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Scroll to: Job Support Scheme | Employees and self-isolation | Face masks/coverings | Working from home | Other considerations | Summer budget update | Flexible furlough | Furlough | Test and Trace | Getting back to work | EMI Options | Alternatives to redundancy | Restructuring the Workforce / Changing Terms and Conditions | How does holiday work during furlough? | Lockdown Exit Strategy | Pensions | Self-Employed | Places of work | Visa applicants | Tier 2 sponsors | Right to work checks | Health & Safety

Job Support Scheme

WEBINAR: Job Support SchemeLast updated on 23rd October, 2020

On Wednesday 28th October at 10am join our employment law experts online when they will take you through the ins and outs of the new Job Support Scheme, announced in September but significantly updated by the Chancellor on Thursday 22nd October. The guidance to accompany this has been published immediately, so we will be able to provide you with in-depth knowledge you need to help your business decide how to engage with this new scheme as the CJRS comes to an end on 1st November.

Click here to book.

What is the Job Support Scheme (“JSS”)?Last updated on 23rd October, 2020

The scheme comes into force from 1 November 2020 and replaces the existing Coronavirus Job Retention Scheme (known as the ‘furlough’ scheme). It is designed to provide further financial support to organisations which continue to be negatively impacted by COVID-19. The scheme provides grant funding towards a portion of an employee’s usual wages where they are required to work fewer hours than normal. This part of the scheme is also known as JSS Open, with an extended version of the scheme also in place for businesses that have been required to close as a result of the pandemic, known as JSS Closed.

Which organisations are eligible for the Job Support Scheme (“JSS”)?Last updated on 23rd October, 2020

The scheme is open to all small and medium enterprises. Large enterprises (defined as employers with 250 or more employees on 23 September 2020) can also use the JSS if they meet a financial assessment test to demonstrate that their turnover is lower than before they were experiencing difficulties related to COVID-19.

Large businesses must complete a one-off Financial Impact Test to evidence that they qualify for the JSS. For VAT-registered businesses, this will involve a comparison for the sales figures on their VAT returns in the quarter or three months up to 7 November 2020 (depending on whether they file VAT returns monthly or quarterly) against their 2019 figures.

The government is due to publish further guidance for large businesses who are not VAT-registered.

Which employees can be placed on the JSS?Last updated on 22nd October, 2020

Any employees who were on the employer’s payroll on or before 23 September 2020. The employee does not need to have been furloughed previously in order to be placed on the JSS.

How long will the JSS last?Last updated on 23rd October, 2020

The scheme comes into force on 1 November 2020 and will run for an initial period of 6 months. The government has indicated that the terms of the scheme will be reviewed in January 2021 and may be subject to change over this period.

How many hours do employees need to work under the scheme?Last updated on 22nd October, 2020

Employees must work a minimum of 20% of their usual working hours to be eligible for the scheme.

Who pays the employee for the hours worked?Last updated on 22nd October, 2020

The employer must pay the employee for the hours actually worked as normal.

Who pays the employee for the usual hours which are not worked?Last updated on 23rd October, 2020

The employer pays 5% of these hours, with the government paying a further 61.67%. The employee gives up the remaining 33.33% of their pay for these hours.

What will an employee be paid if they work the minimum 20% of their usual hours under the JSS?Last updated on 23rd October, 2020

The employer would pay them for the 20% of hours actually worked. The employee will then receive 66.67% of their pay for the remaining hours not worked – the employer pays 5% of this and the government pays 61.67%. The employee would receive 73% of their normal pay in total in this scenario (subject to the limit on the government contribution).

Is there a limit on the wages that the government will pay under the JSS?Last updated on 23rd October, 2020

Yes, the government funding is limited at £1,541.75 per employee per month. This will ensure that employees who earn £3,125 or less will continue to receive at least 73% of their usual wages.

How do you calculate normal pay under the JSS for employees whose pay varies?Last updated on 23rd October, 2020

The JSS uses a very similar calculation method to the furlough scheme. The employee’s ‘Reference Salary’ for the purposes of JSS claims will be the greater of: (i) the wages earned in the same calendar period in the 2019-20 tax year; (ii) the average wages payable in the 2019-20 tax year; and (iii) the average wages payable from 1 February 2020 (or the employee’s start date, if later) until 23 September 2020.

The types of earnings which can be included as ‘wages’ are set out in the government guidance, as with the furlough scheme.

How do you calculate an employee’s normal hours under the JSS where an employee’s hours vary?Last updated on 23rd October, 2020

The employee’s ‘usual hours’ for the purposes of JSS claims will be the greater of: (i) the hours worked in the same calendar period in the 2019-20 tax year; (ii) the average hours worked in the 2019-20 tax year; and (iii) the average hours worked from 1 February 2020 (or the employee’s start date, if later) until 23 September 2020.

Do we need written agreement from employees to use the JSS?Last updated on 22nd October, 2020

Yes. The arrangements under the JJS amount to a change in terms and conditions and therefore in order to make use of the scheme employers should write to employees, outlining the new arrangements and seeking their agreement. The same applies for those businesses forced to close as a result of local or national restrictions and who want to make use of the extended JSS.

Is there a minimum period of time for which an employee must be on the JSS?Last updated on 22nd October, 2020

Each short-time working arrangement with the employee must last for a period of at least seven days. As with the furlough scheme, employees can be brought on and off the JSS.

Can employees on the JSS be made redundant by their employer?Last updated on 22nd October, 2020

No, employees who are on the JSS cannot be made redundant or given notice of redundancy. This is a key difference to the furlough scheme, where employees could be made redundant and grants could be put towards notice pay. An employer would need to bring an employee off the scheme and cease claiming grants before making them redundant?

What if my business is legally required to close by COVID-19 restrictions and I can’t offer my employees any hours?Last updated on 23rd October, 2020

There is an extended version of the scheme called ‘JSS Closed’ which applies in these scenarios. The Government will pay 66.7% of the employee’s wages up to a limit of £2,083.33; the employer does not need to contribute anything towards their wages, although they will still be responsible for paying employer National Insurance contributions and employer pension contributions.

Does the employer still have to pay Class 1 National Insurance contributions and pension contributions on the wages paid by the government?Last updated on 23rd October, 2020

Yes, the employer remains responsible for paying all employer National Insurance contributions and pension contributions on all wages paid to the employee. These amounts cannot be claimed under the JSS.

How will grants be paid?Last updated on 23rd October, 2020

JSS grants will be claimed through the gov.uk website. They will be paid to businesses in arrears and on a monthly basis. Employers must pay the relevant wages and then reclaim these through the scheme. Employers will be able to submit claims from 8 December 2020.

Employees and self-isolation

Can I require my staff to inform me should their circumstances be such that they need to self-isolate?Last updated on 29th September, 2020

Yes.

Workers (and agency workers) who are aware of the requirement to self-isolate and are due to work during their isolation period at a place other than their designated place (see below) must, as soon as reasonably practicable and in any event before they are next due to start work within the isolation period, tell their employer that they are self-isolating, and set out the start and end dates of their isolation period.

Clear communication to all workers about their obligation to do this is strongly recommended.

Can I be fined for failing to take steps to try to ensure that my staff comply with the requirements to self-isolate?Last updated on 29th September, 2020

Yes.

An employer which is aware that a worker or agency worker is or ought to be self-isolating, should not knowingly allow that worker or agency worker to leave the place that they are self-isolating in (“the designated place”).  To do so without reasonable excuse would amount to an offence which could result in the employer being issued with a fixed penalty notice.

The value of the fixed penalty varies depending on if it is the first or subsequent fixed penalty notice to be issued:

First fixed penalty notice £1,000
Second fixed penalty notice £2,000
Third fixed penalty notice £4,000
Fourth, and any subsequent fixed penalty notice £10,000

If a member of staff does not inform me that they ought to be self-isolating will I still be liable for a fine?Last updated on 29th September, 2020

Potentially no.

If an employer is not put on notice that the circumstances of a worker or agency worker are such that they ought to be self-isolating, by either the worker or agency worker themselves or another member of staff, then there ought to be a reasonable excuse, and potentially, no fixed penalty notice will be issued.

Face masks/coverings

What are the new rules about wearing face masks in the workplace?Last updated on 25th September, 2020

The new rules for wearing face masks/face coverings in the workplace introduced on 23 September 2020 are as follows:

  • Staff in retail, including shops, supermarkets and shopping centres, will now have to wear a face covering
  • Staff in hospitality will now have to wear a face covering
  • Guidance stating that face coverings and visors should be worn in close contact services, such as hairdressers and beauticians, will now become law
  • Staff working on public transport and taxi drivers will continue to be advised to wear face coverings

You can take off your mask if:

  • You who need to eat, drink, or take medication
  • A police officer or other official asks you to

Who is liable to pay the fine for not wearing a face mask at work, the employer or the employee?Last updated on 25th September, 2020

If an employee is required under government guidance to wear a face mask during the course of their employment and there is no applicable exemption, any fine issued would be payable by the employee, not the employer.

Who is exempt from wearing a face mask at work?Last updated on 25th September, 2020

Those individuals who are already exempt from the existing face covering obligations, will continue to be exempt from the new rules. These include:

  • Those unable to put on or wear a face covering because of a physical or mental illness or disability
  • People for whom wearing or removing a face covering will cause severe distress
  • Anyone assisting someone who relies on lip reading to communicate

As an employer, can I force employees to wear face masks at work?Last updated on 25th September, 2020

An employer has a duty of care to its workforce and must take reasonable precautions to protect the health and safety of employees. Employers also have a duty of care towards anyone entering or using their place of business, such as visiting clients or customers.

This means that if an employer reasonably believes that wearing face masks at work is appropriate and necessary, it can issue an instruction to employees to this effect and employees should abide by this as far as possible.

However employers should be cautious about introducing and enforcing a policy across its business which requires its staff to wear face masks as there is the risk of unlawfully discriminating against people who are exempt from wearing face coverings or have legitimate reasons for not doing so. An employer should also consider the duty to make reasonable adjustments for disabled employees and discuss any concerns raised by employees who do not want to or feel unable to wear a mask.

If an employee refuses to wear a face mask at work, can I discipline or dismiss them?Last updated on 25th September, 2020

In appropriate cases, disciplinary action and then dismissal may be fair if an employee refuses to wear a face covering in the workplace. For example, if this is in breach of the government guidance or if  employer has issued a reasonable management instruction to this effect due to an identified health and safety risk.

It is important that employers use a fair and reasonable procedure when deciding whether to discipline and/or dismiss an employee and that its actions does not unlawfully discriminate against employees who have legitimate reasons for not wearing masks, such as those individuals who have health conditions like asthma.

Can an employee in a public facing role refuse to interact with a customer who is not wearing a face mask?Last updated on 25th September, 2020

In some circumstances, visitors and customers are required to wear face coverings, such as those travelling on public transport, shoppers and museum visitors. The government guidance states that:

  • businesses must remind people to wear face coverings where mandated; and
  • premises where face coverings are required should take reasonable steps to promote compliance with the law.

As part of their duty of care to employees and to uphold a relationship of mutual trust and confidence, employers should consider how employees can ensure that visitors and customers comply with the rules and provide their staff with guidance. They must also seek ways to protect their employees both from the risks of those customers not wearing face masks and potential abuse from customers or visitors who decline to wear a face covering. This may include having signs in place requiring customers and visitors to wear a mask and allowing staff to refuse to serve customers if they do not follow the rules.

