- Employers claiming for furloughed employees under the Coronavirus Job Retention Scheme (CJRS) need to keep a close eye on deadlines. Monthly deadlines for claims must be now met unless an employer has a ‘reasonable excuse’ for a late claim (see here); the next deadline is 15 February 2021. More imminent is the deadline for applying for claim details to be withheld from publication. HMRC intends to publish a list of the names of employers who have claimed under the scheme since 1 December 2020 on 26 January 2021, and from February HMRC will publish employer names, company numbers and the band of claim value every month. Employers wishing to be excluded from publication (on the ground that this would result in serious risk of violence or intimidation to certain individuals) should apply as soon as possible; the procedure for doing so has now been added to the Guidance.
- The CJRS has now been extended until the end of April 2021. The CIPD and CBI have both argued that the Government should act now to extend the scheme to the end of June 2021 (potentially with reduced levels of wage support from the beginning of May);
- The third national lockdown was announced on 4 January 2021 and is expected to last until at least mid-February; regulations implementing the lockdown expire on 31 March 2021. The Stay at Home guidance provides that people may leave for work only if they cannot ‘reasonably’ work from home and urges employers to take every possible step to facilitate employees working from home; where workplaces are open, COVID-19 secure guidelines should be followed closely and extra consideration given to those people at higher risk.
- CJRS guidance has been amended to make clear that the ability to furlough employees with caring responsibilities includes those who are unable to work all or some of their hours due to caring for children who are at home as a result of school and childcare facilities closing during the lockdown (as well as those caring for a vulnerable individual in their household). The Government has so far resisted calls to give parents and other carers a legal right to be put on furlough. Some large employers have adopted alternative measures to assist working parents, including additional paid leave and increased flexibility over hours.
- With the clinically extremely vulnerable now advised to shield once again (in Tier 4 from 20 December, and nationally from 5 January until 21 February 2021), meaning that they are strongly advised to work from home and not to attend work if they cannot work from home, the guidance also makes express the point that employers do not need to be facing a wider reduction in demand or be closed to be eligible to claim furlough for employees who are clinically extremely vulnerable or at the highest risk of severe illness from coronavirus. Statutory sick pay remains available as an option for employees who are shielding.
- Guidance for pregnant employees published on 23 December 2020 advises greater precautions for those who are 28 weeks pregnant and beyond, or have an underlying health condition, given the increased risk of severe illness and pre-term birth. For many workers this may require working flexibly from home, potentially in a different capacity, or suspension on paid leave.
- Plans have been announced to roll out asymptomatic testing across all areas to focus on key workers unable to work from home. Regulations now provide that payments made by employers to employees between 25 January 2021 and 5 April 2021 (inclusive) to cover the costs of COVID-19 antigen tests are disregarded for NIC purposes; HMRC has confirmed it will exercise its discretion to apply the same approach to payments made earlier in the 2020-21 tax year.
- Due to concerns over the emergence of new variants of coronavirus globally, from 18 January 2021 all travel corridors were removed, requiring all international travellers arriving in England to take a pre-departure test and self-isolate for 10 days (usually subject to the test to release scheme). International travel from certain countries (in South America, Africa and Portugal) is banned save for returning residents, who must self-isolate for the full 10 days (and cannot ‘test to release’) – see here. Exemptions from quarantine for various jobs, including for senior executives bringing significant economic benefit to the UK, have been suspended. These measures are to be reviewed on 15 February 2021.
Employers have had to respond to continual changes to Covid-19-related rules and guidance over the last year, and the last month has been no exception. Of course the biggest change has been the end of the national lockdown in England and the introduction of a revised tier system from 2 December 2020, but employers also need to keep an eye on more minor changes to guidance, summarised below.
- On 13 November 2020 the Treasury published its Direction formally extending the Coronavirus Job Retention Scheme from 1 November 2020 until 31 March 2021 and setting out the conditions for claims up to 31 January 2021. A further direction will be needed in respect of February and March, reflecting the outcome of the Government’s planned review of the level of employer contribution.
