns and/or a need to work on-site physically.
  • The Working safely guidance notes have been updated with updated advice on ventilation, face coverings, staff canteens and mental health considerations. The threshold for contacting the local PHE health protection team to report a suspected outbreak has been raised from two to five cases of Covid-19 associated with the workplace within 14 days.
  • Public Health England, the HSE and the Faculty of Occupational medicine issued a consensus statement on the best approach to reducing risk for workers including those from ethnic minority groups.  This recommended following existing guidance to mitigate the risks for all workers, rather than solely targeting measures at ethnic minority groups. Individual discussions with those at greater risk should take place as part of a wider workplace risk management strategy.
  • Medical research has suggested that environmental factors including low temperatures, low air exchange rates and metal surfaces increase the risk of transmission of Covid-19, and that this should be factored into employer risk assessments where relevant.

International travel

  • Guidance and regulations have been published on a new exemption from the requirement to self-isolate on travelling from a country outside of the UK’s travel corridor.  The Business Jobs and Investment Exemption applies to a senior executive (ie, someone who is a multinational, returning, or international executive, as defined) who is undertaking work with a ‘significant economic benefit’ to the UK (ie, more than a 50% chance of creating or preserving at least 50 UK based jobs or resulting in the purchase of goods or services from certain UK-based companies).  The exemption will only cover activities which cannot be done remotely or by someone else not self-isolating.
  • On 11 December it was announced that from Monday 14 December, the required period of quarantine following international travel, and for contacts of someone who has tested positive, will be reduced from 14 days to 10 days.
  • From 15 December, the Test to Release scheme will enable those arriving in the UK to choose to pay for a private Covid-19 test no earlier than 5 full days after leaving a destination not on the travel corridor list; if the result is negative, the individual can stop self-isolating.

Other 

  • Regulations have been made extending the temporary provisions on calculating a week’s pay for statutory notice and redundancy pay purposes (to avoid disadvantaging an employee who has been furloughed on reduced pay during the calculation reference period) to apply until the end of the extended CJRS on 31 March 2021 (rather than ending on 31 October 2020).
  • Regulations have been made to provide that coronavirus tests provided by, or on behalf of, an employer between 8 December 2020 and 5 April 2021 (inclusive) are not taxable benefits in kind.
  • HMRC has issued guidance on the penalties that it might charge where an income tax charge has not been notified regarding overpayments made under the CJRS (and certain other financial support schemes).
  • The Information Commissioner’s Office has updated its guide on data protection issues associated with testing for Covid-19.
  • Wrongful trading liability for directors has been suspended from 26 November 2020 to 30 April 2021;  this leaves a gap between 1 October and 25 November when liability was not suspended.
  • The Government is consulting on options to reform post-termination non-compete clauses in contracts of employment as part of the effort to support economic recovery post- pandemic – see our blog post here for further details. The impact of the pandemic on the number of hours employers can offer to employees is also the motivation for a second consultation: views are sought on extending the ban on exclusivity clauses in employment contracts (which currently applies to zero hours employees) to cover contracts where workers’ guaranteed weekly income is less than the Lower Earnings Limit.
  • The DWP has added a new section to its guidance note, Disability Confident: guide for line managers on employing people with a disability or health condition to cover the challenges presented by the pandemic.
  • The UK mass roll-out of the Pfizer-BioNTech vaccine has begun and the Government has published the priority groups for vaccination here. Some employers are starting to think through what their vaccination policy should be once a vaccine is commercially available (although the roll-out details make clear this is unlikely to be for some time). Please do get in touch with Tim Leaver or your usual HSF contact if you would like to discuss this issue further.

