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.

 

UK Covid-19: details of Job Retention Bonus published

On 2 October the Government published further details of the Coronavirus Job Retention Scheme (Job Retention) Bonus announced in July along with the Treasury Direction underpinning the scheme.

The initial announcement set out that a one-off (taxable) payment of £1,000 would be available to UK employers for employees for whom they have made a valid furlough claim, who remain continuously employed through to the end of January 2021 and whose earnings recorded through RTI records were above the Lower Earnings Limit on average for November to January.  The bonus will not be available in respect of employees who have been given notice of termination before 1 February 2021.

Key new points include:

  • The bonus can only be claimed between 15 February and 31 March 2021; further guidance will be published on how to claim.
  • The bonus is payable to the employer and there is no obligation to pass it on to the employee.  Claims can be made for a Job Retention Bonus and under the Job Support Scheme in respect of the same employee.
  • The bonus cannot be claimed for any employees who have not been paid using the Coronavirus Job Retention Scheme grant because the relevant grant amounts have been repaid, regardless of the reason for repayment.
  • The bonus cannot be claimed for an employees who are under notice of termination as at 31 January 2021 regardless of the reason for termination. The guidance specifically mentions that those under notice of retirement are excluded, but this will also apply to exclude individuals under notice of termination for other reasons including resignation.
  • The minimum income threshold is a total of at least £1,560 (gross) taxable pay paid during the tax months 6 November to 5 December 2020, 6 December 2020 to 5 January 2021 and 6 January to 5 February 2021, with at least one payment per month. No allowance is made to this minimum requirement to reflect how often employees are paid or whether an employee took leave on no/lower pay during the period.

The guidance reminds employers making redundancies that they will still need to comply with fair redundancy criteria, even if that means reducing the number of employees covered by the bonus (so ineligibility for the bonus should not be used as a criteria for selection).

HMRC has also published examples of how the minimum income threshold will work in practice.

In terms of action points now, the guidance reminds employers that they need to:

  • still be enrolled for PAYE online and comply with PAYE obligations to file PAYE accurately and on time under Real Time Information (RTI) reporting for all employees between 6 April 2020 and 5 February 2021
  • keep their payroll up to date and make sure they report the leaving date for any employees that stop working for them before the end of the pay period that they leave in
  • use the irregular payment pattern indicator in Real Time Information (RTI) for any employees not being paid regularly
  • comply with all requests from HMRC to provide any employee data for past Coronavirus Job Retention Scheme claims.

 

 

 

UK COVID-19: recent changes to CJRS guidance

A number of changes have been made to the HMRC guidance on the CJRS in the last few weeks, to highlight various deadlines as well as making minor changes to the method of calculating certain claims:

  • The guidance now reflects the deadline of 30 November 2020 as the last day employers can submit or change claims for periods ending on or before 31 October 2020 (when the scheme ends).
  • The CJRS guidance has been updated to make clear that a grant can be claimed in respect of the wages of a furloughed employee who has been given notice of termination, covering the period until the employment ends;  the initial amendment on 10 July referred only to statutory notice but on 17 July a reference to contractual notice was added to the employer guidance as follows: “You can continue to claim for a furloughed employee who is serving a statutory or contractual notice period, however grants cannot be used to substitute redundancy payments.”  A similar amendment was made to the employee guidance and this continues to refer to contractual notice as well as statutory notice; oddly the reference to contractual notice was deleted from the employer version on 3 August (we assume this is a mistake although unhelpfully it has not been corrected in subsequent updates).
  • On 28 July the text setting out what an employer should do if it has underclaimed or overclaimed under the scheme was moved into separate guidance and updated to reflect the new Finance Act 2020 provisions providing for recovery of overpaid grants through the tax system and for penalties.  The new note provides that employers who have overclaimed a grant and not repaid it must notify HMRC by the latest of either 90 days after the grant was received and 20 October 2020. It would be prudent for employers to review their own position before this deadline to check whether a disclosure should be made.  Failure to notify may lead to a penalty of up to 100% of the amount overclaimed;  further details are set out here. HMRC state that they “will not be actively looking for innocent errors in [their] compliance approach“.  The new guidance also notes that claims relating to the period up to 30 June cannot be amended after 31 July to add an employee that should have been included, but amendments for any other errors resulting in an underclaim will still be permitted after 31 July.
  • A couple of changes have been made to the way specific claims should be calculated (for future periods only):  from 7 August claims for fixed pay employees who normally work significant overtime should be calculated using the method for employees whose pay varies; and from 14 September a new method of calculation should be used as set out in the guidance for employees whose furlough or flexible furlough ceases part way through a claim period.
  • The template for CJRS claims for 100 or more employees now requires employers to state whether an employee returned from statutory leave before being put on furlough.