- The guidance covering holiday has been amended to expressly provide that an employer can only place employees on furlough if coronavirus is affecting its operations and should not place employees on furlough just because they are going to be on paid leave or the employer usually does less business over the festive period.
- The guidance now makes clear that employers do not need to be facing a wider reduction in demand or be closed to be eligible to claim furlough for employees who are clinically extremely vulnerable or at the highest risk of severe illness from coronavirus.
- A new document sets out the deadlines for claiming in respect of each calendar month (as specified in the Treasury Direction) – the first deadline for November claims is 14 December. Note that November is the last month for which furlough claims can be made in respect of employees serving notice of termination.
- Details have been added to the guidance as to what might amount to a reasonable excuse for an employer’s late submission of a claim. These include the death of a partner or close relative, a serious life-threatening illness, computer failure and service issues with HMRC’s online portal. Although not expressly stated, the same grounds are likely to be relevant in considering late applications to amend a claim. The guidance now provides that employers must contact HMRC first to ask about submitting a late claim.
- The guidance also now sets out the claim band ranges that will be used when HMRC publish employer claim information, and confirm that this information will start to be published from February 2021 covering claims for periods starting on or after 1 December 2020. Also from February, HMRC will include details of claims made for furloughed employees, for claim periods starting on or after 1 December 2020, in their Personal Tax Account on GOV.UK (to facilitate employees in checking whether a fraudulent claim has been made in respect of them).
- There are still discrepancies between the employee guidance, which continues to state that a furlough claim can be made for an employee who is also on statutory maternity leave and pay (to cover contractually enhanced maternity pay) but not for employees receiving Maternity Allowance, and the amended employer guidance. The amendments have confused the issue, seemingly suggesting that maternity leave always has to be ended to place an employee on furlough (even where there are receiving statutory maternity pay rather than Maternity Allowance), but this is probably an error. Employers may wish to clarify this with HMRC if relevant.
Health and safety guidance for employers
- Under the new tiers, the advice for clinically extremely vulnerable individuals is to work from home if possible, either in their existing or an alternative role, but they can attend work if this is not possible – this now applies in Tier 3 as well as the lower tiers. The Government will only advise individuals to shield in the very worst affected areas within Tier 3 and only for a limited period of time; as before, individuals who receive written advice to shield will be entitled to statutory sick pay.
- The Government’s Winter Plan (para 63) notes SAGE advice that typically over one third of contacts are made at work, that these are often of long duration and highly clustered and that homeworking can have a significant effect on reducing transmission if all those who can work from home do so. The Plan encourages employers to enable a greater degree of home working and is clear that anyone who can work from home should do so, although it also recognises that there are specific reasons why attendance in the workplace may be needed, including mental health issues or concerns and/or a need to work on-site physically.
- The Working safely guidance notes have been updated with updated advice on ventilation, face coverings, staff canteens and mental health considerations. The threshold for contacting the local PHE health protection team to report a suspected outbreak has been raised from two to five cases of Covid-19 associated with the workplace within 14 days.
- Public Health England, the HSE and the Faculty of Occupational medicine issued a consensus statement on the best approach to reducing risk for workers including those from ethnic minority groups. This recommended following existing guidance to mitigate the risks for all workers, rather than solely targeting measures at ethnic minority groups. Individual discussions with those at greater risk should take place as part of a wider workplace risk management strategy.
- Medical research has suggested that environmental factors including low temperatures, low air exchange rates and metal surfaces increase the risk of transmission of Covid-19, and that this should be factored into employer risk assessments where relevant.
