UK Covid-19: new Treasury Direction on Coronavirus Job Retention Scheme from 1 July 2020

The Government has today published a further Treasury Direction dated 25 June 2020 setting out the legal framework for claims under the Coronavirus Job Retention Scheme (CJRS) in respect of periods from 1 July 2020.  This gives effect to the Guidance amended on 13 June to cover “flexible furlough” (summarised here).  From 1 July 2020, employers will be able to claim in respect of employees who have been furloughed fully or partially (for any amount of time and work pattern) under the terms of the new Direction, provided that:

  1. they have previously made a claim under the original, pre-July CJRS for the relevant employees for a consecutive 3 week period of furlough completed within the period 1 March to 30 June (subject to exemptions for individuals in certain circumstances), and
  2. the number of employees who can be claimed for cannot exceed the maximum number in any one claim made for furlough periods prior to 1 July, called the “high-watermark number” (save that individuals exempt from the first condition can be added on to this number).

The 13 June Guidance exempted from the first condition any individuals returning from maternity, shared parental, adoption, paternity or parental bereavement leave, who were on payroll on or before 19 March 2020 and on leave before 10 June 2020, provided the employer met the condition for other employees.  An amendment to the Guidance on 19 June added military reservists, returning from mobilisation after 10 June 2020, to the exemption on the same basis.  The employer’s “high-watermark number” cap on future furlough numbers is increased by the number of any such “returning employees” (but there is no requirement to actually furlough these individuals).  Provisions to this effect are now included in the new Direction.

There are similar provisions where a TUPE transfer takes place after 10 June 2020, in relation to transferring employees who were furloughed by the transferor under the original CJRS (but who cannot satisfy the first condition as regards the transferee).  The Direction confirms that the number of these previously-furloughed, transferring employees is added to the transferee’s “high-watermark number” cap in the same way as “returning employees”. (The Direction does not appear to give any effect to the ambiguous comment in the Guidance that “this is subject to the maximum cap the previous employer was subject to”.  This could have meant that if, say, 40 of the transferring employees had at some time been furloughed, but at different times so that the maximum number of these employees included by the transferor in one single claim was 30, only 30 would be added to the transferee’s “high-watermark” cap, or alternatively that the transferor’s own “high-watermark” number in respect of its entire workforce (including those not transferring) was to be added to the transferee’s cap.  Hopefully the Guidance will now be amended to remove this comment.)

The Direction replicates most of the provisions of the earlier Directions governing the pre-July CJRS, including those on the calculation of reference salary and the requirement not to work during furloughed hours.  A large part of the new Direction details complex calculations required to work out “usual hours” and “furloughed hours” in relation to claims for partial furlough.  Although employers are likely to find the Guidance on this slightly more user-friendly than the Direction, it would come as no surprise if the complexity persuaded some employers to continue fully furloughing employees on a rota basis rather than switch to partial furlough.  The new Direction also provides for the tapering of the financial support available to employers from August through to the end of October, as previously announced.

A key point concerns the arrangements that must be made to agree furlough under the new Direction. The drafting of the amended Guidance was unclear as to whether, to be eligible to claim for partial furlough, a written agreement with the employee was required, whereas an oral agreement confirmed in writing by the employer was acceptable for full furlough claims without any need for a written response from the employee.  The Direction now makes clear that there is no such distinction – to be eligible to claim for either full or partial furlough, an oral agreement can be reached with the employee and then confirmed in writing (which can include email) by the employer.  Employers should note that there is a new express requirement that the agreement must have been made (but not necessarily confirmed) before the beginning of the claim period – retrospective agreements will not be sufficient.  However, the Direction confirms that an agreement can subsequently be varied to reflect any variation agreed during the period to which the claim relates. Again, it would be helpful if the Guidance were amended to conform.

We will be publishing an updated version of our client briefing on the CJRS shortly.