However, it is ultimately the responsibility of the police, security and public transport officials to remove customers from premises where they are not complying with the rules on face coverings.

The police and Transport for London have been given greater powers by the government to take measures if the public do not comply with the law relating to face coverings without a valid exemption, such as refusing to wear a face covering. This includes issuing fines which have now been increased to £200 for the first offence (and £100 if paid within 14 days). Transport operators can also deny access to their public transport services if a passenger is not wearing a face covering, or direct them to wear one or leave a service.

Working from home

What is the current guidance on working from home?Last updated on 25th September, 2020

The current guidance is that the following workers should work from home:

  • office workers who can work effectively from home
  • any worker who can carry out their normal duties from home (as judged by an employer in consultation with their employee)

Employees who work in the public sector working in essential services, including education, should continue to go into work where necessary.

All other workers who cannot work from home should go to their place of work.

Can I make employees come into work even if they are able to work from home?Last updated on 25th September, 2020

As the guidance now states that employees should work from home if they can do so effectively, if an employee can do their job from home, it would, in theory, be against government guidelines to make employees come into work. It would be difficult to force an employee to come into work and to justify any subsequent disciplinary action if they refused where the employee was complying with the guidance.

However, there is no guidance on the meaning of “effective” in terms of home working and so if workers need to go into the workplace to do their job effectively, it will be acceptable for you to ask that they do so.

If your employees are attending the workplace, you must ensure that you have complied with the government’s guidance on managing the risk of Covid-19 to ensure that the workplace is Covid-secure, including reviewing health and safety risk assessments, accommodating social distancing and providing extra handwashing/hand sanitisation facilities.

Can an employee refuse to come into work if they reasonably believe they’re in imminent danger if they come into work?Last updated on 25th September, 2020

Yes they can. Whether or not their refusal is reasonable will fall on whether the employee’s (not the employer’s) belief was reasonable taking into consideration factors such as the employee’s own health and whether they are at a higher risk of becoming seriously ill if they contract Covid-19 and the steps their employer has out in place to mitigate the danger of contracting Covid-19 at work.

In such circumstances where the employee’s belief is deemed to be reasonable, they will be entitled to stay at home and receive full pay.

If an employee is subsequently dismissed for refusing to attend work in these circumstances, they may be able to bring a claim for unfair dismissal.

Can an employee refuse to come into work if they reasonably believe their commute puts them at risk?Last updated on 25th September, 2020

There is less guidance in respect of whether an employee can refuse to go into the workplace as a result of health and safety concerns about their commute.

An employer’s duties to ensure the health, safety and welfare of its employees only extend to the workplace or where an employee is acting in the course of their employment. This does not include the risks of travelling to and from work by public transport.

As there are various ways in which an employee can travel to work, it will be difficult for them to legitimately refuse to come to work due to their commute.  Employers should discuss any concerns with the employee and seek to find an appropriate resolution. The government has published guidance on safer travel for passengers during the Covid-19 pandemic and employers should encourage flexibility as far as possible, such as allowing employees to travel at off-peak times and staggering workers’ hours.

If an employee refuses to come into work is their absence unauthorised and do I have to pay them?Last updated on 25th September, 2020

This would depend on the reason as to why the employee is refusing to come into work. An unauthorised absence is where an employee fails to attend work and they do not have a statutory or contractual right, or their employer’s permission, to do so. An employer will not be obliged to pay employees their normal pay for periods of unauthorised absence.

There are some absences which may be viewed as authorised which would entitle the employee to their full pay. For instance, employees who believe that they are in serious and imminent danger by coming to work would be entitled to stay at home and receive pay if their belief is deemed reasonable.

An employer should always try to discuss any unauthorised absences with an employee. They may then consider whether to take disciplinary action against the employee.

Other considerations

What can I do as an employer if employees are known to be breaking the local lockdown rules?Last updated on 25th September, 2020

This will depend on the particular facts and the employee’s circumstances but an employee should co-operate with the employer so far as is necessary to enable compliance with any statutory duty or requirement relating to health and safety.

In addition, conduct outside of work can result in an employee’s dismissal if the conduct pertains to the employment relationship. If an employee breaches their lockdown rules and it affects their ability to work, such as it being no longer safe for them to attend work, or the reputation of the employer, these may be grounds for disciplinary action and subsequent dismissal.

If an employee works with vulnerable people who are at high risk of catching coronavirus, can the employer require them to limit their activities outside of work?Last updated on 25th September, 2020

It is unlikely that an employer can place such a requirement on staff without infringing the employee’s privacy. If the employee is acting in accordance with the rules, limiting their activity would likely be considered unreasonable.

If an employee has had a coronavirus test, can we require them to disclose evidence of their test results?Last updated on 25th September, 2020

Obtaining an employee’s Covid-19 test result will amounts to processing personal data for the purposes of the General Data Protection Regulation 2016/679 (GDPR) and information about an employee’s health is a special category of data (sensitive personal data under the Data Processing Act 2018 (DPA)).

In accordance with the GDPR and DPA, there must be lawful grounds for processing such information. Most employers rely on employees’ consent to obtain medical information and process sensitive personal data and if the employee is unwilling to give consent, you will not normally be entitled to the information.

Special category data can be processed lawfully if it is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the data controller. Employers may be able to require an employee to disclose their Covid-19 test if there is a substantial public interest, such as ensuring that the employee self-isolate if they have a positive test. However, there is a risk that this measure could be considered disproportionate particularly if it is enforced on all employees as a blanket measure.

Summer budget update

What was the purpose of the Chancellor’s economic update?Last updated on 8th July, 2020

On Wednesday 8 July as part of a summer ‘mini-budget’, Rishi Sunak delivered the Government’s response to the threat to millions of jobs due to the existing furlough arrangements being wound down from August 2020 until it closes at the end of October 2020. In a wide-ranging speech to Parliament, the Chancellor announced a number of schemes to look to protect jobs beyond October 2020, in particular in certain sectors and for those aged 18-24. As the Government releases further information over the coming days and weeks, we will add to these FAQs.

Will the current furlough scheme still close at the end of October 2020?Last updated on 25th September, 2020

Yes, the Chancellor confirmed that there will not be an extension of the Coronavirus Job Retention Scheme. He acknowledged that there had been calls for the scheme to be extended beyond October 2020 but the Chancellor said that the scheme “could not and should not” continue indefinitely.  However on 23rd September he published information on what is to follow it – the job Support Scheme – more detail elsewhere on this Hub.

Is there going to be any support after October 2020 for employers to try and protect jobs?Last updated on 25th September, 2020

Yes, the Chancellor announced:

  • A new “job retention bonus” for employers to access for furloughed employees subject to certain conditions being met – see below for more information.
  • A “Kickstart scheme” which will directly pay employers to create jobs for any 16-24 year old at risk of long-term unemployment.
  • Incentives for employers to take on apprentices.

Furthermore on 23rd September, he published information about the Job Support Scheme.

What is the “Job Retention Bonus”?Last updated on 25th September, 2020

Whilst the current furlough scheme will still close at the end of October 2020, the Chancellor has announced that he will create a new “job retention bonus”.

There is currently little detail of the scheme, other than if an employer brings back an employee who was furloughed and the employer continues to employ them to 31 January 2021, then the government will pay the employer a £1,000 bonus per employee.

The employee must be paid £520 each month on average (having received some earnings in each month) from the 1 November 2020 through to 31 January 2021 for an employer to be eligible for the scheme. The employee must also not be serving notice.

This is aimed at all employees who have been furloughed and is not dependent on whether they have either already returned to work or are currently working flexibly under the furlough scheme.

Payments will be made from February 2021. Employers will need to have up-to-date RTI records to make the claim. Further details as to the process for making the claim are expected by the end of September.

What is the government’s “Kickstart Scheme”?Last updated on 8th July, 2020

This scheme is specifically aimed at creating jobs for 18-24 year olds who are on Universal Credit and considered most at risk of unemployment because of the economic downturn. The Government has announced that it will pay young people’s wages (equivalent to 100% the National Minimum Wage plus the associated National Insurance contributions and employer minimum automatic enrolment contributions) for up to 6 months, and that this will amount to a grant worth approximately £6,500 per young person.

The jobs that are created must provide a minimum of 25 hours per week and be paid at a minimum of the National Minimum Wage The Chancellor announced that will be no cap on the number of jobs that will be funded under the Kickstart scheme.

What support did the Chancellor announce for employers to be attracted to take on apprentices?Last updated on 8th July, 2020

The Chancellor announced that employers will be given £2,000 to employ apprentices and £1,500 for apprentices over the age of 25 for each apprentice they hire from 1 August 2020 to 31 January 2021. These payments will be in addition to the existing £1,000 payment the Government already provide for new 16-18 year old apprentices.

He also announced that employers would be given £1,000 for taking on trainees in response to the traineeship scheme being extended.

Were any measures sector specific?Last updated on 25th September, 2020

All of the measures announced above are aimed at all employers in the UK and are not sector specific. However, over and above these measures the Chancellor also announced a number of financial measures that he hopes will save jobs in the hospitality industry such as the reduction of VAT on food and drink and the “eat out to help out” scheme which has already taken place. The Job Support Scheme is designed to support businesses who face lower demand due to the pandemic, and so is designed to have an impact on those sectors most badly hit.

Flexible furlough

VIDEO: Flexible furlough – how will it work in practice?Last updated on 17th June, 2020

As of 1 July, employers will be able to bring back to work on a part-time basis any employees who have been previously furloughed, and still be able to claim under the Government’s Coronavirus Job Retention Scheme (CJRS) for the hours the employee doesn’t work.

The ability to flex employees on and off furlough depending on the needs of the business is welcomed by employers. The ability to furlough further employees came to an end on 10 June and there are a number of steps that an employer will need to consider in order to take advantage of the flexible furlough option.

Our employment partners Edward Nuttman and Caroline Shafar take you through the updated guidance and provide you with our view on the practical and legal steps that you will need to take to take advantage of flexible furloughing in your workplace.

The webinar was recorded on Tuesday 16th June.

Read more about this

What is the Flexible Furlough Scheme?Last updated on 16th June, 2020

The Flexible Furlough Scheme, ‘FFS’ an unfortunate acronym, allows employees to work for some of the week and be furloughed for the rest.

When does Flexible Furlough start?Last updated on 25th September, 2020

The Flexible Furlough Scheme was introduced from 1 July 2020 and is due to come to an end on 31 October 2020.

Which employees are eligible for Flexible Furlough?Last updated on 16th June, 2020

From 1 July 2020, you can only furlough an employee if you have previously submitted a claim for them under the Coronavirus Job Retention Scheme for a period of at least 3 consecutive weeks between 1 March and 30 June 2020. So furlough is restricted to those employees who have been furloughed before.

The only exemption is for those currently on statutory leave (such as maternity and paternity leave). If they hadn’t been placed on furlough before 1 July 2020, because they were on statutory leave, then they can also be placed on furlough post 1 July.

Is there a cap on the number of employees on Flexible Furlough?Last updated on 16th June, 2020

Be careful, there is now a cap on the number of employees you can have on furlough at one time.