UK Covid-19 developments: criminal offences for knowingly permitting breach of self-isolation rules; changes to return to work guidance

Self-isolation rules and return to work guidance have been continually updated over the last few weeks.  In particular, employers could now be liable for criminal offences for knowingly allowing workers who should be self-isolating to come into the workplace, and employers are once again being told that office workers should work from home over the winter if they can do so effectively. These developments are discussed in more detail below.

Self-isolation and sick pay

On 30 July 2020 the minimum isolation period for people with symptoms of COVID-19 or who have received a positive test result was increased from 7 days to 10 days.  Household members continue to have to isolate for 14 days and for a further 10 days from developing symptoms/testing positive themselves.  The full guidance is set out hereAmendments to the SSP regulations with effect from 5 August ensure that an individual is entitled to SSP for the full period of isolation in accordance with this new guidance, and on 26 August SSP entitlement was extended to employees advised to self-isolate for 14 days before an operation.

There have been several changes to the list of countries with a travel corridor (permitting those returning from the country not to quarantine for 14 days) over the last few months.  SSP is not available for self-isolation for this reason and employers may therefore face requests to work from home, or for further holiday, unpaid leave or furlough (if eligible).  Employers should communicate a clear policy on how they will treat employees required to quarantine following international travel, including any differences depending on the reason for travel and whether or not the quarantine requirement applied before booking/travelling.  Guidance for employers and employers on post travel quarantine was published on 14 August; this states that dismissal should be treated as a last resort and employers should consider alternative arrangements first, such as agreeing with employees to take annual leave or unpaid leave if quarantined employees cannot work from home.

New criminal offences for self-isolation failures – both individuals and employers can now be fined

On 28 September new regulations came into force in England requiring anyone who has tested positive for COVID-19, or has been officially notified by NHS Test and Trace that they have been in contact with someone who has tested positive (note this does not include notification through the NHS COVID-19 smartphone app), to self-isolate for 10 or 14 days respectively.

Once an individual is aware that they are required to self-isolate under the above paragraph or due to international travel quarantine requirements, they must notify their employer (or the employment business or client in the case of an agency worker) of the required isolation period as soon as reasonably practicable and before they are next due to work. The entity that receives the notification from an agency worker must inform others in the agency chain as soon as reasonably practicable. An employer who is aware of a worker’s or agency worker’s requirement to self-isolate (whether by being notified or otherwise) must not allow them to come into work.

Individuals and employers who breach these requirements without reasonable excuse will commit a criminal offence and could be fined between £1,000 and £10,000.  Where the employer is a body corporate, any director or other officer will personally commit an offence if the employer’s offence was committed with the consent or connivance of that officer or attributable to any neglect by that officer. See here for further details.

Employers should ensure their staff are aware of the self-isolation obligations, including to notify the employer, and that line managers are fully briefed to ensure notifying individuals do not come in to work.

Covid-secure workplaces: updates to guidance and reinstatement of “work from home if possible” advice

The Government’s guidance notes for specific types of workplace were updated on 9 September;  the original overarching “5 steps to working safely” have been removed and instead the individual guides set out seven priority actions:

  • complete a COVID-19 risk assessment
  • clean more often
  • ask your customers to wear face coverings
  • make sure everyone is social distancing
  • increase ventilation
  • take part in NHS Test and Trace
  • turn people with coronavirus symptoms away.

These are followed by additional priority actions for each specific type of workplace. The guidance was also was amended to note that the “rule of six” (restricting social gatherings to six people) in force from 14 September does not apply to workplaces, and to set out that employers should keep a temporary record of their staff shift patterns for 21 days and assist NHS Test and Trace with requests for that data if needed.  New guidance for employers on testing and contact tracing (here) advised employers wanting to test non-symptomatic staff to consider private alternatives to NHS Test and Trace.