 

In other recent developments :

  • HMRC has published a new web page on how employers can pay all or some of the CJRS grant back if it has been overclaimed;
  • guidance on the taxation of expenses where employees work from home due to coronavirus has been published here;
  • relaxations to lockdown announced from 4 July are summarised here and updated working safely guides for employers, including for those in business sectors permitted to reopen from 4 July, can be found here;
  • the Prime Minister has announced plans to “pause” the shielding programme for the clinically extremely vulnerable in England on 31 July 2020 unless there is a “significant rise in cases” in the meantime.  This is likely to mean that shielding employees will not be entitled to statutory sick pay if continuing to shield from 1 August. The press release states that “the government is asking employers to ease the transition for their clinically extremely vulnerable employees, ensuring that robust measures are put in place for those currently shielding to return to work when they are able to do so.  For anyone concerned about returning to work once the guidance has eased, we recommend they speak with their employer to understand their specific policies in relation to COVID-19. We advise they discuss their situation, agree a plan for returning to work and adjustments that may be needed before they return.”
  • the Information Commissioner’s Office has published further guidance on data protection covering issues such as mandatory workplace testing and what information should be provided to employees about results from a commissioned testing service.  The ICO has also produced advice on issues around home working.

 

UK Covid-19: further guidance on partial furlough published

At 9pm yesterday (12 June) HMRC published updated guidance to reflect the changes to the Coronavirus Job Retention Scheme to permit flexible furlough from 1 July and require increasing levels of employer contribution from 1 August.  These changes were announced on 29 May and further guidance was promised by 12 June.  In fact, many of the amendments to the guidance pages simply add the information already provided in the 29 May Fact Sheet but there are some further details which we have highlighted below.  The legal framework for the revised scheme will require a further Treasury Direction as the current one only applies until 30 June;  no date for publication of a revised Direction has been given.

All of the guidance notes have been updated, with the exception of the “Work out 80% of your employees’ wages” page, the text from which has effectively been updated and moved to two new pages entitled “Steps to take before calculating your claim” and “Calculate how much you can claim“.  (The holiday pay section in the Work out 80% page has been moved, substantively unchanged, to the Check if you can claim page, so that the Work out 80% page is no longer relevant.) There is a helpful page with links to all the current guidance here and an overview focussing mainly on the changes to employer contribution levels here.

The guidance confirms the key eligibility conditions for claiming any type of furlough after 30 June as:

  1. the employer must have successfully claimed a CJRS grant for the relevant employees for a consecutive 3 week period of furlough completed within the period 1 March to 30 June.  There is an exemption for those returning from maternity, shared parental, adoption, paternity or parental bereavement leave who were on payroll on or before 19 March and on leave before 10 June (and provided the employer has met the condition for other employees).  The employee does not need to actually be on furlough on 30 June, as long as they have already completed a furlough period of 3 consecutive weeks.  The employer must claim for furlough periods up to 30 June by 31 July.
  2. the number of employees who can be claimed for cannot exceed the maximum number in any one claim made for furlough periods prior to 1 July (save that family leave returners can be added to that cap).

Where a TUPE transfer takes place after 10 June, the transferee would not be able to meet the first condition in relation to transferring employees even if the employees have been furloughed by the transferor.  Helpfully, the “Check which employees you can put on furlough” guidance confirms that an exception is made in these circumstances where the transferor has submitted a claim for 3 weeks’ furlough prior to 30 June for the relevant employees.  The number of relevant employees is also added to the transferee’s cap under (ii) above, enabling the transferee to continue to furlough these individuals without affecting its ability to furlough its existing workforce.  Similar provisions apply for changes in ownership under PAYE succession rules, transfers from a liquidator, and consolidations of group company PAYE schemes.

The requirements for agreeing furlough are set out in the Check if you can claim for your employee’s wages guidance.  This has been reworded and now notes that agreements to furlough should be consistent with equality and discrimination laws, as well as employment law, and that records of hours worked and furloughed should be kept.  The guidance makes clear that flexible furlough will require specific agreement on the new furlough arrangement; there is a reference to a “written agreement” for flexible furlough, whereas full furlough only requires agreement and a written record of the agreement (so that the employee does not have to provide anything in writing).  The difference is probably unintended and will hopefully be corrected. (HMRC may also want to correct the statement that when employees are on furlough, “you cannot ask your employer to do any work”… )

Flexible furlough can involve working for any amount of time and any work pattern; the employer must itself pay for the hours worked and can claim a grant for the furloughed hours (which will be subject to the same conditions as previously, eg not working during those hours).  The guidance makes clear that employers can choose to furlough only part of their workforce and can also continue to fully furlough employees after 1 July if required.