The number of employees you can claim for in any claim period starting from 1 July cannot exceed the maximum number of employees you claimed for under any claim ending by 30 June 2020. So this cap is going to be specific to each employer.

It may catch out, in particular, employers who had been rotating employees on furlough.

How do I set the hours that my employees will work under the Flexible Furlough Scheme?Last updated on 16th June, 2020

Employers and employees can decide the split of the hours of work and the hours of furlough. There is no maximum or minimum requirements. You can change the arrangement, by agreement, from time to time.

When claiming for employees who are flexibly furloughed, you should not claim until you are sure of the exact hours they will work during the claim period.

Do you need a new written agreement for Flexible Furlough?Last updated on 16th June, 2020

You should already have a written furlough agreement with your furloughed employees, but if you move them to flexible furlough then you need a new agreement that confirms the new furlough arrangement.

So, you’ll need to speak to your employees and confirm the hours of work with them in writing (or reach a collective agreement with a recognised Trade Union.

As before, an employee does not need to provide a written response. But the agreement needs to be documented in writing.

What records do I need to keep for Flexible Furlough?Last updated on 16th June, 2020

You will need to keep a copy of the written agreement for a period of 5 years. If the hours of work change from that which you initially agree, you are likely to need something new in writing to cover each separate arrangement.

You should also keep records of how many hours your employees work and how many hours they are furloughed (i.e. not working). You must keep these records for 6 years, together with a record of the amount claimed, your claim reference number and your calculations.

What is the minimum period for Flexible Furlough?Last updated on 25th September, 2020

It has now changed. Instead of being 3 weeks, it is now technically any period. However, 7 days is the minimum claim period you can now make.

What is the claim period for Flexible Furlough?Last updated on 16th June, 2020

Employers will have until 31 July to make any claims for claim periods up to 30 June. That is the end of the old scheme.

From 1 July, claim periods must start and end within the same calendar month and must be for at least 7 days unless you are claiming for the first few days or the last few days in a month.

You can only claim for a period of fewer than 7 days if the period you are claiming for includes either the first or last day of the calendar month, and you have already claimed for the period ending immediately before it.

For example, if an employee is furloughed for 7 days spanning a month. You can claim the last 3 in one month, and 4 from the next.

The crucial point is that you cannot make claims that cross calendar months.

The first time that you can make a claim for days in July is 1 July. You cannot claim for periods in July before this point.

What amount do you claim under the Flexible Furlough Scheme?Last updated on 16th June, 2020

You will claim a pro rata’d amount of 80% of salary, based on the proportion of hours not worked out of the employee’s normal working hours (their “usual” hours).

There are 2 ways to calculate an employee’s usual hours, depending on whether they have fixed or variable hours/pay:

  • For those with fixed hours/pay, you take the number of hours worked in the pay period before 19 March 2020.
  • For those with variable hours/pay, you take the higher of:
  1. the average number of hours worked in the tax year 2019 to 2020 or
  2. the corresponding calendar period in the tax year 2019 to 2020.

If employees are paid per task or piece of work done, you should work out the usual hours for these employees in the same way as for other employees who work variable hours, if possible.

When you calculate the usual hours, you should include any hours of leave for which they were paid their full contracted rate (such as annual leave) and any hours worked as overtime (but only if the pay for those hours was not discretionary).

Can you still have people on furlough leave full-time after 1 July 2020?Last updated on 16th June, 2020

Yes. You can continue to fully furlough employees until 31 October 2020 (but from 1 August you will need to contribute to the cost). If on full-time furlough, employees continue not to be able to undertake any work for you. As before, they can undertake training, or volunteer or work for another employer or organisation (if contractually allowed).

What are the holiday rules for someone on Flexible Furlough?Last updated on 8th July, 2020

Employees continue to accrue leave during furlough (whether they are on full furlough or flexible furlough) and can take leave during periods of Flexible Furlough (so long as you top the grant up to full pay for any days taken as holiday).

Government guidance has been updated to state that “Employees should not be placed on furlough for a period simply because they are on holiday for that period.” If a period of furlough happens to coincide with an employee’s holiday then you should ensure that there are business grounds to support furlough being used in that instance so that it isn’t just being used as a means to fund holiday utilisation.

Can an employee still do volunteer work when on Flexible Furlough?Last updated on 16th June, 2020

An employee on Flexible Furlough can take part in volunteer work during hours which you record your employee as being on Flexible Furlough as long as it is for another employer or organisation.

To be clear, if on Flexible Furlough and you’re claiming the grant for them, then they cannot work.

As people work part-time and ease back into the business, this is likely going to be a key risk area. You need very clear lines as to working time and non-working time. No replying to emails on days off.

Can an employee still do training when on Flexible Furlough?Last updated on 16th June, 2020

Employees on Flexible Furlough can engage in training during hours which you record your employee as being on furlough, as long as in undertaking the training the employee does not provide services to, or generate revenue for, or on behalf of their organisation or a linked or associated organisation.

Where training is undertaken by furloughed employees during hours which you record your employee as being on furlough, at the request of their employer, they are entitled to be paid at least their appropriate national minimum wage for this time.

Can employees on Flexible Furlough work as union or non-union representatives or as pension trustees?Last updated on 16th June, 2020

Employees who are union or non-union representatives may undertake duties and activities for the purpose of individual or collective representation of employees or other workers. However in doing this, they must not provide services to or generate revenue for, or on behalf of your organisation or a linked or associated organisation.

Employees who are pension scheme trustees or trustee directors of a corporate trustee may also undertake trustee duties in relation to the pension scheme. However, a professional, independent pension scheme trustee who has been furloughed by the independent trustee company cannot undertake trustee work that would provide services to or generate revenue for, or on behalf of, the independent trustee company or any organisation linked or associated with that independent trustee company during hours when they are recorded as being on furlough.

Can employees who are shielding be placed on Flexible Furlough?Last updated on 16th June, 2020

Employees who are unable to work because they are shielding in line with public health guidance (or need to stay home with someone who is shielding) can be furloughed after 1 July 2020, as long as you have previously submitted a claim for them in relation to a furlough period of at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June.

Can employees with caring responsibilities be placed on Flexible Furlough?Last updated on 16th June, 2020

Employees who are unable to work because they have caring responsibilities resulting from the coronavirus can continue to be furloughed. For example, employees that need to look after children can be furloughed, as you have previously submitted a claim for them in relation to a furlough period of at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June.

As more people return to work, there is an increased chance of more parents having childcare issues until Schools are fully open. However, they can’t be placed on furlough unless they had been on it before. So it would likely be unpaid leave, unless the government amends the scheme to grant an exemption.

Can employees who are self-isolating or on sick leave be placed on Flexible Furlough?Last updated on 16th June, 2020

Employers had the ability to furlough extremely vulnerable employees who needed to shield.

If your employee is on sick leave or self-isolating as a result of Coronavirus, including as a result of track and trace, they’ll be able to get Statutory Sick Pay, subject to other eligibility conditions applying.

There is no special exemption for them, so they would need to meet the usual requirements to be placed on Flexible Furlough after 1 July 2020. i.e. They had to have been placed on furlough for at least 3 weeks before 1 July. Otherwise, they could not be furloughed.

Can you placed employees who TUPE transfer to you on Flexible Furlough?Last updated on 16th June, 2020

A new employer may claim under the scheme in respect of the employees of a previous business transferred after 10 June 2020 as long as:

  • the TUPE or PAYE business succession rules apply to the change in ownership
  • the employees being claimed have previously had a claim submitted for them by their prior employer in relation to a furlough period of at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June

In these circumstances, the maximum number of employees that the new employer can claim for will be the total of both:

  • the maximum number of employees the new employer claimed for in any one claim ending on or before 30 June
  • the number of employees that are being transferred to the new employer which have had a claim submitted for them in relation to a furlough period of at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June. This is subject the maximum cap the previous employer was subject to.

A new employer is also eligible to claim under scheme in respect of the employees associated with a transfer of a business after 10 June 2020 from the liquidator of a company in compulsory liquidation where:

  • TUPE would have applied were it not for the company being in compulsory liquidation
  • the employees being claimed for have been furloughed and a had a claim submitted for them by their prior employer in relation to a period of at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June

In these circumstances, the maximum number of employees that the new employer can claim for will be the total of both:

  • the maximum number of employees the new employer claimed for in any one claim ending on or before 30 June and
  • the number of employees that are being transferred to the new employer which have had a claim submitted for them by their prior employer in relation to a furlough period of at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June. This is subject to the maximum cap the previous employer was subject to.

Furlough

How the furlough scheme changed from 1 July – what is flexible furlough?Last updated on 25th September, 2020

From 1 July 2020 the furlough scheme has been operating more flexibly.

The key changes from 1 July 2020 were:

  • All furloughed employees are subject to the new flexible furlough rules and the new basis for calculating claims
  • Furloughed employees can be brought back to work on a part-time basis for any amount of time and can work any work pattern
  • Employers can claim for the hours not worked compared the hours the person would normally have worked in that period
  • There must be a new written furlough agreement in place to record the agreement with the furloughed employee to return to work part-time
  • The new agreement (including a collective agreement) must be made before any period of flexible furlough begins but it may be varied at a later stage if necessary. The agreement must be incorporated into the employee’s contract of employment, either expressly or impliedly
  • Employers must keep a record of this agreement until at least 30 June 2025, and they must also keep a record of the hours the furlough employee worked and the hours that they were furloughed
  • Employees can be furloughed from 1 July 2020 for any amount of time and more than once
  • However, if you re-furloughed an employee after 10 June but before 1 July 2020, they had to be furloughed for an initial period of three consecutive weeks
  • Claims for payments under the scheme must not cross calendar months so if you are claiming for the initial three week period of a re-furloughed employee who was furloughed on 12 June for example, you must submit separate claims for the dates in June and July
  • Although flexible furlough agreements can last any length of time, you should only submit a claim to HMRC once a week.

What is the last date staff can be furloughed? Is there any exception for those returning from statutory maternity or paternity leave?Last updated on 15th June, 2020

The furlough scheme was closed to new entrants from 10 June. That was the last date an employer could have furloughed a member of staff for the first time, to enable them to complete the minimum 3 week furlough period by 30 June.

On June 8th, the Government announced a special exemption to this cut off for those returning from statutory leave. Parents on statutory maternity and paternity leave who return to work in the coming months will still be eligible for furlough even after the 10th June cut-off date.

Can employees who have previously been furloughed be put back on furlough after 10 June?Last updated on 25th September, 2020

Yes. From 1 July 2020 you can only claim for staff who had been previously furloughed under the scheme for at least three consecutive weeks between 1 March and 30 June 2020. For the minimum three week period to have taken place before 30 June, the last time a new entrant could be furloughed was 10 June 2020.

The employee can they can then be flexibly furloughed for any period.

From 1 July, staff can be re-furloughed for any length of time after this.

Please see the Flexible Furlough FAQs for more details.

Can I use flexible furlough to utilise an employee’s holiday entitlement?Last updated on 25th September, 2020

Employees are generally permitted to take holidays during furlough. However, Government guidance has been updated to state that “Employees should not be placed on furlough for a period simply because they are on holiday for that period.” If a period of furlough happens to coincide with an employee’s holiday then you should ensure that there are business grounds to support furlough being used in that instance so that it isn’t just being used as a means to fund holiday utilisation.