New measures to suppress the virus were announced on 22 September, including new restrictions in the leisure and hospitality sectors, additional requirements for workers in customer-facing businesses to wear face-coverings when in areas open to the public, along with a reversion to the position that office workers should work from home over the winter if they can do so effectively (although public sector employees in essential services should continue to go to work where necessary).  The Coronavirus outbreak FAQs were amended to advise that there should be a consultation between employer and employee about whether the employee can carry out their normal duties from home. Clinically vulnerable individuals can continue to attend the workplace if it is Covid-19 Secure, although they should work from home if possible. Anyone with COVID-19 symptoms should not go to work, but should self-isolate and take a test, and employers should not require self-isolating employees to come into work.

We are currently working with a number of clients on their return to work strategies and completion of risk assessments. Please contact us if you would like to discuss any of these issues further.

 

UK Covid-19: new Job Support Scheme announced

On 24 September the Chancellor announced the creation of a new Job Support Scheme (JSS) to replace the Coronavirus Job Retention Scheme (CJRS) which ends on 31 October 2020. The JSS will be available for 6 months from 1 November 2020 and will be in addition to the Job Retention Bonus scheme. The purpose of the JSS is to avoid the redundancy of employees working reduced hours in “viable jobs” and it will therefore be conditional on employees working at least one third of their usual hours.  Guidance setting out the detail is yet to be published; key terms summarised in the Treasury’s Factsheet include:

  • all small and medium sized enterprises will be eligible;  larger employers will need to meet a financial assessment test demonstrating that their turnover has been reduced by the pandemic (and will be expected not to make capital distributions such as dividend payments or share buybacks while accessing the grant – it is unclear as yet whether this will be a condition of eligibility);
  • the scheme can be used for employees who have not been furloughed provided they have been included in  a RTI submission made on or before 23 September 2020;
  • the scheme cannot be used to cover wages for employees under notice of redundancy (unlike the CJRS);
  • employees must work at least 33% of their usual hours (and this minimum may be increased after 3 months), but can cycle on and off the scheme and work varying shift patterns, provided each short-time arrangement is for a minimum of 7 days;
  • changes to the employment contract must be agreed and confirmed to the employee in writing;
  • the employer must continue to pay usual wages for the hours worked, plus one third of usual wages for the hours unworked, and must also continue to pay pension contributions and Class 1 employer NICs (the Factsheet does not specify on what proportion of usual wages);
  • the Government will pay for one third of usual wages for the hours unworked subject to a cap of £697.92 a month (which the employer must pay and then claim reimbursement for);  the Government does not expect employers to be able to top up their employees’ wages further (and it is not clear whether this will be a condition of eligibility).

The scheme means that employers will have to pay at least 55% usual wages (where the employee is only working 33% usual hours), with the employee receiving at least 78% (assuming the monthly cap on the Government contribution does not apply).  The Factsheet demonstrates how the employer’s percentage increases to 67% where the employee is working 50% usual hours, and 80% where the employee works 70% of usual hours.

 

UK Covid-19: changes to return to work advice

As announced by the Prime Minister on 17 July, the Government’s advice on returning to work in England changed with effect from 1 August 2020.  Instead of telling people to work from home if they can, the Government is now “giving employers more discretion” on how they ensure employees can work safely: “working from home is one way to do this, but workplaces can also be made safe by following COVID-19 Secure guidelines“.  The guidance now states that employers “should consult closely with their employees, and only ask people to return to their place of work if it is safe.” Employers are urged to “take socially responsible decisions and listen to the concerns of their staff.  Employers and employees should come to a practical agreement about their working arrangements.”  The recommended Covid-19 Secure Notices (here) have been updated accordingly.

On 31 July, the roadmap for easing lockdown restrictions was paused: the re-opening of certain higher risk leisure settings and close contact services was delayed from 1 August to at least 15 August, certain pilots of larger gatherings were put on hold, and from 8 August face coverings were made mandatory in additional public indoor settings;  several local lockdowns have also been put in place.  However, the scheduled pausing of shielding (save where local lockdown measures are in place) and revised advice on return to work from 1 August 2020 have gone ahead and the Government is also planning that schools, nurseries and colleges will be fully open in September.

The pausing of shielding means that clinically extremely vulnerable individuals are no longer entitled to SSP if they remain at home.  The advice is for them to carry on working from home wherever possible, but that they can go to the workplace as long as it is COVID-secure.  However, if they live outside but work inside a local lockdown area where shielding is advised, they should work from home where possible and not attend the workplace;  individuals in this situation may request a shielding letter as proof.