- Guidance and regulations have been published on a new exemption from the requirement to self-isolate on travelling from a country outside of the UK’s travel corridor. The Business Jobs and Investment Exemption applies to a senior executive (ie, someone who is a multinational, returning, or international executive, as defined) who is undertaking work with a ‘significant economic benefit’ to the UK (ie, more than a 50% chance of creating or preserving at least 50 UK based jobs or resulting in the purchase of goods or services from certain UK-based companies). The exemption will only cover activities which cannot be done remotely or by someone else not self-isolating.
- On 11 December it was announced that from Monday 14 December, the required period of quarantine following international travel, and for contacts of someone who has tested positive, will be reduced from 14 days to 10 days.
- From 15 December, the Test to Release scheme will enable those arriving in the UK to choose to pay for a private Covid-19 test no earlier than 5 full days after leaving a destination not on the travel corridor list; if the result is negative, the individual can stop self-isolating.
- Regulations have been made extending the temporary provisions on calculating a week’s pay for statutory notice and redundancy pay purposes (to avoid disadvantaging an employee who has been furloughed on reduced pay during the calculation reference period) to apply until the end of the extended CJRS on 31 March 2021 (rather than ending on 31 October 2020).
- Regulations have been made to provide that coronavirus tests provided by, or on behalf of, an employer between 8 December 2020 and 5 April 2021 (inclusive) are not taxable benefits in kind.
- HMRC has issued guidance on the penalties that it might charge where an income tax charge has not been notified regarding overpayments made under the CJRS (and certain other financial support schemes).
- The Information Commissioner’s Office has updated its guide on data protection issues associated with testing for Covid-19.
- Wrongful trading liability for directors has been suspended from 26 November 2020 to 30 April 2021; this leaves a gap between 1 October and 25 November when liability was not suspended.
- The Government is consulting on options to reform post-termination non-compete clauses in contracts of employment as part of the effort to support economic recovery post- pandemic – see our blog post here for further details. The impact of the pandemic on the number of hours employers can offer to employees is also the motivation for a second consultation: views are sought on extending the ban on exclusivity clauses in employment contracts (which currently applies to zero hours employees) to cover contracts where workers’ guaranteed weekly income is less than the Lower Earnings Limit.
- The DWP has added a new section to its guidance note, Disability Confident: guide for line managers on employing people with a disability or health condition to cover the challenges presented by the pandemic.
- The UK mass roll-out of the Pfizer-BioNTech vaccine has begun and the Government has published the priority groups for vaccination here. Some employers are starting to think through what their vaccination policy should be once a vaccine is commercially available (although the roll-out details make clear this is unlikely to be for some time). Please do get in touch with Tim Leaver or your usual HSF contact if you would like to discuss this issue further.
Updated 12, 13 November 2020
The guidance on the Coronavirus Job Retention Scheme has now been updated to set out the rules under the scheme extension from 1 November 2020; links to the latest versions are available here. These largely reflect the details already announced and much of the technical detail of the scheme remains unaltered from the August version (with the exception of the core eligibility rules), but there are a few points worth highlighting:
- From December 2020, employers may no longer be able to claim a CJRS grant to cover furlough pay for employees who are under notice of termination. The guidance states that “The government is reviewing whether employers should be eligible to claim for employees serving contractual or statutory notice periods and will change the approach for claim periods starting on or after 1 December 2020, with further guidance published in late November.” Update: on 13 November this was amended to confirm that claims cannot be made for days on or after 1 December 2020 during which a furloughed employee was serving a contractual or statutory notice period, including notices of retirement or resignation.
- The required furlough agreement with employees can be made retrospective to cover the period from 1 November 2020, but must be put in place by this Friday 13 November 2020.
- Claims under the extended scheme can be made from 11 November 2020 and must be submitted by 11.59pm 14 calendar days after the month being claimed for (so any annually paid employees may need to be paid earlier than usual for any time they are on furlough). HMRC may accept a claim made after the relevant deadline if the employer had a reasonable excuse for failing to make a claim in time and then claimed without delay after the excuse no longer applied (but note that HMRC “will not consider reasonable excuses” prior to the claim deadline). A claim can be amended to increase the amount claimed only if this is done within 28 calendar days after the month the claim relates to. If a deadline falls on the weekend then it is extended to the next working day.