Am I obliged to offer staff flexible furlough?Last updated on 15th June, 2020

No, there is no obligation on employers to offer a flexible furlough arrangement to staff. Operationally, flexible furlough may not be appropriate for your business and equally, returning on a part-time basis may not be suitable for individuals already furloughed for various reasons. Concerns about returning to work part-time or at all should be considered on a case-by-case basis.

What is the added cost to business of furloughing staff from 1 August?Last updated on 25th September, 2020

From 1 August there will be a cost to businesses of furloughing staff, which will gradually increase until the scheme closes at the end of August as follows.

  • Employers are no longer be able to reclaim employer national insurance and pension contributions from 1 August.
  • From 1 September employers required to contribute 10% of wages, with the Government contributing 70%.
  • From 1 October, the employer contribution increases to 20% and the Government will contribute 60%.
  • 31 October: scheme closes.

Employees will continue to receive 80% of their current wages, up to £2,500 a month.

How long will the scheme be in place?Last updated on 25th September, 2020

The Chancellor has announced the scheme will continue until 31st October 2020. Changes to the way in which the furlough scheme operates will commenced on 1 July in order to taper off the scheme.

VIDEO EXPLAINER: The ten most frequently asked questions about furloughLast updated on 27th April, 2020

Consultant Peter Byrne and associate Hollie Ball discuss some of the most frequently asked questions we have received about furlough in this 20 minute video.  This was originally recorded on 16th April, and therefore incorporates the updated guidance issued by the Government on Wednesday 15th April, but does not refer to Rishi Sunak extending the current period of the scheme by a month to the end of June.

On the 22nd April, we have incorporated an updated answer to our response on holidays, since there was important additional guidance issued by the Government the preceding weekend.

Questions answered and their timings are:

  1. Does an employer need to obtain consent to furlough employees? (1.20)
  2. Can an employee demand that they are furloughed? (2.28)
  3. Can you furlough an employee who is on sick leave or shielding? (4.00)
  4. At what date does an employee have to be employed at in order to be considered for furlough? (5.46)
  5. Can you rotate employee’s on and off furlough? (8.07)
  6. What is included in the 80% funded under the scheme? (9.21)
  7. How do you calculate wages for staff with variable pay? (11.28)
  8. What can an employee do while on furlough? (13.25)
  9. How will an employer make a claim under the scheme? (16.49)
  10. What is the position with holidays during furlough? (19.00)

To watch the video, please click the link below.

Read more about this

Can I rotate staff who are furloughed? Can I put someone on furlough, bring them back when I need to, and then put them back on furlough, as demand requires? And practically how can we deal with this for those who want to rotate?Last updated on 15th June, 2020

You can rotate staff on furlough or flexible furlough as long as you have furloughed all new entrants by 10 June for three consecutive weeks, and that those you are seeking to re-furlough have been furloughed for three consecutive weeks any time between 1 March and 30 June 2020.

Prior to 1 July, the minimum period of furlough is three weeks. After 1 July flexible furlough agreements can last any amount of time and you can enter into a flexible furlough agreement more than once. Although you can flexibly furlough for any length of time after 1 July, you must claim for a minimum period of 7 calendar days unless otherwise stated.

Practically how to deal with those who want to rotate
One option is to make it clear in the letter agreeing to being furloughed that there is an open ended right to rotate and to be able to take them off furlough and bring them back and put them back on, subject to them being furloughed for a minimum of a three week block (up to 1 July).

So the employer reserves the ability to rotate by building into the agreement, but only exercises it if it is permissible.

Rotation is quite key for employers who need to make a temporary reduction to their overheads but want to retain the skills base to call back when work picks up. Having furloughed staff return on a part-time basis from 1 July may reduce the need to rotate.

It also helps in the employer being able to show that they are treating the workforce as fairly as possible and everyone is taking a reduction. Get in touch if you need help preparing the documentation for furlough that will permit rotation or flexible furlough.

Read more about flexible furlough and how this can be used as part of the CJRS.

 

Are there any limitations on who can be furloughed?Last updated on 15th June, 2020

You cannot furlough someone for the first time after 10 June 2020. You can re-furlough anyone as long as they have been furloughed for three consecutive weeks at any time between 1 March and 30 June 2020.

Employees on any type of employment contract including full-time, part-time, agency, flexible or zero hours and foreign nationals who are eligible to work in the UK on any visa can be furloughed subject to the following excluded categories:

  • Anyone who has been on unpaid leave except those who have been placed on unpaid leave since 28 February 2020. Employees who were on unpaid leave prior to 28 February 2020 can only be furloughed on the subsidised wage after the date it was agreed that they would return from unpaid leave
  • Anyone who was not hired before 19 March 2020 and not notified to HMRC on an RTI submission on or before 19 March 2020
  • Employees who are working but on reduced hours or for reduced pay
  • Employees currently receiving SSP (see FAQ on SSP and self-isolation below)
  • Public sector employees
  • Employees of businesses or organisations in receipt of public funding for staff costs (except for those who are not primarily funded by the government and whose staff cannot be redeployed to assist with the Covid-19 response)

Can contractors with public sector engagements and who are in scope (deemed employment) for IR35 purposes be furloughed?Last updated on 15th June, 2020

Contractors working for public sector organisations who are deemed employees for IR35 purposes may be eligible to be furloughed (subject to the deadline of 10 June for new entrants and the minimum period of furlough between 1 March and 30 June for those you wish to re-furlough). In this scenario the agreement to furlough would be made between the contractor’s personal service company (PSC) and the fee payer (usually the agency). The parties would agree that the contractor will carry out no work for the public sector organisation while furloughed and the fee payer would apply for the grant.

Can apprentices be furloughed?Last updated on 20th April, 2020

The government has stated that the scheme will apply to apprentices and that they can continue to train whilst they are furloughed. However you must pay at least the Apprenticeship Minimum Wage, National Living Wage or National Minimum Wage for all periods of training during furlough leave, taking into account the rate increases from 1 April 2020. This means that you will be responsible for any shortfall in the amount claimed under the scheme and the appropriate minimum wage.

We recommend that you get in touch to discuss any queries on furloughing apprentices.

Should my apprentice continue their training during the coronavirus outbreak, even if they’re furloughed?Last updated on 7th April, 2020

The Government maintains that apprenticeships will be an important part in the economic recovery post-lockdown and therefore ESFA is encouraging training under apprenticeships to continue, even where an apprentice is furloughed, provided that the training does not provide services to or generate income for their employer. E-learning is being encouraged as a method of delivery.

Should I pay my apprentice to continue training?Last updated on 20th April, 2020

Employers should ensure that apprentices are paid at least the Apprenticeship Minimum Wage, National Living Wage or National Minimum Wage (AMW/NLW//NMW) as appropriate (and taking into account the new rates from 1 April 2020) for training carried out where their wage received through the Coronavirus Job Retention Scheme does not cover this.

How do I make arrangements for end point assessments for apprentices?Last updated on 7th April, 2020

Arrangements for end point assessments can be modified or rescheduled. End point assessment organisations should engage with External Quality Assurance Providers to agree arrangements for the end point assessments where face-to-face assessments are being modified. Where rescheduling is required due to Covid-19 issues and there is a specified time limit for the ESA post gateway, a further pause of 12 weeks is allowable. This should be recorded by the training provider in the ILR.

Can the apprentice take a break or pause in learning due to coronavirus?Last updated on 7th April, 2020

A break or pause in learning can be initiated where the interruption to learning due to Covid-19 is greater than four weeks. This must be reported as a formal break in learning. In such circumstance the funding to the training provider will be suspended for the duration of the break. Previously, the rules only allowed an apprentice to initiate this break in learning but this has been expanded to give employers and training providers the right to initiate this. Training providers should continue with their monthly IRL submissions to the ESFA. During breaks in apprenticeships it is not necessary for the apprentice to comply with the minimum of 20% on the job training requirement but this will resume when the break ends.

What happens if an apprentice is made redundant?Last updated on 7th April, 2020

Where an apprentice is made redundant the training provider should support the apprentice in seeking alternative employment within a 12 week period. ESFA will support this process. Where an apprentice is placed on unpaid leave or the nature of their employment no longer supports their apprenticeship, it should be considered whether a break in learning would be appropriate.

An employer who wishes to make an apprentice redundant should seek advice on the process to be followed for this.

Will funding audits continue during the coronavirus pandemic?Last updated on 7th April, 2020

Funding audits are being paused and no new audits will be commenced during the lockdown period.

Will HM Treasury continue to collect my apprenticeship levy payments?Last updated on 7th April, 2020

HM Treasury have no current plans to pause the collection of apprenticeship levy payments from employers, therefore levy-paying employers must continue to make payments. There is also no plan to extend the 24 month period allowed to spend levy funds.

What should I do if my apprentice is due to finish their fixed-term contract during the pandemic?Last updated on 7th April, 2020

Employers who have apprentices on fixed-term contracts due to end during the pandemic should discuss arrangements with the apprentices including whether an extension to the contract can be offered to allow them to complete their apprenticeship.

Are there any other useful resources about apprenticeships during the coronavirus outbreak?Last updated on 25th September, 2020

On 6 April 2020 the Government published further guidance to clarify the position with apprentices during the Covid-19 outbreak. The full guidance is available from here https://www.gov.uk/government/publications/coronavirus-covid-19-apprenticeship-programme-response/coronavirus-covid-19-guidance-for-apprentices-employers-training-providers-end-point-assessment-organisations-and-external-quality-assurance-pro

The guidance includes details of the measures implemented by the Education and Skills Funding Agency (ESFA) in order to provide flexibility in delivering apprenticeships in current circumstances. This includes breaks in learnings, delayed end point assessments and alternative arrangements for end point assessments. These measures apply immediately and until further notice.

There are a number of FAQs within the Government guidance which deal with common queries. The guidance contains some technical provisions and we recommend that you take advice if you are furloughing or making apprentices redundant. If you have any additional queries on the practicalities of implementing the ESFA measures please get in touch.

Further guidance changes to apprenticeships due to coronavirus can be found here.

Can directors, partners or those working under umbrella companies be furloughed?Last updated on 5th May, 2020

Yes. The updated government guidance has confirmed that office holders (including company directors), salaried members of Limited Liability Partnerships (LLPs) individuals working under umbrella companies (including agency workers) and individuals who are classified as ‘workers’ rather than employees can be furloughed but only to the extent that they are paid via PAYE. Therefore director’s fees can be claimed (subject to the cap) but dividends are excluded, as are bonuses and commission payments.

Those who are paid annual are now eligible to make a claim, subject to meeting the remaining requirements. This includes being notified to HMRC on an RTI submission on or before 19 March 2020 which relates to a payment of earnings in the 19/20 tax year.

The decision to furlough a director or office holder should be adopted as a formal decision of the company or LLP which should be minuted and notified in writing.

Company directors can only undertake work to fulfil a duty or other obligation arising from an Act of Parliament relating to the filing of company accounts or provision of other information relating to the administration of the director’s company while furloughed and they cannot carry out work that would generate revenue or perform services to or on behalf of their company. This also applies to salaried individuals who are directors of their own personal service company (PSC).

Can agency workers be furloughed?Last updated on 6th April, 2020

Yes, if they are paid via PAYE. This includes agency workers engaged under umbrella companies.