Covid-secure workplace guidance

The Government’s guidance notes for specific types of workplace have been updated a number of times to reflect the above changes.  The advice that staff should work from home if at all possible has been removed; instead employers should make every reasonable effort to ensure their employees can work safely, which could mean working from home or within the workplace “if COVID-secure guidelines are followed closely“.  Employers are now advised to consider the maximum number of people who can be safely accommodated on site and plan for a phased return.  The guidance states that “employers should consult with employees to determine, who from 1 August 2020, can come into the workplace safely taking account of a person’s journey, caring responsibilities, protected characteristics and other individual circumstances.  Extra consideration should be given to those people at higher risk.  Businesses should consider the impact of workplaces reopening on local transport and take appropriate mitigating actions (eg staggered start and finish times for staff).”  On 12 August additional text noted that “The decision to return to the workplace must be made in meaningful consultation with workers (including through trade unions or employee representative groups where they exist). A meaningful consultation means engaging in an open conversation about returning to the workplace before any decision to return has been made. This should include a discussion of the timing and phasing of any return and any risk mitigations that have been implemented.”

In relation to clinically extremely vulnerable employees (who are no longer shielding), they should still work at home if possible but, if not, the guidance encourages employers “to have individual discussions … where reasonable” with those individuals (as well as other workers) to “consider any uncertainties they have about precautions in place to make the workplace COVID-secure“.  They should be offered the option of the safest available on-site roles and it may also be appropriate to adjust their working patterns temporarily. (This was previously the advice for clinically vulnerable employees, but it is now only advised in relation to the clinically extremely vulnerable.)

Also on 12 August, additional guidance was added stating that, In relation to people who are at higher risk of infection and/or an adverse outcome if infected, employers’ risk assessments should consider the Public Health England report Disparities in the risk and outcomes of COVID-19 which shows that some groups of people may be at more risk of being infected and/or an adverse outcome if infected. The higher-risk groups include those who:
– are older males
– have a high body mass index (BMI)
– have health conditions such as diabetes
– are from some Black, Asian or minority ethnic (BAME) backgrounds.

New text includes:

  • a reminder that the use of face coverings can inhibit communication with people who rely on lip-reading, facial expressions and clear sound;
  • guidance that gatherings of more than 30 people can be held in an indoors workplace provided the COVID-secure guidelines are followed;
  • advice to consider redesigning activities if necessary to enable social distancing and, if this is not possible, only continue the activity if needed by the business operation and with all mitigating actions possible to reduce the risk of transmission;
  • further information on optimising fresh air ventilation and providing for disposal of single use face coverings.

As more workplaces re-open, HSE inspections to ensure workplaces are COVID-secure are using a combination of site visits, phone calls and collection of supporting visual evidence such as photos and video footage, including spot checks in places where there are coronavirus outbreaks (see here).  The HSE has highlighted in a press release some of the most common issues that HSE and local authority inspectors are finding: “failing to provide arrangements for monitoring, supervising and maintaining social distancing, failing to introduce an adequate cleaning regime – particularly at busy times of the day – and providing access to welfare facilities to allow employees to frequently wash their hands with warm water and soap“.  New HSE guidance setting out the main control measures and additional measures where social distancing is not possible has been published here.

Our Employment and Health and Safety teams are currently advising clients on their return to work strategies and completion of risk assessments and has prepared an updated Risk Assessment Toolkit for Offices. Please contact us if you would like to discuss any of these issues further.

UK COVID-19: new rules on redundancy and notice pay for furloughed employees

As the Coronavirus Job Retention Scheme (CJRS) begins to wind down through to 31 October 2020 with increasing levels of employer contribution, more employers are having to consider the issue of redundancies.  Two recent Government announcements will be key to these considerations: new regulations which came into force on 31 July 2020 have changed the way in which statutory redundancy and notice pay must be calculated in respect of employees who have been furloughed on reduced pay, and some further information about the Job Retention Bonus, which seeks to incentivise employers to hold off on redundancies, has also been given (although full details are not expected until the end of September).