 

Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK Covid-19: updated guidance published on extended CJRS

Updated 12, 13 November 2020

The guidance on the Coronavirus Job Retention Scheme has now been updated to set out the rules under the scheme extension from 1 November 2020; links to the latest versions are available here.  These largely reflect the details already announced and much of the technical detail of the scheme remains unaltered from the August version (with the exception of the core eligibility rules), but there are a few points worth highlighting:

  • From December 2020, employers may no longer be able to claim a CJRS grant to cover furlough pay for employees who are under notice of termination. The guidance states that “The government is reviewing whether employers should be eligible to claim for employees serving contractual or statutory notice periods and will change the approach for claim periods starting on or after 1 December 2020, with further guidance published in late November.”  Update: on 13 November this was amended to confirm that claims cannot be made for days on or after 1 December 2020 during which a furloughed employee was serving a contractual or statutory notice period, including notices of retirement or resignation. 
  • The required furlough agreement with employees can be made retrospective to cover the period from 1 November 2020, but must be put in place by this Friday 13 November 2020.
  • Claims under the extended scheme can be made from 11 November 2020 and must be submitted by 11.59pm 14 calendar days after the month being claimed for (so any annually paid employees may need to be paid earlier than usual for any time they are on furlough).  HMRC may accept a claim made after the relevant deadline if the employer had a reasonable excuse for failing to make a claim in time and then claimed without delay after the excuse no longer applied (but note that HMRC “will not consider reasonable excuses” prior to the claim deadline).  A claim can be amended to increase the amount claimed only if this is done within 28 calendar days after the month the claim relates to.  If a deadline falls on the weekend then it is extended to the next working day.
  • From December 2020, HMRC will publish the names of employers (and the company registration number for companies and Limited Liability Partnerships) who have made claims under the scheme for December onwards. Update: on 13 November the guidance was amended to note that HMRC will also publish an indication of the value of the claim, and will publish further detail on how this will be done in late November. The updated version also confirms that employers’ details will not be published if this would result in a “serious risk of violence or intimidation” to certain individuals (including any employee, director, officer, partner, LLP member, individual employer etc), or any individual living with them” and the employer requests this with supporting evidence. Further details of how to make a request will be available soon. 

As previously announced, the guidance confirms that:

  • employers will be able to claim 80% of an employee’s usual salary for hours not worked up to a maximum of £2,500 per month (or a prorated amount for flexible furlough); employers will only need to pay for the cost of employer NICs and pension costs for hours not worked;
  • employers do not need to have previously claimed for an employee under the previous version of the CJRS;
  • employers can claim for employees who were employed on 30 October 2020, as long as they have been included in a PAYE RTI submission to HMRC between 20 March 2020 and 30 October 2020;
  • employees included on an RTI submission between 20 March and 23 September 2020 who subsequently stopped working for their employer can also qualify for the scheme if the employer re-employs them;  the same applies to employees on fixed term contracts expiring after 23 September 2020 (note the employee guidance wrongly refers to 23 October on this point); Update: on 12 November this was amended to cover employees employed on 23 September 2020, and included in an RTI submission between 20 March and 30 October 2020;
  • for employees who were previously eligible for the CJRS, the calculation rules for usual hours and wages remain the same;  otherwise the reference periods are updated to the last pay period ending on or before 30 October 2020 for individuals with fixed hours and pay and for those on variable hours averaging is to be done using the period from 6 April 2020 (or any later start date) up to the first day of furlough on or after 1 November 2020;
  • the closing date for claims up to and including 31 October remains 30 November 2020.

The Treasury Direction which will provide the legal framework for the extended scheme has not yet been published.  It is to be hoped that the inconsistencies between various iterations of the guidance and subsequently published Directions which plagued earlier versions of the scheme can be avoided, given the uncertainty this created for employers.  However, the errors sprinkled through the latest updates do not augur well.  For example:

  • the guidance states that where employees transfer from a previous business under TUPE or PAYE business succession rules, the new employer can claim for these employees provided they were employed by their prior employer on or before 30 October 2020 and transferred to their new employer on or before 1 September 2020. Most new employers who have acquired a business by 1 September 2020 would be able to satisfy the basic eligibility condition without this extra provision (ie, the acquired employees will in most cases have been included on an RTI submission made by 30 October 2020), rendering it pointless.  HMRC have since tweeted that it should have referred to acquisitions on or after 1 September 2020. Update: on 12 November the guidance was amended to state that claims can be made provided the employees were transferred on or after 1 September 2020, and were employed by either old or new employer on 30 October 2020 and included by either old or new employer in an RTI submission between 20 March and 30 October 2020.
  • the employer guidance still only references the ability to claim for employees serving statutory notice of termination during furlough, whereas the employee version refers to claims during both statutory and contractual notice. In any event, this discrepancy will soon be irrelevant as from 1 December 2020 claims cannot be made for notice periods (see above). 

 

Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK Covid-19: Chancellor announces extension of CJRS to the end of March; Job Retention Bonus falls away

The Chancellor has just announced that the Coronavirus Job Retention Scheme, or ‘furlough’, recently extended until 2 December, will now be extended to the end of March 2021 for all parts of the UK.

The scheme will continue to provide for employees to be paid 80% of their salary for hours not worked (up to a maximum of £2,500 per month) and employers will only be required to cover employers’ pension contributions and National Insurance Contributions for hours not worked (and also pay for any hours actually worked).  The CJRS extension will be reviewed in January “to examine whether the economic circumstances are improving enough for employers to be asked to increase contributions”. The Job Support Scheme is therefore postponed.

The Jobs Retention Bonus, the purpose of which was to encourage retention until the end of January, will not now be paid in February and the government will redeploy a retention incentive “at the appropriate time”.

A Factsheet is available here; more detail is included in guidance here.  In addition to details already published (see our earlier blog post), these confirm that employees included on an RTI submission on or before 23 September, who subsequently stopped working for their employer, can also qualify for the scheme if the employer re-employs them.   Full guidance is to be published on Tuesday 10 November.

Employers should note that the closing date for claims up to and including 31 October remains 30 November 2020.

Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK Covid-19: national lockdown and extension of furlough throughout November, Job Support Scheme delayed

Updated 3 and 4 November 2020

The Prime Minister’s announcement on Saturday 31 October of a planned new national lockdown from Thursday 5 November to Wednesday 2 December (subject to parliamentary approval) was accompanied by a decision to extend the Coronavirus Job Retention Scheme (CJRS) for a month to cover the lockdown period, and a consequent delay to the start of the less generous Job Support Schemes originally scheduled to apply from today.  The legal framework and guidance have yet to be put in place.

The Treasury’s announcement confirms that the scheme extension is to be based on the August version of the CJRS:

  • Flexible furlough is permitted – employees can be fully or partially furloughed and will be paid 80% of their salary for hours not worked (up to a maximum of £2,500).
  • Employers will only be required to cover employers’ pension contributions and National Insurance Contributions for hours not worked (and also pay for any hours actually worked);  employers can choose to top up pay if they wish.
  • All employers with a UK bank account and PAYE scheme will be eligible and they do not need to have used the CJRS previously.
  • All employees for whom an RTI submission has been made on or before 30 October will be eligible – there is no need for an employee to have been previously furloughed. Update: HMRC have now stated that employees included on an RTI submission on or before 23 September who subsequently stopped working for their employer can also qualify for the scheme if the employer re-employs them. 
  • Payment will be upfront as before (although payment for the next few days, while the legal terms of the scheme and the administrative systems are updated, will be in arrears).
  • There will be no gap in eligibility for support between the previously announced end-date of CJRS and this extension.

Employers who have taken steps to place employees on the Job Support Scheme, including switching furloughed employees onto that scheme, will need to contact those individuals as soon as possible to ensure that they are covered by the extended CJRS instead.  Please do get in touch with your usual Herbert Smith Freehills contact for assistance with this.