An important point to note is that, if furlough periods start before 1 July, the furlough must still last 3 consecutive weeks (even though it will end after 1 July) in order for the wages to be claimed under the CJRS.  Only furlough starting on or after 1 July can be for any duration (the restrictions being on the period for which claims are made (see below), rather than the period of furlough itself).   However, the employer would need to make claims covering the days in June and the days in July in two separate claims as set out below.

The key document for employers is the new Steps to take before calculating your claim guidance.  Some of the complexity comes from the fact that, from 1 July, claims can only cover days within one calendar month, but this does not prevent the furlough itself from overlapping months – there is no need for an employee’s furlough to be ended and restarted with each month-end.  For some employers claim periods may well differ from pay periods. The guidance provides that:

  • claims for any furlough periods starting before 1 July must end on or before 30 June (and be submitted by 31 July 2020).  Separate claims will need to be submitted to cover the days in June and the days in July, even if employees are furloughed continuously.
  • claim periods starting on or after 1 July must start and end within the same calendar month and must last at least 7 days unless claiming for the first few days or the last few days in a month. Employers can only claim for a period of fewer than 7 days if the period they are claiming for includes either the first or last day of the calendar month, and they have already claimed for the period ending immediately before it.
  • employers can only make one claim for any period so must include all furloughed or flexibly furloughed employees in one claim, even if they are paid at different times. Where employees have been furloughed or flexibly furloughed continuously (or both), the claim periods must follow on from each other with no gaps in between the dates.  Employers using flexible furlough should ideally claim only once they are sure of the exact number of hours being worked during the claim period. If claims are made in advance and turn out to be too high, the overclaim must be paid back.
  • Where an employee is flexibly furloughed, the employer will need to calculate “usual hours”.  This is because the 80% grant available and the monthly cap are reduced to reflect the proportion of “usual hours” that will be furloughed (so if the employee is to work 50% of usual hours, the grant will be half of 80% of usual wages subject to a monthly cap of £1,250).
    • For those who are contracted to work a fixed number of hours and whose pay does not vary according to hours worked, the “usual hours” are the contractual hours as at the end of the last pay period ending on or before 19 March 2020.
    • For those on variable hours and pay, the “usual hours” are the higher of either the average number of hours worked in the tax year 2019 to 2020, or the corresponding calendar period in the tax year 2019 to 2020, including any hours of leave for which the employee was paid their full contracted rate (such as annual leave) and any hours worked as ‘overtime’ where pay for those hours was not discretionary.
    • For piece workers, the same applies as for variable hours workers, but if the hours worked are unknown, the hours should be estimated based on the number of ‘pieces’ produced and the average rate of work per hour.

The Calculate how much you can claim guidance sets out how to do the rather complicated calculations required, including for flexible furlough and once the employer contributions increase in stages from August to October.  A new example of calculating a claim for a flexibly furloughed employee has been published and the previous examples of calculations have been updated.  A cold flannel is advised.

The Claim for wages guidance notes that the information required for a claim will include the number of “usual hours” the employee would work in the claim period, the number of hours they will or have worked, and the number of furloughed hours in the claim period.  Records of this information and also the calculations required to calculate the usual hours should be kept. The guidance also includes some new text explaining how errors made in claiming will be addressed.  If a further claim is being made, that will be adjusted to reflect a previous overpayment; a process is being worked on to recover overclaimed amounts if no new claims are planned.  If there has been an underclaim, the employer should contact HMRC to amend the claim, as it will need to conduct additional checks.

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

UK Covid-19: exemption from 10 June deadline for Job Retention Scheme for family leave returners

Tomorrow (10 June 2020) is the latest date an employer can put an employee on their first period of furlough if the employer wants to furlough that employee for all or part of their normal hours and claim a grant under the Coronavirus Job Retention Scheme (CJRS) after 30 June 2020.  This is because claims for periods after 30 June 2020 will only be possible from employers who have previously used the scheme in respect of employees they have previously furloughed for a 3 week period ending no later than 30 June, as announced on 29 May (see here).

In deciding whether they need to furlough any additional employees now, employers will also want to bear in mind that the total number of employees an employer will be able to claim for in any claim period post 30 June cannot exceed the maximum number they have claimed for under any previous claim under the current CJRS.