New rules on statutory redundancy and notice pay for furloughed employees on reduced furlough pay rate

The new regulations are complex but the main points to note are as follows:

Notice

  • Employers can give notice of termination to employees while they are on furlough and can continue to claim a CJRS grant covering the relevant proportion of the wages paid to those employees while they are on statutory or contractual notice. (Some confusion over this, caused by the stated purpose of the CJRS set out in the Treasury’s Third Direction and by a lack of clarity in earlier iterations of HMRC’s guidance, has now largely been cleared up.)
  • There has been some debate as to whether it could be viewed as an abuse of the CJRS to give a longer period of notice than is required by contract or statute, to expire on 31 October 2020 when the CJRS ends.  We consider that the risk of HMRC taking this view and pursuing repayment of the relevant grant is low;  HMRC is likely to focus on clearer cases of abuse, particularly given a recent survey suggesting that, contrary to the rules of the scheme, two thirds of employees furloughed prior to 1 July continued to work for their employers during furlough (albeit that only around 20% were formally asked to do so by their employer).  An alternative to extending the period of notice would be simply to defer the giving of the required period of notice so that it expires on 31 October.
  • Payment in lieu of notice cannot be claimed under the CJRS.
  • The new regulations provide that where an employee is entitled to minimum statutory notice pay they must be paid their pre-furlough rate of pay during statutory notice.  This is a change only for some employees (depending on the type of contract) who, because of the way in which minimum statutory notice pay is calculated using a ‘week’s pay’, would only have been entitled to a reduced pay rate during statutory notice.  Employees on different types of contract may already have been entitled to their full pre-furlough pay rate and the regulations simply confirm that.  For further details see our updated briefing on the CJRS.
  • The new requirement will apply if notice is given after 31 July 2020 (whenever it expires).  Unfortunately the regulations are not clear as to whether it is intended to apply where notice given before 31 July 2020 expires after that date and, if so, whether only in relation to the weeks of notice worked from 31 July.  In any event, it is likely that employers will come under pressure to pay the full pre-furlough rate for all notice weeks regardless of the strict legal requirement. Employers will need to weigh employee relations and reputational issues against the increased cost in paying full pay when deciding their approach.  (The new requirement will not apply retrospectively to employments terminated prior to 31 July 2020.)
  • An employer can continue only to pay a reduced furlough rate throughout notice where an employee on reduced furlough pay is not eligible for minimum statutory notice pay under the relevant legislation.  This could be because:
    • the employee’s contractual notice period exceeds the statutory minimum (one week per year of service up to a maximum of 12 weeks) by at least one week
    • the employee cannot be viewed as “ready and willing to work” were the employer to provide work; there is a (perhaps unattractive) argument that employees who cannot work from home and who are not prevented for medical reasons from attending the worksite, and who have asked to be furloughed, may not be seen as “ready and willing to work”.

The government press release does not acknowledge these exceptions and so, again, employers may well face pressure to pay the full pre-furlough rate in these cases too.

  • In our view, although the drafting could be clearer, the regulations do not have the effect of applying the statutory weekly pay cap (currently £538) to notice pay (as has been suggested by some commentators).  The usual approach – that the cap is not applied to notice pay – should be followed.

Redundancy pay

  • Where the notice of termination expires on or after 31 July, the new regulations mean that any statutory redundancy pay entitlement must be calculated using an employee’s normal pre-furlough wages, rather than any reduced furlough rate. (Employees dismissed for redundancy are entitled to a statutory redundancy payment calculated using age, length of service and weekly pay rate (subject to the statutory weekly pay cap), provided they have two years’ continuous service.  Again this improves the position for some employees (depending on the type of contract) on reduced furlough pay when their employment ended.)
  • Although the regulations do not make it clear, the new rules on statutory redundancy pay will probably also apply where the notice of termination expired before 31 July 2020 but the employer gave less than statutory minimum notice and statutory minimum notice would have expired on or after 31 July (as this would make the “effective date of termination” for statutory purposes on or after 31 July).
  • These rules only apply to statutory redundancy payments and any contractual enhancement will depend on the contractual terms.
  • A grant cannot be claimed under the CJRS to cover redundancy payments.

Job retention bonus

On 31 July 2020 the Government published some additional details of the Job Retention Bonus in addition to those announced by the Chancellor on 8 July 2020.  The initial announcement set out that a one-off (taxable) payment of £1,000 would be available to UK employers for furloughed employees who remain continuously employed through to the end of January 2021 and who earnt above the Lower Earnings Limit (£520 per month) on average from 1 November 2020 to 31 January 2021 and received at least some earnings in each of the three months.