The new restrictions note that:

  • Everyone who can work effectively from home must do so. Where people cannot do so (for instance people who work in critical national infrastructure, construction or manufacturing) they should continue to travel to work/attend their workplace. Public sector employees working in essential services, including education settings, should continue to go into work. Extra consideration should be given to those people at higher risk.
  • The clinically vulnerable and those over the age of 60 are urged to be especially careful to follow the rules and minimise contacts with others. Those who are clinically extremely vulnerable should not only minimise their contacts with others, but also not go to work if they are unable to work from home and may be eligible for Statutory Sick Pay or Employment Support Allowance. New guidance for these individuals was published on 4 November here with the changes highlighted here and the Government will write to everybody who is clinically extremely vulnerable to set out detailed advice.  Individuals with chronic kidney disease (stage 5), those undergoing dialysis, and adults with Down’s Syndrome have also been added to the list of clinically extremely vulnerable.

The definition of “clinically vulnerable” used in the guidance on the national restrictions originally included all those over 60, rather than 70, for the first time – the tiered restrictions referred to those over 70 as clinically vulnerable. This definition was subsequently amended to revert to 70, but with those over 60 still encouraged to take similar precautions on the basis that they could also be at higher risk of severe illness.  This reflects the World Health Organisation’s guidance that COVID-19 is often more severe in people who are older than 60 years.  The extension of the advice to those aged 60 and over obviously increases the proportion of the workforce who may have heightened concerns about attending their workplace.

Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK Covid-19: formal shielding advice to apply only in the worst of ‘very high’ alert level areas

Following the announcement that three local Covid alert levels will be introduced from Wednesday 14 October, the Government has published new guidance for those identified as clinically extremely vulnerable who were advised to shield during the Spring lockdown.

The guidance notes that due to the measures to reduce transmission now in place, the need for strict shielding has reduced. It also recognises the potentially harmful impacts on mental and social wellbeing of strict shielding.

Everyone is currently advised to work from home where possible but, if this is not possible, the guidance makes clear that clinically extremely vulnerable employees can still go to work.  Where an area is at the “very high” Covid alert level, these individuals are strongly advised to work from home.  If this is not possible, the option of an alternative role or changed working patterns should be considered but, if there is no alternative, such individuals can still go to work as the employer should have taken steps to make the workplace COVID-19 secure.

Formal shielding advice will only be reintroduced in the very worst affected local areas, in some only of the very high alert level areas and based on advice from the Chief Medical Officer.  This will be for a limited period of time.  The Government will send shielding notifications to those affected and these individuals should not attend work (if they cannot work from home) and may be eligible for statutory sick pay.

UK Covid-19: Job Support Scheme extended to cover closed business premises

On Friday 9 October HM Treasury announced that the Job Support Scheme will be extended to support all UK firms legally required to close as a direct result of local or national coronavirus restrictions (including businesses required to provide only delivery and collection services from their premises). Details are set out in a factsheet with further guidance due “in the coming weeks”.

Employers will receive grants to pay two thirds of the wages of staff who were employed on or before 23 September and are unable to work for a minimum of 7 consecutive days, up to a maximum of £2,100 a month.  Employers will not have to contribute to wages (although they may top up wages if they wish), but will have to cover pension and national insurance contributions. The scheme will commence on 1 November 2020 and be available for six months, with a review in January 2020.

As for the standard JSS, the factsheet notes the Treasury’s expectation that large employers using the scheme will not be making capital distributions, such as dividend payments or share buybacks, whilst accessing the grant.  There is no mention as to whether the financial assessment test which large employers must meet under the standard JSS (see here) will also apply to this extended version.

The extended scheme will not apply to businesses required to close as a result of specific workplace outbreaks by local public health authorities.

HMRC intend to publish the name of employers who have used the scheme, and employees will be able to find out if their employer has claimed for them under the scheme. HMRC will continue to operate a hotline for individuals to report any fraudulent claims of which they may be aware.