- From December 2020, HMRC will publish the names of employers (and the company registration number for companies and Limited Liability Partnerships) who have made claims under the scheme for December onwards. Update: on 13 November the guidance was amended to note that HMRC will also publish an indication of the value of the claim, and will publish further detail on how this will be done in late November. The updated version also confirms that employers’ details will not be published if this would result in a “serious risk of violence or intimidation” to certain individuals (including any employee, director, officer, partner, LLP member, individual employer etc), or any individual living with them” and the employer requests this with supporting evidence. Further details of how to make a request will be available soon.
As previously announced, the guidance confirms that:
- employers will be able to claim 80% of an employee’s usual salary for hours not worked up to a maximum of £2,500 per month (or a prorated amount for flexible furlough); employers will only need to pay for the cost of employer NICs and pension costs for hours not worked;
- employers do not need to have previously claimed for an employee under the previous version of the CJRS;
- employers can claim for employees who were employed on 30 October 2020, as long as they have been included in a PAYE RTI submission to HMRC between 20 March 2020 and 30 October 2020;
- employees included on an RTI submission between 20 March and 23 September 2020 who subsequently stopped working for their employer can also qualify for the scheme if the employer re-employs them; the same applies to employees on fixed term contracts expiring after 23 September 2020 (note the employee guidance wrongly refers to 23 October on this point); Update: on 12 November this was amended to cover employees employed on 23 September 2020, and included in an RTI submission between 20 March and 30 October 2020;
- for employees who were previously eligible for the CJRS, the calculation rules for usual hours and wages remain the same; otherwise the reference periods are updated to the last pay period ending on or before 30 October 2020 for individuals with fixed hours and pay and for those on variable hours averaging is to be done using the period from 6 April 2020 (or any later start date) up to the first day of furlough on or after 1 November 2020;
- the closing date for claims up to and including 31 October remains 30 November 2020.
The Treasury Direction which will provide the legal framework for the extended scheme has not yet been published. It is to be hoped that the inconsistencies between various iterations of the guidance and subsequently published Directions which plagued earlier versions of the scheme can be avoided, given the uncertainty this created for employers. However, the errors sprinkled through the latest updates do not augur well. For example:
- the guidance states that where employees transfer from a previous business under TUPE or PAYE business succession rules, the new employer can claim for these employees provided they were employed by their prior employer on or before 30 October 2020 and transferred to their new employer on or before 1 September 2020. Most new employers who have acquired a business by 1 September 2020 would be able to satisfy the basic eligibility condition without this extra provision (ie, the acquired employees will in most cases have been included on an RTI submission made by 30 October 2020), rendering it pointless. HMRC have since tweeted that it should have referred to acquisitions on or after 1 September 2020. Update: on 12 November the guidance was amended to state that claims can be made provided the employees were transferred on or after 1 September 2020, and were employed by either old or new employer on 30 October 2020 and included by either old or new employer in an RTI submission between 20 March and 30 October 2020.
- the employer guidance still only references the ability to claim for employees serving statutory notice of termination during furlough, whereas the employee version refers to claims during both statutory and contractual notice. In any event, this discrepancy will soon be irrelevant as from 1 December 2020 claims cannot be made for notice periods (see above).
The Chancellor has just announced that the Coronavirus Job Retention Scheme, or ‘furlough’, recently extended until 2 December, will now be extended to the end of March 2021 for all parts of the UK.
The scheme will continue to provide for employees to be paid 80% of their salary for hours not worked (up to a maximum of £2,500 per month) and employers will only be required to cover employers’ pension contributions and National Insurance Contributions for hours not worked (and also pay for any hours actually worked). The CJRS extension will be reviewed in January “to examine whether the economic circumstances are improving enough for employers to be asked to increase contributions”. The Job Support Scheme is therefore postponed.