The new details include that the bonus will not be available in respect of employees who have been given notice of termination before 1 February 2021, and an employer will only be able to claim in respect of employees transferred to it under TUPE if the new employer has successfully claimed furlough for them – furlough by the transferor is not sufficient;  the same applies for changes of ownership covered by PAYE business succession rules and certain transfers from a liquidator.  Only earnings recorded through HMRC Real Time Information (RTI) records can count towards the earnings threshold and employers should therefore ensure that their employee records are up to date and that all of their CJRS claims have been accurately submitted and any necessary amendments notified to HMRC.  The policy paper notes that “Employers must keep their payroll up to date and accurate and address all requests from HMRC to provide missing employee data in respect of historic Coronavirus Job Retention Scheme claims. Failure to maintain accurate records may jeopardise an employer’s claim. HMRC will withhold payment of the Job Retention Bonus where it believes there is a risk that Coronavirus Job Retention Scheme claims may have been fraudulently claimed or inflated, until the enquiry is completed.”

Full guidance will be published by the end of September.  Although the sums involved may well be insufficient to save jobs, employers should at least take the availability of this bonus into account when considering whether there are alternatives to redundancies.

UK Covid-19: recent developments on CJRS, SSP, and safe workplaces

CJRS developments

HMRC updated its guidance on the amended Coronavirus Job Retention Scheme on 1 July 2020.  Two changes to note are:

  • Employees should not be placed on furlough for a period simply because they are on holiday for that period – an employer may not place an employee on furlough in order to fund (or part-fund) their holiday pay. However, if an employee is already flexibly-furloughed and then takes holiday, the holiday hours should be counted as ‘furloughed hours’ for the purpose of the claim under the revised CJRS.
  • Employers can now use the online service to delete a claim within 72 hours of submitting it.

One issue which has received considerable media attention since the third Treasury Direction was published (setting out the framework for the revised CJRS in place from 1 July 2020) is whether employers can claim grants in respect of wages paid after notice of redundancy termination has been given to an employee.  Section 2.2 of the Schedule to the Direction (applicable to claims for periods both before and after 1 July 2020) now provides: “Integral to the purpose of CJRS is that the amounts paid to an employer pursuant to a CJRS claim are used by the employer to continue the employment of employees in respect of whom the CJRS claim is made whose employment activities have been adversely affected by the Coronavirus and Coronavirus disease or the measures taken to prevent or limit its further transmission.”  Previously the stated purpose was to provide grants to employers “in respect of them incurring costs of employment in respect of furloughed employees arising from the health, social and economic emergency in the United Kingdom resulting from coronavirus and coronavirus disease“.

Measures taken to prevent or limit transmission presumably include the Government’s shielding and social distancing guidelines and school/childcare closures, seemingly confirming that furlough can be used for clinically extremely vulnerable or vulnerable employees or parents unable to work from home. However, furlough of these and other employees is subject to the requirement that the employer use the grant “to continue the employment” of the relevant employees. This has been seized on by some commentators as suggesting that grants cannot be claimed if the employer would not otherwise have made the individual redundant, nor if the employer is intending to, or has given notice to, make the employee redundant at the end of their furlough, on the basis that the purpose requirement is to ‘continue employment’ more generally and at least beyond the furlough period. If the latter were correct, this would also seemingly exclude claims in respect of employees working out notice of termination for other reasons, including resignation.

One would have expected clearer drafting had this been the intention. Given that the Employee Guidance still refers to an employer being able to make an employee redundant while on furlough or afterwards, it seems more likely that the rationale for the new drafting was simply to make clear that fraudulent claims should not be made for employees who continue to work during furloughed hours, and that the money should only be claimed in order to keep on payroll employees who are not able to work their full hours for the duration of the furlough period. An employee’s employment is “continuing” even while it is under notice of termination. HMRC has confirmed informally that grants can cover employees during their notice periods, and it is to be hoped that this will soon be included in the Guidance. Subject to further developments, this means that grants can be claimed in respect of employees under notice of redundancy but not for pay in lieu of notice (nor statutory redundancy payments – the Guidance already makes this clear). Where notice is given, the level of pay required during that notice period will depend on the terms of the furlough, the contractual notice period and whether the employee has normal working hours with fixed pay – legal advice should be sought.