On 3 June 2020 Maternity Action wrote to the Chancellor pointing out that the 10 June deadline would exclude women currently on maternity leave, and other new parents or adopters on leave, who are not due to return to work until after 10 June but whose place of work may not be fully re-opened by the time their leave ends.  Maternity Action raised the concern that these employees will simply be made redundant if they cannot be furloughed.

This evening the Government confirmed that an exemption from the 10 June deadline will be made for “parents on statutory maternity and paternity leave who return to work in the coming months after a long period of absence”, provided the employer has previously furloughed other employees. The announcement states that the same will apply to people on adoption leave, shared parental leave, and parental bereavement leave, and that more details of the change will be included in updated guidance to be published on 12 June.

Employers should also note minor changes recently made to guidance on the CJRS specifying that, if employers make an error in a claim resulting in an over-claimed amount, they must pay this back to HMRC. This can now be declared in the next claim – the employer will be asked when making a claim whether it needs to adjust the amount down to take account of a previous error.  Records of the adjustment should be kept for six years. HMRC are working on a process that will allow an employer to inform HMRC and pay back any amounts over-claimed where the employer does not plan to submit any further claims;  guidance will be updated to note when this becomes available.  The guidance also now clarifies how the claim periods work when employees are furloughed at different times.

 

UK COVID-19: Chancellor confirms changes to Coronavirus Job Retention Scheme

The Chancellor has this evening confirmed the following changes to the Coronavirus Job Retention Scheme (CJRS):

  • Claims for periods after 30 June 2020 will only be possible from employers who have previously used the scheme in respect of employees they have previously furloughed for a 3 week period ending no later than 30 June – the latest an employee can be placed on furlough for the first time is therefore 10 June 2020.  Employers will have until 31st July to make any claims in respect of the period to 30 June. (As yet there is no detail as to whether there will be an exception for TUPE transferees unable to comply with this deadline in respect of furloughed transferring employees.)
  • Partial furlough will be possible from 1 July 2020, rather than August as originally announced.  From 1 July, employers will be able to claim in respect of previously furloughed employees either for full furlough, or for partial furlough where employees work part of their normal hours.  The employer must pay wages and employer NICs and pension contributions for the hours worked, and can make claims under the CJRS in respect of the normal hours not being worked.  There is no restriction on the working hours or shift pattern but employers must agree the arrangement with their employee and confirm that agreement in writing.  The minimum period for a claim will be a week (ie, the furlough arrangement agreed between employer and employee and reported in a claim to HMRC must cover a period of at least one week, although the claim could be in respect of wages for only part of a week where the employee is working part of their normal hours).  Further details will be included in future guidance to be published on 12 June.
  • For July, the CJRS grant will continue to cover 80% of wages for unworked hours (subject to the monthly cap of £2,500 or, for partial furlough, a proportionate cap reflecting the hours not worked), plus associated employer NICs and pension contributions.
  • For August, employers must pay the employer NICs and pension contributions for the hours not worked;  the CJRS grant will continue to cover 80% of wages subject to the cap.
  • For September, employers must contribute 10% of the capped wages (plus employer NICs and pension contributions) with the government paying 70% of capped wages for the hours the employee does not work (so the employee continues to receive 80% wages subject to the cap).
  • For October, the employer contribution increases to 20% (plus employer NICs and pension contributions) and the government contribution reduces to 60% of capped wages.
  • Employers can continue to top up wages to 100% if they wish.
  • The scheme will close on 31 October 2020.

The press release is here and a fact sheet with further details here.

We have updated our client briefing on the CJRS to cover these changes, available here.

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

UK COVID-19: test and trace launched

The Government has today launched its test and trace system in England (and similar systems are in place in other regions of the UK).  Guidance for employers has been published here.  Key points for employers are:

  • Individuals who have been notified that they have had contact with an infected person and instructed to stay at home for 14 days under the new NHS test and trace system will also be deemed incapable of work and eligible for statutory sick pay.
  • Unless the notified individuals develop symptoms, individuals in their household will not have to self-isolate.
  • The guidance suggests that employers should allow self-isolating staff to take paid holiday instead of sick leave if they prefer, in order to receive full pay.
  • When someone first develops symptoms and orders a test, they will be encouraged to alert the people that they have had close contact with in the 48 hours before symptom onset. If any of those close contacts are co-workers, the person who has developed symptoms may wish to (but is not obliged to) ask their employer to alert those co-workers. At this stage, those close contacts should not self-isolate, but they:
    • must avoid individuals who are at high-risk of contracting COVID-19, for example, because they have pre-existing medical conditions, such as respiratory issues
    • must take extra care in practising social distancing and good hygiene and in watching out for symptoms.
  • If the person who has symptoms has a positive test result for COVID-19, the NHS test and trace service will ask them to share information about their close recent contacts. If they work in – or have recently visited or attended – one of the following settings, the contact tracing process will be escalated to local public health experts, who will liaise as necessary with the manager of the relevant setting:
    • a health or care setting, for instance a hospital or care home
    • a prison or other secure establishment
    • a school for children with special needs
    • any setting where there is a risk of a local outbreak.
  • In other cases, any non-household contacts who need to self-isolate will be contacted by the NHS test and trace service.
  • If multiple cases of coronavirus appear in a workplace, an outbreak control team from either the local authority or Public Health England will, if necessary, be assigned to help the employer manage the outbreak. Employers should seek advice from their local authority in the first instance.
  • The guidance also suggests that workers who think the contacts that have triggered notifications are workplace contacts should ask their employer to consider what further mitigating actions could be taken to reduce the risk of COVID-19, such as using screens to separate people or ‘cohorting’ to reduce the number of people each person has contact with.
  • The NHS test and trace service will provide a notification that an employee can use as evidence to inform their employer that they have been told to self-isolate pursuant to this service.  Employers will need this evidence if they are a small or medium sized employer claiming a rebate for SSP.

Client briefings

We have published a new client briefing on post-lockdown issues for employers, available here.

We have also developed a Toolkit to assist businesses prepare their own office-based risk assessments; please contact us if this is of interest.

Our latest briefing on the Coronavirus Job Retention Scheme is available here.

Our COVID-19 hub containing more insights across a range of topics is here.

UK COVID-19: new Treasury Direction (published 22 May) amends Coronavirus Job Retention Scheme

On Friday 22 May 2020 the Treasury published a further Direction (dated 20 May) modifying the legal framework for the Coronavirus Job Retention Scheme (CJRS).  Claims for payment under the CJRS made after the publication of the further Direction on 22 May will have to comply with the new, amended version of the Schedule.  Claims made on or before 22 May should comply with either the original Schedule published on 15 April or the new Schedule (as a whole).  The 20 May Schedule extends the scheme until 30 June 2020 so a further Direction will be needed for the extension of the current terms until 31 July, and for the new terms applicable from August (which are expected to be announced towards the end of next week).

Many of the changes are on issues where the 15 April Schedule conflicted with HMRC’s published Guidance and have now brought the Schedule into line with that Guidance or clarified areas of uncertainty.  There are also some new provisions, which presumably will be reflected in further iterations of the Guidance in due course.

Perhaps most significant is the amendment to the requirements for placing an employee on furlough. The 15 April Schedule required a written agreement between employer and employee that the employee would cease all work in relation to their employment, whereas the HMRC’s Guidance initially suggested that only written confirmation of being furloughed was required for the purposes of eligibility under the CJRS, and subsequent versions stated that furloughing should be consistent with employment law but didn’t otherwise need a written agreement.  The 20 May Schedule now provides that, for the purposes of eligibility to make a claim, the required instruction to cease work is satisfied if:

  • the employer and employee have agreed that the employee will cease all work in relation to their employment – and this can be made by means of a collective agreement between employer and trade union
  • the agreement/collective agreement specifies “the main terms and conditions upon which the employee will cease all work” (presumably it would be sufficient to set out the extent to which the pre-furlough terms and conditions have been varied, eg agreed reductions in pay or benefits, and perhaps also the extent to which the employee is permitted to work for other employers or can study or volunteer during furlough)
  • the agreement is incorporated expressly or impliedly in the employee’s contract
  • the agreement is in writing or is confirmed in writing by the employer (and writing includes in electronic form)
  • the employer keeps the agreement/collective agreement/confirmation until at least 30 June 2025.