The furlough should be agreed between the agency (the employer) and the worker and documented in accordance with the guidance. It is recommended that the decision to furlough is discussed with end user clients. Just like other employees, agency workers cannot perform work through or on behalf of the agency while furloughed. This includes work for the client.

For agency staff working under umbrella companies, it is for the umbrella company and the agency worker to agree on furloughing the worker.

Can employees on fixed-term contracts be furloughed?Last updated on 24th April, 2020

Yes. Their contracts can be renewed or extended during the furlough period without breaking the terms of the scheme. An employee on a fixed term contract can be re-employed, furloughed and claimed for if either:

  • Their contract expired after 28 February 2020 and an RTI payment submission for the employee was notified to HMRC on or before 28 February 2020
  • Their contract expired after 19 March 2020 and an RTI payment submission for the employee was notified to HMRC on or before 19 March 2020

If the employee’s fixed term contract has not already expired, it can be extended, or renewed. You can claim for them if an RTI payment submission for the employee was notified to HMRC on or before 19 March 2020.

Employees that started and ended the same contract between 28 February 2020 and 19 March 2020 will not qualify for this scheme. This is not specific to employees on fixed-term contracts, the same would apply to employees on all other contracts.

Can you furlough a suspended employee?Last updated on 15th June, 2020

Yes. You should be able to furlough a suspended employee subject to all other eligibility requirements however we recommend that you take advice on this before doing so.

Can an employee on family related leave be furloughed?Last updated on 5th May, 2020

Yes, but your claim will be limited to any enhanced contractual payments you make to employees who qualify for the relevant family related pay.

All maternity and parental rights remain in force for anyone in this category who is furloughed. However you may need to calculate average weekly pay differently if the employee was furloughed and then started family related leave on or after 25 April 2020.

Furlough pay cannot be claimed for the period that an employee is receiving Maternity Allowance. An employee can agree to accept furlough pay but they must contact Jobcentre Plus to stop their Maternity Allowance payments for this period.

What rate of pay applies to an employee returning from statutory leave who is furloughed?Last updated on 20th April, 2020

Statutory leave includes family related leave, sick leave or parental bereavement leave. Claims for furloughed individuals returning from statutory leave should be based on their salary, before tax, and not the pay they received while on statutory leave.

Similarly, claims for furloughed employees returning from a period of unpaid leave on sabbatical should be based on their pay they would have had on paid leave.

Can furloughed employees carry out work for another business during furlough?Last updated on 6th April, 2020

Yes, if there is a contractual right to do so. Furloughed employees who start work with another employer during this time must inform HMRC that they have another job.

Can employees volunteer if they have been furloughed?Last updated on 31st March, 2020

Yes. The Government has confirmed that those on furlough will also be permitted to volunteer to help the NHS during the coronavirus outbreak without risking their pay.

Can furloughed workers still continue with union or non-union representation duties?Last updated on 5th May, 2020

Yes, they can continue to undertake duties or activities for representative purposes. This includes individual or collective representation of their colleagues. They must not carry out any actual work or generate revenue for their employer or a linked or associated organisation.

How do you manage employees who aren’t furloughed and are unhappy that they still have to work?Last updated on 15th June, 2020

Although there is no formal selection process that must be followed in order to furlough staff, the basis for selecting who will be furloughed should be explained to all relevant staff. Basing this on work levels, required skills or whether work can in fact be carried out efficiently from home will help this process. Staff can be invited to volunteer to be furloughed (up to 10 June for those who have not been furloughed before) or re-furloughed. Any requests can be considered on a case by case basis. It may be that a particular skill set is required which may result in an employee’s request being refused.

Can those on sick leave or who have been advised to self-isolate be furloughed?Last updated on 15th June, 2020

The updated guidance has confirmed that employees on sick leave or who are self-isolating can be furloughed (subject to the deadline of 10 June for new entrants and the minimum period of furlough between 1 March and 30 June for those you wish to re-furlough). Employers should not furlough employees in this category just because of their absence, but they can furlough if there are genuine business reasons for doing so and other eligibility requirements are met. In these cases the employees should no longer receive sick pay and they would be classified as furloughed.

The guidance has specified that those on long term sick leave or who are ‘shielding’ for 12 weeks in line with public health guidance can also be furloughed. But it is important that you clarify that they do fall in the category of extremely vulnerable (https://www.gov.uk/government/publications/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19). It is up to employers to decide whether to furlough employees who are shielding or on long-term sick leave.

You can claim from the CJRS and also for the two week SSP rebate scheme (see below) for the same employee but not for the same period of time. Therefore if you have a furloughed employee who becomes ill and you subsequently move them to SSP you cannot claim the furlough rate of pay. If you keep the employee on the furloughed rate you can continue to claim this under CJRS.

Coronavirus Statutory Sick Pay Rebate SchemeLast updated on 25th September, 2020

The Coronavirus Statutory Sick Pay Rebate Scheme will repay employers the SSP paid to current or former employees and will be available from 26 May 2020. See here.

The scheme covers all types of employment contracts and employers will be eligible to claim if they:

  • Are claiming for an employee who is eligible for sick pay due to coronavirus
  • Had a payroll scheme that was created and started on or before 28 February 2020
  • Had fewer than 250 employees on 28 February 2020

The repayment will cover up to 2 weeks starting from the first qualifying day of sickness, if an employee is unable to work because they either:

  • have coronavirus (COVID-19) symptoms
  • cannot work because they are self-isolating because someone they live with has symptoms
  • are shielding and have a letter from the NHS or a GP telling them to stay at home for at least 12 weeks
  • have been notified by the NHS or public health bodies that they’ve come into contact with someone with coronavirus
  • they have been notified by the NHS to self-isolate before surgery

You can claim for periods of sickness starting on or after:

  • 13 March 2020 – if your employee had coronavirus or the symptoms or is self-isolating because someone they live with has symptoms; or
  • 16 April 2020 – if your employee was shielding because of coronavirus.
  • 28 May 2020 – if your employee has been notified by the NHS or public health bodies that they’ve come into contact with someone with coronavirus
  • 26 August 2020 – if your employee has been notified by the NHS to self-isolate before surgery

Employees do not have to give you a doctor’s fit note for you to make a claim. But you can ask them to give you either:

  • an isolation note from NHS 111 – if they are self-isolating and cannot work because of coronavirus
  • the NHS or GP letter telling them to stay at home for at least 12 weeks because they’re at high risk of severe illness from coronavirus
  • the evidence from the NHS or public health body requiring them to self-isolate

You must keep the following records in relation to a claim you make under the scheme for three years:

  • The reason for the employee’s absence
  • Details of each period the employee could not work, including start and end dates
  • Details of the SSP qualifying days when the employee could not work
  • National insurance numbers for each employee you have paid SSP to

You’ll need to print or save your state aid declaration (from your claim summary) and keep this until 31 December 2024.

Can employees transferring to a new employer be furloughed by the new employer?Last updated on 15th June, 2020

Yes, if they have transferred to the new employer after 28 February either under TUPE or if the ownership of the business changes from one legal entity to another and the new owner takes responsibility for the pay records.

Similarly, where a group of companies have multiple PAYE schemes and there is a transfer of all employees from these schemes into a new consolidated PAYE scheme after 28 February 2020, the new scheme will be eligible to furlough those employees and claim the grants available under the CJRS.

A new employer will also be able to claim under the scheme for transferring employees after 10 June 2020 if their previous employer had submitted claims for those employees for a period of at least three consecutive weeks under furlough any time between 1 March and 30 June 2020. In these circumstances the maximum number of employees the new employer can claim for will include the number of employees transferred which the previous employer had successfully claimed for between 1 March and 30 June 2020.

Do I have to continue to pay furloughed staff while furloughed? Can I wait until I receive the money from the government?Last updated on 5th May, 2020

To qualify for a grant under the scheme you must pay your furloughed staff the wages you are claiming for. Failure to do so may result in a HMRC investigation and/or claims from furloughed staff for unlawful deductions from wages and possibly constructive dismissal claims.

Normal benefits including non-monetary benefits should continue during furlough unless the individual has agreed in writing to reduce or remove a benefit during this time.

Employers are expected to apply for one or more of the financial support schemes available to be able to continue to pay staff.

Can I ask furloughed staff to agree to accept less than 80% of their normal pay?Last updated on 14th April, 2020

The guidance is clear that furloughed staff must receive no less than 80% of their reference pay (up to the monthly cap of £2500).

Employers cannot enter into any transaction with the worker which reduces the wages below this amount. This includes any administration charge, fees or other costs in connection with the employment.

How will normal salary be calculated for those with no normal working hours, such as zero hours workers?Last updated on 16th April, 2020

For those with variable pay, if the employee has been employed for a full 12 months before the period claimed for you, can take the higher of:

  • The same month’s earnings in the previous year; or
  • Average monthly earnings from the 2019/20 tax year.

For those who have been employed for less than one year you can use the average of their monthly earnings since they began their employment until the date they were furloughed.

If they have been employed for less than a month, work out a pro rata for their earnings so far, and claim for 80%.

What payments can be included in the claim for a grant?Last updated on 20th April, 2020

You can claim for regular payments you are obliged to pay staff such as non-discretionary overtime, non-discretionary fees, non-discretionary commission and piece-time payments. Overtime in this context is referred to as ‘past overtime’ in the updated guidance which would suggest that you should use the variable pay calculation (see FAQ above) for those who regularly carry out overtime.

Are benefits to be included in the claim for a grant?Last updated on 14th April, 2020

You cannot include the following payments in a claim:

  • Discretionary bonus or commission payments
  • Tips
  • Non-cash payments
  • Non-monetary benefits including taxable benefits in kind
  • Salary sacrifice benefits that reduce an employee’s pay (however HMRC has agreed that such arrangements can be stopped by agreement if due to COVID-19 and the contract is changed)

The updated guidance has confirmed that all of the grant claimed should be paid to the employee in the form of money and that none of the grant is to the used to pay for the provision of benefits or a salary sacrifice scheme.

What is the Government’s Coronavirus Job Retention Scheme?Last updated on 25th September, 2020

All employers in the UK are eligible to participate in the scheme. The purpose of the scheme is to allow employers to claim back employment costs if they have furloughed employees arising from the coronavirus crisis. Importantly this means the scheme is not limited to cases where the employee would otherwise have been made redundant.

Key points:

  • HMRC will reimburse employers for 80% of wage costs, up to a cap of £2,500 per month, plus the associated employer’s national insurance contributions and minimum automatic enrolment employer pension contributions on that reduced wage. After much speculation, the Chancellor has confirmed that the 80% furloughed rate of pay will continue while the scheme is in place.
  • From 1 July the scheme changed so that part time furlough is allowed and to gradually increase employer’s contributions to the furlough costs. The scheme now also allows employees to return to work part time being on furlough for the remainder. See flexible furlough above for more information.
  • The employer can agree to pay the employee more than it will be reimbursed but it cannot reclaim the additional amount or any other costs associated with the additional amount.
  • The workers covered by the scheme are those who have been “furloughed” which is a leave of absence.
  • Workers must be told about and agree to this change of status (see below).
  • Employers have to continue to pay the furloughed workers and the Government will reimburse the employer.
  • HMRC is administering the scheme and it has been extended until the end of October 2020.
  • Those who left employment and are re-employed and subsequently furloughed by agreement are eligible, even if you do not re-employ them until after 19th March (the new cut-off date for eligibility). In these circumstances the employee must have been on your payroll on or before 28th February 2020 and HMRC must have received an RTI submission notifying of payment for that employee on or before 28th February 2020. You cannot furlough anyone for the first time after 10 June 2020 – the scheme is closed to new entrants from that date.
  • Payments may be withheld if claims are based on inaccurate or dishonest information, or are found to be fraudulent. HMRC has put in place an online hotline for employees and the general public to report suspected fraudulent claims.
  • The Government has made alternative help available for employers to continue to pay employees while the scheme is set up.