The Chancellor’s Economic Statement delivered on 8 July 2020 announced that the government will introduce a one-off payment of £1,000 to UK employers for every furloughed employee who remains continuously employed through to the end of January 2021. Employees must earn above the Lower Earnings Limit (£520 per month) on average between the end of the Coronavirus Job Retention Scheme and the end of January 2021. Payments will be made from February 2021. Further detail about the scheme will be announced by the end of July and full guidance published in the Autumn. There is no cap on this measure, which can potentially be applied to all 9 million employees currently on furlough.

Our updated client briefing on the CJRS in place from 1 July 2020 is available here.

Statutory sick pay

  • HMRC has updated its guidance to reflect that statutory sick pay (SSP) paid due to coronavirus can  be claimed for employees who have transferred under TUPE. The usual conditions are that an employer had a PAYE scheme created on or before 28 February and fewer than 250 employees across all PAYE payroll schemes on that date. Transferees who do not meet these conditions can still claim SSP they have themselves paid to transferred employees if the previous employer did meet the conditions. The guidance also now states that an employee who is in a 14-day quarantine required on entering or returning to the UK, and is unable to work during this period, will not qualify for SSP unless they also meet one of the other conditions mentioned in the guidance.
  • The Government has also confirmed that, from 10 July 2020, people arriving from selected destinations will be able to enter England without needing to self-isolate, unless they have been in or transited through non-exempt countries in the preceding 14 days. All passengers, except those on a small list of exemptions, will still be required to provide contact information on arrival in the UK. The government’s expectation is that a number of the exempted countries will also not require arrivals from the UK to self-isolate. The exempted countries and territories will be kept under constant review. The Foreign and Commonwealth Office has also updated its global advisory against ‘all but essential’ international travel to exempt certain destinations that no longer pose an unacceptably high risk of COVID-19, with effect from 4 July 2020.
  • Regulations in force from 6 July now make clear that coronavirus-related SSP entitlement for clinically extremely vulnerable employees will end when the period specified in a shielding notification expires or if a notification expressly ends shielding (this is expected to apply from 31 July 2020), although eligibility will revive if further shielding notifications are made in future. In addition, the regulations provide for SSP to be available to individuals in self-isolation due to a member of their support bubble (ie, in a “linked household”) developing symptoms, in the same way as where a member of their household develops symptoms, and that entitlement based on symptoms ends if and when the relevant individual tests negative for coronavirus.  Note however that the SSP regulations currently cross-refer to another regulatory provision for the definition of “linked household” when those other regulations were revoked in between the SSP regulations being made and brought into force. This is undoubtedly a mistake which hopefully will be rectified – the concept of support bubbles has been retained in guidance on lockdown restrictions in force from 4 July 2020 and hopefully HMRC will still accept SSP rebate claims on this basis. Such individuals may be covered by the test and trace system once the symptomatic person tests positive.

COVID-secure workplace guidance

The twelve work sector guidance documents were updated on 3 July.   Additional recommendations include:

  • steps should be taken to avoid people needing to unduly raise their voices, such as avoiding playing music at a level that makes normal conversation difficult.
  • records of staff contact details should be kept up to date, and employers should keep temporary records for 21 days of staff shift patterns and of contact details of customers and visitors attending a workplace (to help NHS Test and Trace with requests for that data if needed).
  • guidance on outbreaks in the workplace: as part of the employer’s risk assessment, the employer should have an up to date plan in case of an outbreak, nominating a single point of contact to lead on contacting local Public Health teams. A suspected outbreak should be reported if there is more than one case of COVID-19 associated with the workplace. If the local team declares an outbreak, the employer will be asked to record details of symptomatic staff and assist with identifying contacts. Information about the outbreak management process will be provided, covering control measures, staff communications and prevention messaging.

Guidance here temporarily stated that an employer’s provision of testing kits or tests carried out by a third party were to be treated as taxable benefits in kind for the employee, but this plan appears to have been dropped as the text was removed 24 hours later.  The Chancellor subsequently confirmed in a response to the Treasury Select Committee that the government will introduce an exemption from income tax and NIC for coronavirus tests provided by employers to their employees.

An updated version of our return to work client briefing is available here.

 

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.