Employers who did not obtain written agreements from furloughed employees  (whether because they were not varying any contractual terms, or because changes were agreed orally) will welcome this change for future claims.  They may also be able to rely on the new Schedule in respect of past claims (if those claims complied with all the provisions of the new Schedule). However, employers should note that there is still a requirement for agreement, and for a written record to be made of that agreement (covering both the cessation of work and the applicable terms).  It remains unclear whether the agreement itself can be retrospective or implied (although there is nothing expressly prohibiting this).  It would obviously be prudent to ensure these new provisions are satisfied for newly furloughed employees and to provide written confirmation of the agreement for those already furloughed if this has not yet been done.

Other changes include:

  • it seems that the employer and employee can now agree to end a period of SSP in order to start furlough (notwithstanding continuing SSP eligibility) – this is presumably aimed at allowing employers to agree to furlough individuals whose eligibility for SSP is due to being in the extremely vulnerable category advised to shield (but who are not actually unwell);
  • where a period of unpaid leave started before 1 March, and the employer and employee reached an agreement before 20 March 2020 to end it earlier than originally planned, the employee can be put on furlough after the revised end-date;
  • no claim under the CJRS can be made for a period of unpaid leave between 1 March and 30 June and furlough cannot begin during that period; there is no express prohibition on ending that leave earlier than planned in order to furlough;
  • a director will not be treated as doing work (and therefore outside the CJRS) where they are simply making a CJRS claim for, or paying wages to, an employee of the company; the carrying out of duties as a trustee or manager of an occupational pension scheme is also permitted (save where the employer’s business is the provision of occupational pension scheme independent trustee services);
  • furloughed employees can now study or do training even if not directly relevant to the employee’s job and agreed in advance – its purpose can be to generally improve an employee’s effectiveness in the employer’s business or the performance of the employer’s business, provided it does not contribute to business activities, generate income or profit, or significantly contribute to the production of goods or services for sale;
  • it is now clearer that, when calculating the reference salary (80% of which is to be paid, subject to the cap of £2,500 per month), benefits provided through salary sacrifice are not included, but variable payments for overtime, timing of shifts or additional duties will be included provided there is no discretion about how the amount is to be calculated;
  • reference salary for those taking furlough after a period of unpaid leave,  paid statutory family-related or sick leave, or other reduced rate paid leave immediately after statutory leave, should be calculated as if the employee had been on paid annual leave receiving normal pay required under the Working Time Regulations during those periods;
  • an employer no longer needs to deduct from the CJRS claim any amount of SSP for which an employee is eligible, even if not claiming it during furlough;
  • the relevant date for TUPE transfers has been changed to 28 February in line with the current Guidance, a new provision extends the CJRS coverage to TUPE business transfers from an insolvent transferor (where the automatic transfer of employment contracts does not apply) and transferors may also be able to claim for employees whose furlough periods do not last 21 days only because of a TUPE transfer.
Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK COVID-19: launch of online scheme to reclaim SSP, 5 steps to working safely, new guidance from ICO, EHRC and ACAS

1) This morning the Government announced that an online Coronavirus Statutory Sick Pay Rebate Scheme will be launched on 26 May for small and medium-sized employers to recover Statutory Sick Pay (SSP) payments they have made to their employees due to COVID-19-related absence.

2) Following on from last week’s guidance on creating COVID-19 Secure workplaces, the government has also published “Practical actions for businesses to take based on 5 main steps“.  Action points are given under 5 headings:

  1. Carry out a COVID-19 risk assessment
  2. Develop cleaning, handwashing and hygiene procedures
  3. Help people to work from home
  4. Maintain 2m social distancing, where possible
  5. Where people cannot be 2m apart, manage transmission risk

The government has also updated the guidance for the Access to Work scheme to make clear that eligible disabled employees may claim financial support where they need to work from home as a result of the COVID-19 pandemic

3) The Information Commissioner’s Office (ICO) has published a helpful new set of FAQs for employers on COVID-19 workplace testing.  The ICO accepts that employers will often be able to show a legitimate reason for processing health data in compliance with the GDPR, as long as they are not collecting or sharing irrelevant, inaccurate or unnecessary data.  Employers should carry out, and continually review, data protection impact assessments covering any new testing activity.  Data must be processed securely and kept for no longer than necessary, and transparency will be critical.  Employers should keep staff informed about potential or confirmed COVID-19 cases amongst their colleagues, but should avoid naming individuals if possible, and should not provide more information than is necessary. The ICO notes that the use of temperature checks or thermal cameras on site may not be proportionate if the same results can be achieved through other, less privacy intrusive, means.