How does Coronavirus Job Retention Scheme operate?Last updated on 29th June, 2020

  • Certain workers will become “furloughed workers”.
  • Furloughed workers cannot carry out any work for their employer while designated as furloughed, or a linked or associated organisation but they can do voluntary work as long as they are not providing services for or generating revenue for the employer or a linked or associated organisation.
  • Up to 30 June, a furloughed worker cannot carry out any work for the employer – from 1 July, they can be furloughed part time and work the rest of the time.
  • The furlough period begins when the employee stops work, not when agreement is reached.
  • If furloughed employees are expected to do online training while furloughed they must receive the National Living Wage/National Minimum Wage for the time spent training.
  • Workers must be told of and agree to this change in writing. This written agreement must be kept for five years as part of the scheme. The guidance has confirmed that collective agreement reached between an employer and a trade union on furloughing staff is acceptable for the purposes of making a claim under the scheme.
  • However it should also be noted that this is a change in status and pay (if pay is not being topped up) and therefore subject to the usual employment law rules on changing terms and conditions.
  • Changes to the contract must be made by agreement with the worker and the government guidance is clear that to be eligible for the subsidy employers must document their communication with the employee on being furloughed.
  • You must confirm in writing that an employee has been furloughed, but that the employee does not need to provide a written response. Please note that this is for the purposes of making a claim under the scheme. Any reduction in pay must be agreed in writing under normal employment law principles and failure to do so may result in Employment Tribunal claims. You should not rely on a term in the employment contract to effect this change. We can advise you on how to document this properly.
  • Employers must also keep a record of the agreement until at least 30 June 2025.
  • If employers have collective bargaining arrangements in place, they must agree this change with the union in the usual way.
  • Collective consultation obligations may be triggered if there are 20 or more employees that are proposed to be dismissed and re-engaged in order to effect the change to terms to be furloughed. You should take advice if you think this may apply.

How do I access the Coronavirus Job Retention Scheme?Last updated on 25th September, 2020

The scheme has now been closed to new entrants. In order to utilise the scheme now you must have furloughed the employee by 10 June 2020.

The scheme is being administered by HMRC under a new online portal that has been set up. It applies to businesses, charities, recruitment agencies, individuals who employ a nanny, administrators (where there is a reasonable likelihood of re-hiring the workers) and public authorities.

All employers with a UK payroll can apply as long as you have:

  • Created and started a PAYE payroll scheme on or before 28 February 2020
  • Enrolled for PAYE online (which can take up to 10 days)
  • A UK bank account.

To make a claim you will need:

  • The number of employees being furloughed
  • The start and end date of the claim
  • The name and National Insurance Numbers for each furloughed employee
  • Your employer PAYE reference number
  • To be registered for PAYE online
  • The Self-Assessment Unique Taxpayer Reference, Corporation Tax Unique Taxpayer Reference or Company Registration Number as appropriate for your entity
  • Your UK bank account details and sort code
  • Your name and contact number
  • Your organisation’s registered name
  • Your organisation’s billing address
  • The full amounts you are claiming for including:
    • Employee wages
    • Employer national insurance contributions (up to 31 July)
    • Employer minimum pension contributions (up to 31 July)

For claims for those who are flexibly furloughed you will also need:

  • the number of usual hours the employee would work during the claim period
  • the hours the employee has worked or will work during this period
  • you will also need to keep a record of the number of furloughed hours that the employee has or will be furloughed for.

You will need the above information ready before you access the system to make a claim. You will also need to have calculated the amounts claimed in advance as the application needs to be completed in one session. You can currently save one draft of the application and it must be completed within 7 days of starting it.

The Government has issued a step-by-step guide for employers who wish to make a claim under the scheme which can be found using the link below. It contains useful information about calculating the payments claimed. You will need to register for a Government Gateway ID and password if you do not yet have one in order to access the portal.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/880099/Coronavirus_Job_Retention_Scheme_step_by_step_guide_for_employers.pdf

If you use an agent who is authorised to act for you for PAYE purposes, they will be able to make a claim on your behalf. If you use a file only agent (who files your RTI return but doesn’t act for you on any other matters) they won’t be authorised to make a claim for you and you will need to make the claim yourself. A file only agent can assist you in obtaining the information required to make a claim (listed above). If an agent makes a claim on your behalf you will need to tell them which bank account you would like the grant to be paid into.

For claims for fewer than 100 employees you will need to input the details separately for each employee. If claiming for more than 100 employees you can upload a file with the information instead. The file should include the following information for each furloughed employee: name, National Insurance number, claim period and claim amount, payroll/employee number (optional). You will also need to include details of hours normally worked, actual hours worked and hours furloughed for those who are flexibly furloughed.

The need to demonstrate the impact of coronavirus on your business is not one of the criteria listed above about who can make a claim, so the government does not appear to intend to set a specific test to determine if a business is “severely impacted by coronavirus”. You are not required to explain the impact of Coronavirus on your business when submitting your claim.

HMRC will retain the right to audit any claim retrospectively. You must keep records for 6 years including:

  • the amount claimed and claim period for each employee
  • the claim reference number
  • you calculations for each claim
  • details of hours usually worked and hours actually worked for flexibly furloughed employees.

You must tell your employees that you have made a claim under the scheme, and you must continue to pay their wages during this time.

Test and Trace

VIDEO: Test and trace – what this means to employersLast updated on 23rd June, 2020

On Monday 22nd June our experts in employment, data protection, and health and safety came together to take you through the important Test and trace scheme. They explained:

  • the essence of the scheme
  • your responsibilities as an employer
  • protecting your employees in a Covid-safe workplace
  • how to deal with the data protection aspects of information sharing, and
  • how to minimise the risks of a potentially significant impact on your business.

‘Test and trace’ is a fundamental plank of the Government’s strategy, and it is important employers are fully aware of their obligations, but also the risks to your business continuity which poor workplace planning could result in.

Read more about this

What is the NHS coronavirus Test and Trace scheme and how does it work?Last updated on 23rd June, 2020

The NHS Test and Trace service is operated by the NHS in England to track and help prevent the spread of COVID-19. Where an individual displays symptoms of coronavirus they can be tested to determine whether or not they have the disease. Those with the disease will then be contacted by NHS contact tracers and asked who they have come into close contract with.
Close contact is defined as:

  • Face to face (within 1 metre)
  • Spent more than 15 minutes within 2 metres of another person
  • Travelled in a car or on a plane with another person

The contact tracer will then contact those people with whom the individual has come into close contact and tell them to self-isolate for 14 days.

What are the responsibilities of employers under the coronavirus Test and Trace scheme?Last updated on 23rd June, 2020

The Government has produced workplace guidance for employers, setting out 2 key messages for employers:

  • Continue to make workplaces as safe as possible; and
  • Encourage workers to heed any notifications to self-isolate and to support them while they are require to isolate

Government guidance can be accessed here: How it works (an overview) and Workplace guidance for employers.

What should an employer do when an employee has been told to self-isolate under the coronavirus Test and Trace scheme?Last updated on 23rd June, 2020

  • Do not require them to work
  • Continue to communicate with and support them
  • Allow them to work from home, is there alternative work for them to do if they can’t do their work from home
  • Offer SSP or allow them to take holiday if they want to.

How should an employer handle personal information in relation to NHS Test and Trace?Last updated on 23rd June, 2020

Employers will be collecting and sharing health information. Health information is sensitive and higher data protection standards apply. Here are a few key pointers.

  • Update privacy notices to cover the new collection and sharing of employees’ information and provide these to the workforce. Be transparent and fair.
  • Identify the legal basis and condition for use of this information and put any required paperwork in place. The ICO guidance will help. For some conditions such as the employment condition, an Appropriate Policy Document (APD) will be required. The ICO has an APD template.
  • Only use the information for the purpose of managing the workforce during the pandemic.
  • Only collect or share information if it’s necessary – if it’s a targeted and proportionate way of achieving your purpose.
  • Make sure any health information collected and shared is accurate – there may be serious consequences if it’s not.
  • Work out how long the information must be kept for. Keep a record of that period and act on it at the appropriate time.
  • Security is very important – there may be malicious actors trying to trick employers and employees. Make sure employees know how to identify a genuine NHS Test and Trace contact. Keep the information secure. Use the ICO’s data sharing checklists** and keep a record of the disclosures made and why. Control external disclosures – only certain authorised members of staff should make them.
  • Make sure individuals can still exercise their data protection rights – that’s also very important. Keep data protection records up-to-date and ensure any exports of personal information outside the UK are compliant.
  • Before introducing employer-led testing like taking temperatures, thermal imaging or other potentially intrusive tests, work out if a data protection impact assessment (DPIA) is required. It will be if the intended processing is ‘high risk’. If it is, then carry out a full DPIA. It will help address the issues systematically and mitigate risks.
  • All this demonstrates ‘accountability’ – it shows affected individuals and the ICO that the employer is complying with data protection requirements.

If you need further help, please visit the ICO’s data protection and coronavirus information hub or ask our data protection team.

** Please note that this link is to the ICO’s existing checklists and data sharing code of practice. We will update the link to the ICO’s new checklists after they are published.

Can you ask employees for evidence of the requirement to self-isolate under the Test and Trace scheme?Last updated on 23rd June, 2020

Yes, you can ask to see any information/documentation sent to an employee informing them that they should self-isolate.

Can you require an employee to tell their employer whether they have been tested for coronavirus/the results of that test?Last updated on 23rd June, 2020

Yes, this is very likely to amount to a reasonable management instruction which is put in place for public health reasons. Employers should make it clear to their employees that this is something they are required to do and that if they fail to do so this may lead to disciplinary action.

If there is an outbreak of coronavirus in a workplace – will it be RIDDOR reportable?Last updated on 23rd June, 2020

The reporting requirements relating to cases of, or deaths from, COVID-19 under RIDDOR apply only to occupational exposure, that is, as a result of a person’s work.

You should only make a report under RIDDOR when one of the following circumstances applies:

  • an accident or incident at work has, or could have, led to the release or escape of coronavirus (SARS-CoV-2). This must be reported as a dangerous occurrence
  • a person at work (a worker) has been diagnosed as having COVID-19 attributed to an occupational exposure to coronavirus. This must be reported as a case of disease
  • a worker dies as a result of occupational exposure to coronavirus. This must be reported as a work-related death due to exposure to a biological agent

Getting back to work

VIDEO: Tools for Leaders – Supporting the workforce and bringing about an effective return to workLast updated on 22nd May, 2020

During this period of “getting back to business” (or even if business has not actually stopped), it is a critical success factor for business leaders to have the confidence of the workforce when caring for their physical and mental wellbeing and when difficult decisions may have to be made.

