Is there a cap on the number of employees on Flexible Furlough?

There has been a significant amount of press coverage talking about institutional racism within the NHS not only in terms of the treatment of patients but also in terms of the low representation of ethnic minority staff in management positions. Whilst tackling that issue is beyond the brief here, it is important to recognise that sub conscious bias can, regrettably, play a part in decision making processes. An Employment Tribunal will explore a alleged discriminator’s conscious and sub conscious decision making and working in an environment which has not set out sufficient controls to avoid such sub conscious stereotyping places someone at a greater risk of being discriminated against.

In the context of the issues we are addressing here, i.e. risk assessments around BAME staff, as we have stated above, it is essential that BAME staff are represented at all levels in the discussion. Trusts need to be mindful that BAME are underrepresented in management positions.

BAME staff need to be included in the dialogue and need to have a safe place where they can challenge decisions that are being made in relation to them. There needs to be accountability in the processes applied. Meaningful conversations need to happen and concerns should not be dismissed.

Although these measures fall short of the level of assurance given to employees both in terms of eligibility for an immediacy of access to payments, they are a vast improvement on the support for self-employed workers that has been put in place until now. Current support includes:

• Access to business interruption loans
• Self-assessment tax payments that were due in July 2020 have been deferred until January 2021
• VAT is deferred until the next quarter
• The introduction of Time to Pay arrangements under which deferrals for HMRC payments can be agreed
• The minimum income floor for universal credit has been suspended which will allow self-employed workers to access the equivalent of Statutory Sick Pay (SSP)
• Universal credit and tax credit payments to increase by £1000 per year

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.

This is unlikely. Frustration is a doctrine rarely used as a way of getting out of leases. It operates to bring a lease to an early end because of the effect of a supervening event. It is then not a concept readily applicable to a situation where one party is looking to get out of a lease. To be able to argue the doctrine of frustration, you must be able to demonstrate that something unforeseeable has happened that makes it impossible to fulfil the lease and unjust to hold a party to its obligations.

This is not something that can be demonstrated easily.

There was a case in the High Court last year when the doctrine of frustration was looked at in a case involving the European Medical Agency.

The court found that Brexit did not frustrate EMA’s lease. EMA was granted leave to appeal that decision to the Court of Appeal, but unfortunately, the parties settled out of court so the arguments were not tested in the higher court.

Another reason why frustration is likely to fail is an argument that, whilst the current lockdown may force closures to businesses and whilst such closures maybe for a lengthy period, such closures will only be temporary.

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.