4) Acas has recently published guidance on the conduct of disciplinary and grievance procedures during the COVID-19 pandemic, noting that an employer will need to decide if it would still be fair and reasonable to carry on with or start a disciplinary or grievance procedure while employees are furloughed, socially distancing at work or working from home.  Relevant factors include the health and wellbeing of employees, the individual circumstances, sensitivity and urgency of the case, any reasonable objections from those involved, and access to technology and evidence.  The arrangements must allow an employee to fully exercise their right to be accompanied.

Employers should treat with caution the guidance concerning employees on furlough.  The guidance suggests that an employee on furlough can act as investigator, meeting chairperson or notetaker for an employer and can give evidence.  However, in our view, such activities would likely amount to doing “work” for the employer which is prohibited by the terms of the Coronavirus Job Retention Scheme and could therefore break furlough and remove or curtail an employer’s ability to claim reimbursement for those employees under the scheme. The guidance also suggests that only voluntary involvement in a disciplinary or grievance process is permitted while on furlough, which seems odd given it is hard to characterise an employee being subjected to a disciplinary process as “doing it out of their own choice”.

5) Acas has also updated its general COVID-19 guidance for employers and employees and published new guidance on mental health during the pandemic.

6) The Equality and Human Rights Commission has published COVID-19 guidance for employers on avoiding discrimination when making decisions on furlough, redundancy, working from home and so on, as well as specific guidance covering employees who are pregnant or on maternity leave.

UK COVID-19: employers should reflect updated symptoms in workplace policies and notices

The UK Government has this morning updated its guidance on self-isolation for COVID-19, reflecting updated medical advice.  From today:

  • individuals will need to self-isolate immediately if they develop a new continuous cough or fever or a loss or changed sense of normal smell or taste (anosmia).   The individual should stay at home for 7 days, or longer if they still have symptoms other than cough or loss of sense of smell.
  • all members of their household must also self-isolate for 14 days according to current guidelines, unless the symptomatic individual receives a negative test result.

Employers should ensure relevant workplace policies and notices are updated to reflect this new advice.

UK COVID-19: People: updates to Coronavirus Job Retention Scheme guidance (including overtime pay and holiday)

Yesterday the Government updated guidance on the Coronavirus Job Retention Scheme (CJRS). The guidance has now been split into a number of separate web pages and the text moved between or within pages, but the only substantive changes are:

  1. The guidance now reflects this week’s announcement confirming the extension of the CJRS in its current form until the end of July. “From August, employers currently using the scheme will have more flexibility to bring their furloughed employees back to work part time whilst still receiving support from the scheme. This will run for three months from August through to the end of October. Employers will be asked to pay a percentage towards the salaries of their furloughed staff. The employer payments will substitute the contribution the government is currently making, ensuring that staff continue to receive 80% of their salary, up to £2,500 a month. More specific details and information around its implementation will be made available by the end of May.”
  2. There is a new clear prohibition on an employer furloughing an employee and then asking them to “volunteer” for the employer in the same or a different role.
  3. With regard to the meaning of “non-discretionary payments” which should be included when calculating the 80% pay (which can be claimed by the employer under the CJRS, subject to the £2,500 per month cap), the guidance now provides that this only includes payments which an employer has a contractual obligation to pay and to which the employee had an enforceable right.  It notes that “when variable payments are specified in a contract and those payments are always made, then those payments may become non-discretionary“.  Payments for overtime worked are non-discretionary for the purposes of the CJRS when the employer is “contractually obliged to pay the employee at a set and defined rate for the overtime that they have worked“. The focus is therefore on whether the employer is obliged to pay specifically for overtime hours worked, rather than on whether the overtime itself is compulsory and/or guaranteed.  This is a helpful (if somewhat belated) clarification of HMRC’s interpretation of the CJRS conditions.  Employers who have not included these amounts in wages paid and/or claims submitted under the CJRS may need to review the terms of their furlough agreements with employees and/or contact HMRC to determine whether any claim can be amended (and the additional sums claimed paid to the employees if not already done so).  Currently the guidance states that “You must claim for all employees in each period at one time – you cannot make changes to your claim. It is not possible to amend a claim once it is submitted. HMRC are looking to develop a process to allow for amendments to be made.”
  4. The guidance now includes a link to new page setting out the Government’s view on the interplay between statutory holiday entitlement and furlough – see more below.
  5. The guidance now lists the employer’s bank account billing address as required information when making a claim, suggests that employers who do not have an employee’s NI number can make a verification request as an alternative to contacting HMRC, and states that records must be kept for 6 years.