Employment law specialist Caroline Shafar and business leadership consultant Jo Grobbelaar discuss what leaders need to do to have the most positive impact on their workforce, exploring effective communication, the importance of empathy, motivation, self and social awareness and provide tips on how to be a visible leader.

This is the first in a series of discussions with a range of experts providing insight into the impact that Covid-19 has had on the mental health and wellbeing of the workforce and looking at tools for business to provide an effective and safe environment in these challenging times.

Caroline is a partner in the employment team at Ward Hadaway, and has a particular interest in the psychological impact of people management approaches. For more information about Caroline or to get in touch, please click here.

Jo is a highly experienced strategic business consultant, coach and facilitator.  She has been supporting numerous businesses manage their workforces through the disruption of this pandemic.  She will be sharing some of these experiences during this video conversation. For more information about Jo, click here to visit her website.

Read more about this

VIDEO EXPLAINER: Flexible Working Requests – a new trend post lockdown?Last updated on 22nd May, 2020

Employment partner Gillian Chinhengo and associate Hollie Ball talk through the process and risks involved in dealing with flexible working requests.

Read more about this

Introduction – How am I going to get people back into the workplace?Last updated on 6th May, 2020

As we move to look at re-opening businesses and getting people back into the workplace there is work to be done by employers, firstly in planning how they are going to do this, and secondly, communicating those plans to staff. The only way in which businesses are going to be able to manage the transition back to some form of normality is by speaking to their staff and re-assuring them about the measures that will be put in place to safeguard their health and safety in order to enable them to return. Any successful return to work will need to based on carefully thought out plans and providing re-assurances to employees that necessary action is being taken.

Employers will be focusing on:

  • How do I get my workforce back safely, and
  • How do I give my workforce the confidence to return.

VIDEO EXPLAINER: Workplace after lockdownLast updated on 6th May, 2020

On 1st May, health and safety expert Tristan-Meears White and data security expert Phil Tompkins hosted this webinar on the workplace after lockdown, where they:

  • Shared insights into what might be done in the workplace to manage and mitigate the risk of Covid-19 infection
  • Considered the practicalities of how these can be achieved
  • Reviewed how other countries are addressing these issues and what we might learn
  • Thought about the context of the legal duties owed by a business to its employees, and
  • Considered some of the privacy issues which arise as a result of some of these initiatives.
Read more about this

VIDEO EXPLAINER: Returning to work – managing people back into the ‘new’ workplaceLast updated on 6th May, 2020

This free Getting back to business webinar was held at 10am on Tuesday 5th May. On this video, employment partner Gillian Chinhengo and health and safety expert Tristan Meears-White:

  • Discussed how you should approach re-opening in terms of employees
  • Reviewed your responsibilities when it comes to a safe workplace environment
  • Explored where you can ask, and where you can insist
  • Considered your options where employees refuse to abide with your advice
Read more about this

What is the most important thing employers should do from a health and safety perspective?Last updated on 12th May, 2020

Conduct risk assessments! Your RA must cover every foreseeable risk arising from a return to the workplace, including the impact of reduced staff levels and any operational/administrative changes necessary to ensure social distancing.

Appropriate steps should be taken to manage and mitigate identified risks. Where this is not possible, businesses need to decide whether certain activities are necessary for the business to operate or if they can be temporarily put on hold.
Keep a close eye on the comprehensive Government guidance: https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19

In particular focus on social distancing and workplace health measures. This guidance will evolve over time and you will need to be sure that your organisation is sticking to it AND reviewing and updating its risk assessment.

Who should come back to work and when?Last updated on 12th May, 2020

This is critical. The guidance remains clear – IF YOU CAN WORK FROM HOME YOU SHOULD CONTINUE TO DO SO. Bringing people back into work unnecessarily is a big mistake.

Think about how many employees should physically return to the workplace – the fewer the people on site, the lower the risk AND the less pressure on public transport.

Employers will need to be very careful to recognise workers in vulnerable groups or who develop or live in a household with someone who develops symptoms of Covid-19 – again, look at government guidelines. You should understand that this will mean a higher number of staff absences and consider how this might be managed.

Look to keep smaller teams of workers together, minimise physical meetings and if you MUST have them, keep them short and under 15 minutes. Be imaginative – use online platforms like Teams and Zoom wherever you can.

How can workers get to work safely?Last updated on 12th May, 2020

The Government’s guidance says walk, cycle or drive to work and avoid public transport if you can. Businesses will need to support workers in adopting alternative travel methods to reduce exposure to the virus. You could consider staggering start and finish times for shifts to reduce commuting during peak hours, or support cycling with secure storage facilities and a drying room.

How important is social distancing when planning your workplace?Last updated on 12th May, 2020

It is absolutely critical to creating a safe workplace and to making workers feel secure.

This could include floor markings every 2m (as we’ve seen in grocery stores), stopping or limiting/staggering access to communal or common areas such as toilets and kitchens, rearranging workstations to maintain a 2 metre distance or, where this is not possible (for example in manufacturing facilities or production lines), erecting physical barriers and avoiding face to face working, encouraging the use of stairs and discouraging lift-use, designing a one-way system for entry and exit and looking at aircon/heating systems to see if any modifications are possible to prevent the spread of airborne particles. If you can increase ventilation in your workplace, it will help reduce risk.

The government has published detailed social distancing guidance for workplaces across sectors including manufacturing, retail, offices, construction and transport; it has also promised to continue to add to this.

Is there anything else I should consider from a health and safety perspective?Last updated on 12th May, 2020

Increased hygiene measures should be introduced to limit the spread of infection. Increase the frequency of cleaning, particularly higher risk contact points such as door handles. Avoid the use and sharing of hardcopy in favour of electronic documents; avoid sharing of tools and work equipment; increase the availability of handwashing facilities and hand sanitisers; issue anti-bacterial wipes and tissues to staff, and remind everyone to maintain good personal hygiene practices, including regular hand washing. Prominent and repeat signage will be vital in reminding workers of these steps they can take to protect themselves.

PPE – e.g. disposable gloves and face masks – are not currently legally required in the UK, but especially where social distancing might not be possible, it may be necessary to make appropriate PPE available to staff. If so, you will need to make sure there is enough available train everyone so it used properly and provide for safe disposal of used items.

MOST IMPORTANTLY – communicate with your people; invite their input and suggestions and act on them. Communication and participation in the process of a safe return to work are going to be crucial to its’ success.
Monitor for illness: train managers how to spot the symptoms of COVID-19 and have a clear process if someone is potentially infected. Continue to remind staff to only come into work if they are well and not experiencing any symptoms. A number of businesses are planning on using testing and screening methods, such as temperature checks. Remember, these steps create data privacy considerations which you will need to consider.

Do not forget existing health and safety obligations, such as maintaining sufficient numbers of fire marshals and first aiders on-site. Employers should also be aware that the Health and Safety Executive must be notified under RIDDOR of any workplace incidents that lead to exposure to COVID-19 and any cases where there is “reasonable evidence” that it was caused by exposure in the workplace. Be aware that workers are being encouraged to report to HSE failures of their employers to keep them safe from the threat of the virus.

How much notice do I need to give people to return to work?Last updated on 6th May, 2020

There is no minimum period of notice you are required to give employees of their return, but from a good HR practice point of view you should be speaking to your staff and letting them know what the plan is; giving people a reasonable amount of notice of return will allow them to prepare both practically and psychologically.

Do I need to treat everyone the same and bring them all back at the same time?Last updated on 6th May, 2020

No. You should always treat employees consistently and fairly, but this doesn’t mean treating them all the same, or applying the same requirements. For those employees who have been homeworking and doing so without any problems, then they should be allowed to continue to do so.

We would anticipate that the vast majority, if not all, businesses will be approaching the return on a phased basis, which inevitably means some employees returning to work sooner than others. In reality then, you aren’t treating everyone the same, but try to be fair and consistent; you need to do what works best from a business perspective, but can you rotate people, require them to come in at different times etc. Where people perceive that the planned return is being worked out fairly they are far more likely to buy into this, which will help avoid resentments building up between colleagues.

Is there anything I need to put in place for their return? What are my responsibilities?Last updated on 6th May, 2020

The basics of health and safety law requires that employers take “all reasonably practicable steps” to ensure workers’ safety and that a suitable and sufficient assessment of risk is undertaken. It is the individual assessment of Covid-19 risk in each workplace that will be central. Employers will be required to conduct a robust risk assessment and then, following the hierarchy of controls, put robust processes and safeguards in place to address those risks.

UK government guidance and HSE advice is continually evolving, which in practice means that any risk assessment will need to be reviewed very regularly as that guidance develops. There is flexibility for individual businesses within the overall government framework and there will need to be a process of evaluation to ensure that the measures in place continue to meet the requirements.

The starting point of avoid, eliminate and control means looking at individuals continuing to work from home where possible (the fewer the number of people back in the workplace the lower the risk), and if not look at risk management, which leads to administrative controls – i.e. changing work practices before ending up at PPE. PPE is generally seen as control of last resort but in practice – facemasks, disposable gloves and constant prompts to wash hands for example.

In terms of changing working practices, employers should be thinking about:

  • the workspace and how this is laid layout
  • how do we make sure it is kept clean and hygienic
  • how do we keep people apart
  • how can we use toilets, canteens or other shared spaces/facilities safely
  • how do we promote and enable higher levels of workplace hygiene
  • if we are going to rely on PPE – can we get it, and is it suitable
  • what about limiting customer interactions
  • will there be enough first aiders on site
  • can we manage fire safety, deliveries etc
  • what about higher risk workers
  • should work tools and equipment be allocated on an individual basis to employees.

These decisions need to be recorded and clearly communicated to staff members.

Can I dismiss an employee who refuses to return to work?Last updated on 6th May, 2020

Potentially. The first question is why the person is not able to return, as their individual circumstances will be very relevant in terms of whether they can be safely dismissed.

Employers should ask themselves 2 questions in this situation:

  1. Have I done everything I am required to do in order to make the workplace safe for the individual to return; and
  2. Is what the employee saying reasonable?

If the answer to question 1. is no then a dismissal is unlikely to be fair. However, even if the answer to question 1. is yes, then there is still question 2. to address. If the employee has reasonable grounds as to why they are unable to return to work, e.g. due to health issues, childcare responsibilities etc then the dismissal is unlikely to be fair. It is only if you can answer yes to question 1. and no to question 2. that you can have some confidence in the potential safety of the dismissal.

Dismissals based on objections to returning to work on health and safety grounds will very often be risky and are highly fact specific, therefore please contact one of the employment team for further advice prior to dismissal.

Can we require employees who have been shielding to return to work at the end of the 12 week shielding period?Last updated on 25th September, 2020

The Government introduced shielding in the peak of the pandemic. Current advice is that shielding is not required. However, those who have been shielding are likely to be the most vulnerable and will likely be nervous about a return to work. They may also be disabled under the Equality Act 2010. You should therefore consider any concerns that are expressed and take action to mitigate any risks. For example, it may be possible to keep these employees on furlough until the scheme runs out or they may be able to work from home. If you would like to discuss any specific scenarios then please contact one of the team.