The Jobs Retention Bonus, the purpose of which was to encourage retention until the end of January, will not now be paid in February and the government will redeploy a retention incentive “at the appropriate time”.
A Factsheet is available here; more detail is included in guidance here. In addition to details already published (see our earlier blog post), these confirm that employees included on an RTI submission on or before 23 September, who subsequently stopped working for their employer, can also qualify for the scheme if the employer re-employs them. Full guidance is to be published on Tuesday 10 November.
Employers should note that the closing date for claims up to and including 31 October remains 30 November 2020.
Updated 3 and 4 November 2020
The Prime Minister’s announcement on Saturday 31 October of a planned new national lockdown from Thursday 5 November to Wednesday 2 December (subject to parliamentary approval) was accompanied by a decision to extend the Coronavirus Job Retention Scheme (CJRS) for a month to cover the lockdown period, and a consequent delay to the start of the less generous Job Support Schemes originally scheduled to apply from today. The legal framework and guidance have yet to be put in place.
The Treasury’s announcement confirms that the scheme extension is to be based on the August version of the CJRS:
- Flexible furlough is permitted – employees can be fully or partially furloughed and will be paid 80% of their salary for hours not worked (up to a maximum of £2,500).
- Employers will only be required to cover employers’ pension contributions and National Insurance Contributions for hours not worked (and also pay for any hours actually worked); employers can choose to top up pay if they wish.
- All employers with a UK bank account and PAYE scheme will be eligible and they do not need to have used the CJRS previously.
- All employees for whom an RTI submission has been made on or before 30 October will be eligible – there is no need for an employee to have been previously furloughed. Update: HMRC have now stated that employees included on an RTI submission on or before 23 September who subsequently stopped working for their employer can also qualify for the scheme if the employer re-employs them.
- Payment will be upfront as before (although payment for the next few days, while the legal terms of the scheme and the administrative systems are updated, will be in arrears).
- There will be no gap in eligibility for support between the previously announced end-date of CJRS and this extension.
Employers who have taken steps to place employees on the Job Support Scheme, including switching furloughed employees onto that scheme, will need to contact those individuals as soon as possible to ensure that they are covered by the extended CJRS instead. Please do get in touch with your usual Herbert Smith Freehills contact for assistance with this.
The new restrictions note that:
- Everyone who can work effectively from home must do so. Where people cannot do so (for instance people who work in critical national infrastructure, construction or manufacturing) they should continue to travel to work/attend their workplace. Public sector employees working in essential services, including education settings, should continue to go into work. Extra consideration should be given to those people at higher risk.
- The clinically vulnerable and those over the age of 60 are urged to be especially careful to follow the rules and minimise contacts with others. Those who are clinically extremely vulnerable should not only minimise their contacts with others, but also not go to work if they are unable to work from home and may be eligible for Statutory Sick Pay or Employment Support Allowance. New guidance for these individuals was published on 4 November here with the changes highlighted here and the Government will write to everybody who is clinically extremely vulnerable to set out detailed advice. Individuals with chronic kidney disease (stage 5), those undergoing dialysis, and adults with Down’s Syndrome have also been added to the list of clinically extremely vulnerable.
The definition of “clinically vulnerable” used in the guidance on the national restrictions originally included all those over 60, rather than 70, for the first time – the tiered restrictions referred to those over 70 as clinically vulnerable. This definition was subsequently amended to revert to 70, but with those over 60 still encouraged to take similar precautions on the basis that they could also be at higher risk of severe illness. This reflects the World Health Organisation’s guidance that COVID-19 is often more severe in people who are older than 60 years. The extension of the advice to those aged 60 and over obviously increases the proportion of the workforce who may have heightened concerns about attending their workplace.
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.
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.
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.
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.
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 here. Amendments 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.