 

Holiday entitlement

Previous iterations of the guidance confirmed HMRC’s view that both statutory and contractual annual leave entitlement continues to accrue during furlough (subject to any agreement to vary the contract to remove contractual enhancement during furlough). HMRC has also made clear that employees taking holiday (including bank holidays) during furlough will not break furlough nor invalidate a claim under the CJRS, and set out its view that the Working Time Regulations require holiday pay to be paid at the normal rate of pay (ie, pre-furlough pay) or, where pay varies, the rate calculated by averaging over the previous 52 working weeks.  However, it was not clear whether the HMRC considered furlough would be broken (or it would be unlawful) if employers required furloughed employees to take holiday during furlough (subject to giving the required notice), either where the holiday was pre-arranged or designated after furlough had started.

The new separate (and non-legally binding) guidance published on 13 May  confirms the Government’s view that holiday can be taken without disrupting furlough and that the employer can continue to claim the 80% grant to cover most of the cost of holiday pay.  It envisages that employers can require furloughed individuals to take holiday subject to the usual notice requirements and suggests that employers should engage with their workforce and explain reasons for wanting them to take leave before requiring them to do so.  However, it also goes on to comment that “the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday“.  Of course the same would apply in respect of requiring employees who are not furloughed to take holiday during lockdown.  Later on the guidance notes that ‘in most cases’ furloughed employees will be able to take holiday during the furlough period (see below).

This may indicate the Government’s view that designating holiday during lockdown will generally be effective except perhaps for vulnerable individuals who are following the stronger social distancing guidance, extremely vulnerable individuals who are ‘shielding’, or individuals who are self-isolating due to their or their household having symptoms;  given that ‘social distancing’ is likely to be the ‘new normal’ for some time, it would perhaps be surprising if the social-distancing restrictions on society as a whole were to be treated as sufficient to prevent ‘enjoyment’ of holiday.  However, there is clearly scope for argument, at least until we reach the later stages of the Government’s roadmap out of lockdown. Claims are perhaps more likely where an employer seeks to require furloughed employees to use up their entire year’s entitlement while on furlough.  In practice, employees may accept that a requirement to take a pro rata amount reflecting the expired portion of the leave year is not an unreasonable request.

The guidance also discusses the new right for workers to be able to carry forward some or all of the 4 weeks’ statutory holiday entitlement into the following two leave years where it has not been “reasonably practicable” for the worker to take it due to the effects of coronavirus.  It suggests that factors relevant to what is “reasonably practicable” include:

  • whether the business has faced a significant increase in demand due to coronavirus that would reasonably require the worker to continue to be at work and cannot be met through alternative practical measures
  • the extent to which the business’ workforce is disrupted by the coronavirus and the practical options available to the business to provide temporary cover of essential activities
  • the health of the worker and how soon they need to take a period of rest and relaxation
  • the length of time remaining in the worker’s leave year, to enable the worker to take holiday at a later date within the leave year
  • the extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the coronavirus situation
  • the ability of the remainder of the available workforce to provide cover for the worker going on leave.

It is suggested that workers who are on furlough are “unlikely to need to carry forward statutory annual leave, as they will be able to take it during the furlough period (in most cases at least)”.  One exception may be where, due to the impact of coronavirus on operations, the employer is financially unable to top up the 80% covered by the CJRS to full holiday pay (as required by the Working Time Regulations), in which case the worker would be able to carry over their annual leave.

 

Links to the current guidance:

 

UK COVID-19: People: Chancellor extends furlough scheme until end of October

The Chancellor has just announced in Parliament that:

  • the Coronavirus Job Retention Scheme will continue without change until the end of July
  • the Scheme will remain in place and available to all sectors through to the end of October, but from August there will be greater flexibility. Employers currently using the scheme will be able to bring furloughed employees back part-time.  Employers will also be asked to ‘start sharing the cost’ of the scheme.  Employees will continue to receive at least 80% of their wages subject to the £2,500 per month cap.  Full details will be available by the end of May.

The Treasury press release is available here.