What about employees who say they cannot return to work due to childcare issues?Last updated on 25th September, 2020

Employers will need to be flexible with employees who are unable to return to work at present due to childcare difficulties. While schools have reopened, a period of isolation may result in employees having to keep children off school/nursery and therefore have childcare issues. Some employees will be able to manage this with their partner and extended family, whereas others will not. Where an employee simply cannot make any other arrangements to care for their children in the short term then they will be unable to return to work until that situation changes. Any dismissals on the basis that someone is unable to return to work as a result of lack of childcare are likely to be unfair, at least in the short term where such employees may well be able to demonstrate that they had no options available to them.

Can we require employees to have their temperatures taken on the way in to work, and is this something we should be doing?Last updated on 25th September, 2020

If such testing is regarded as a “reasonably practicable step” which has been identified as an appropriate control following a risk assessment then it is something you can do.

Although you can’t physically force someone to have something intrusive done, this is very likely to be a reasonable management instruction and therefore if someone refuses to have this done as a condition of entry into the work place then disciplinary action may follow.

Where this is something that is required of employees, employers should be letting their staff know that this is one of a number of measures that are being introduced into the workplace for their own safety. If the employer can explain, in advance of the return, why temperature checks need to be taken, what the consequences of the results will be- i.e. will they be sent home if over a certain temperature, whether this data will be stored (and if the sole purpose is to determine whether or not they are fit to attend work on a particular day then why are they being stored), and the fact that temperature checks are a requirement of entry to company premises for everyone, then there shouldn’t be significant resistance to this measure.

Large scale temperature checks have in some businesses become part of the “new normal” working environment.

What can I do if an employee refuses to work due to lack of PPE?Last updated on 6th May, 2020

Put simply, if it is a requirement of a particular role that PPE is worn, then this should be provided to the employee. If an employer dismissed an employee for refusal to carry out their role due to lack of PPE then this is likely to be an automatically unfair health and safety dismissal.

Furthermore, anyone who is subject to a detriment as a result of raising a health and safety concern, e.g. someone in this situation who refuses to work due to lack of PPE and is sent home without pay, will also have a potentially valid claim in the Employment Tribunal for that detriment, even if they are not dismissed.

Can I dismiss someone who refuses to wear PPE?Last updated on 6th May, 2020

Potentially, yes. If someone refuses to follow the health and safety measures that have been put in place to protect them, colleagues and possibly their customers, including (where appropriate) the use of PPE then this is a disciplinary issue and should be dealt with as such. Repeated failure to comply with the requirement to follow these measures, or a one off significant failure, may be sufficient to justify dismissal, depending on the circumstances.

EMI Options

Does an employee who is furloughed lose his/her benefits under an EMI share option?Last updated on 9th July, 2020

One of the key legislative requirements of EMI is that the employee satisfies the working time requirement, which is that they work at least 25 hours per week in the company or, if less, 75% of the employee’s total working time. If the working time requirement ceases to be met, then there is a “disqualifying event”. That means that the tax benefits of EMI ceases. It may also mean that the option lapses, but that depends on the specific terms of the option.

An employee who has been furloughed is by definition no longer working 25 hours/week and therefore on the face of it, there is a disqualifying event. However, the Government has tabled an amendment to the Finance Bill currently going through Parliament providing in effect that time not worked because an employee has been furloughed counts as working time, both for determining whether the working time requirement is met initially and whether there is a disqualifying event. Provided this amendment is enacted, this should address the issue.

Alternatives to redundancy

Introduction to alternatives to redundancyLast updated on 25th September, 2020

We hope that all organisations will come out of lockdown successfully. However, the current economic crisis means that many organisations will face very difficult trading conditions.

Employment costs are one of, if not the, largest cost to your organisation. These costs will have an effect on your financial well-being – and many organisations are now considering how to reduce employment costs. That said, your workforce is also your most important asset and as we get back to business, you will need your workforce to run the organisation, produce your goods, deliver your services and deal with your customers.

As a result, many organisations are facing a very difficult situation – how to reduce or flex the cost of the workforce whilst also maintaining an ability to service customers. This difficulty is enhanced by the uncertainty of when the pandemic will be controlled and the threat of lockdowns end.

VIDEO EXPLAINER: Alternatives to redundancy – how to flex your workforce after furloughLast updated on 6th May, 2020

This free Getting back to business webinar was held on Wednesday 6th May. On this video, employment partner Paul Scope and associate Flora Mewies looked at your options if you need to flex your employee resource or reduce cost without reducing headcount. This may apply across the business or to particular functions. They discussed a range of options when the furlough scheme comes to an end, including: lay off, short time working, reduced hours, reduced pay and other ways to be flexible.

They also discussed the pros and cons of each option, and cover what you will need to undertake with each of these routes.

Read more about this

How do I reduce employment costs? Are we talking about redundancy?Last updated on 25th September, 2020

The obvious option to reduce the cost of your workforce is redundancy. However, that also reduces the number of employees and therefore your capacity.

What other options are there to reduce employment costs?Last updated on 25th September, 2020

If you don’t want to make redundancies, or if you can’t reduce employee resource, either in a particular department or across the workforce as a whole, then you need to think about alternatives to redundancy.

Equally, you may want to flex the resource you have available to you – without making drastic changes.  For example you may want to consider:

  • unpaid leave and sabbaticals
  • retraining and redeploying
  • forcing annual leave
  • flexible working
  • capability issues
  • lay off
  • short time working
  • reductions in salary
  • reductions in working hours
  • changing to shift working

Can I force ways of reducing employment costs onto the workforce?Last updated on 25th September, 2020

Some of these can be implemented by you, some need agreement or consultation and some depend on the wording of contracts. We’ll explain more in relation to each option.

Employer furlough schemesLast updated on 6th May, 2020

Furlough means temporary leave of absence. There is nothing to stop an employer seeking to agree a temporary leave of absence – with or without pay – with its workforce.

This could not be forced on an employee without significant risk. Without agreement, this would need fair selection and consultation – more on that later.

Unpaid leave and sabbaticalsLast updated on 6th May, 2020

Employees will be reluctant to take unpaid leave or a sabbatical but when faced with the alternative prospect of redundancy may give it some serious consideration. This would remove the cost of that employee from the employer’s business for an agreed period of time. This is an option which can be offered to employees but again, imposing it without agreement creates significant risk.

Retraining and redeployingLast updated on 6th May, 2020

If the business has areas requiring an increased workforce whilst others require a reduced workforce, staff can be retrained and redeployed across the organisation or even across a wider group of companies. This will not reduce the wage bill but will avoid the need for redundancies. Making fundamental changes to an employee’s role and duties will require their agreement following a fair selection and consultation process.

Forcing annual leaveLast updated on 6th May, 2020

Employers have a statutory right to require employees to take annual leave at their direction, subject to providing staff with notice equal to at least double the length of the leave that you are directing them to take (e.g. 10 days’ notice for five days leave). However, this measure is not likely to achieve any urgent cost savings or alleviate immediate cash-flow pressure as holidays would need to be paid.

Clearly, annual leave can be taken on furlough so you could have staff on furlough and annual leave.

Flexible workingLast updated on 6th May, 2020

Many employees require flexible working now more than ever. That could be reduced hours, working from home, reduced days, etc. Be careful to act fairly when considering these requests as they can be a discrimination claim in the waiting.

A flexible working request is a request for a permanent change to the contract of employment however to encourage a greater take up during this difficult time, you can agree this on a temporary basis.

Capability issuesLast updated on 6th May, 2020

All organisations have underperformers. Capability is a potentially fair reason to dismiss and is separate to any redundancy procedures.

Generally, capability falls into either absences through illness or underperformance in the role. Those who are absent through sickness can be furloughed, but when furlough comes to an end they will need to go back onto sickness. If you are looking to tackle absence then you need to tackle long term and short term absence in a different way.

Long term absence: You need to establish whether the employee is able to return to work (with or without reasonable adjustments) in the medium term. This requires medical opinion and be careful of disability issues. Reasonable adjustments are likely to be important.

Short term absence: You will need to demonstrate that you have fair absence triggers in place and there is normally be a 3 stage procedure: warning and final warning followed by dismissal on notice. Each stage needs a fair procedure, with written information, a fair hearing and the opportunity to appeal. Be careful of disability issues.

As for underperformance: To tackle this, you will need to have clear SMART objectives in place and evidence of the employee failing to meet these. There would then normally be a 3 stage procedure: warning and final warning followed by dismissal on notice. Each stage needs a fair procedure, with written information, a fair hearing and the opportunity to appeal.

Lay off and short time workingLast updated on 6th May, 2020

Lay off is a temporary measure where an employee is required not to do any work by their employer in any given week and does not receive any salary for that period. This is sometimes used interchangeably to refer to redundancies; however, this is not correct and lay-off is different to redundancy.

Lay-off may be very useful to achieve short or medium-term cost savings in response to a temporary reduction in demand for products or services. Whether the employer has the right to implement lay-offs and how swiftly they can expect to be able to do so will depend on whether the relevant contracts of employment have specific provisions which deal with lay-off.

Short time working is where an employer temporarily reduces an employee’s working hours, with a corresponding reduction in their pay to less than 50% of their usual salary. This could be through reducing the number of working days, reducing the length of working days or a combination of both.

Short time working provides the employer with the ability to reduce staffing costs whilst providing flexibility in deciding the form of working pattern. As with lay-off, whether the employer has the right to unilaterally impose short-time working and how swiftly they can expect to practically implement this will depend on whether the relevant contracts of employment contain a short time working clause.

Where there is a contractual right to lay off or impose short time working: There is no strict process which has to be followed. We would advise transparent communication and confirmation in writing.

Where there is no contractual right: Imposing these options without a contractual right to do so will be a fundamental breach of the employee’s contract of employment. In these circumstances the employee’s options are: accept the situation and keep working; claim for lost pay; resign and claim constructive dismissal. The best approach for employers in these circumstances is to instead seek to agree lay-off or short-time working arrangements with employees.

Selecting employees for lay-off or short time working: There is no prescribed method for selecting which employees are to be laid-off or placed on short-time working, provided that the employee cannot argue that the method of selection is discriminatory in some way. We would advise selection based on objective business reasons.

Entitlement to pay during lay-off or short time working: Employees must be paid for the time they work. Additionally, while on lay off or short time working, an employee is entitled to receive statutory guarantee pay for the first 5 workless days in any 3-month period. The maximum statutory guarantee pay in any 3-month period is £150 (i.e. £30 for each workless day up to a maximum of 5).

Entitlement to statutory redundancy pay: Once employees have been on lay-off or on short-time working for 4 consecutive weeks or for a combined total of 6 weeks during any 13-week period, they may seek to claim a statutory redundancy payment (provided that they have two years’ service). There is a prescriptive process for this – please seek advice.

Reductions in salaryLast updated on 6th May, 2020

An obvious cost cutting measure is to reduce salaries, either temporarily or permanently. If you are to seek a reduction in salaries, this should be done fairly – either across the board or by selecting teams/individuals based on objective business reasons.

Note that this cannot be imposed without significant risk. Without agreement, this would need fair selection and consultation.

Reductions in working hoursLast updated on 6th May, 2020

Another obvious cost cutting measure is to reduce working hours, either temporarily or permanently. Again, it should be done fairly, either across the board or by selecting teams/individuals based on objective business reasons. Imposing without agreement would create significant risk, therefore would require fair selection and consultation.