VIDEO: SRA Standards and Regulations

• 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.
• A furloughed worker 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 for at least 5 years.
• 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.

Mortuaries are a sui generis use, unless ancillary to some other use of land, a hospital for example.

Sui generis uses are not within any Use Class. Consequently planning permission is required for the:

• Change in the use to a sui generis use
• Subsequently for the change in the use to an alternative use, whether that be another sui generis use or a use within a Use Class

Acknowledging the above, if the scale of the use is above de minimis, planning permission is likely to be required to change the use of a warehouse or factory unit into a temporary mortuary.

Should planning control be breached, a local planning authority must decide whether to take enforcement action or not. That enforcement is discretionary was recently reiterated in a Ministerial Statement issued on 13 March 2020 a link to which is below.

https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2020-03-13/HCWS159/

Depending on the form of the enforcement action, there could be a right of appeal.

It would apply if the contractor uses an intermediary to provide their services or labour and they would be deemed to be an employee or office holder for tax purposes if they were hired directly by the end user client rather than via the intermediary PSC. This would of course require an assessment of employment status for tax purposes.

Contractors who are not taxed in the UK and supply their services exclusively from outside of the UK are unaffected.

If IR35 applies, tax and NIC’s should be deducted under PAYE by the PSC. In reality this has not been happening so a major reform of the regime was due to be implemented in April 2020. The changes were postponed by one year and are due to take effect from 6 April 2021.

“Within IR35” means a contractor arrangement is caught by IR35 and the individual should be taxed as an employee.

“Outside IR35” means a contractor arrangement is not caught by IR35 and the contractor status is fine.

This is likely to be a common situation and employers and employees are going to have to take a pragmatic approach. You could enter into a temporary flexible working arrangement perhaps agreeing to vary working hours/days or reducing targets or agree to use some annual leave.

Employees could ask to take a period of unpaid leave, asserting their right to time off to care for a dependant but the lack of pay is likely to be unappealing.

Alternatively employees who are unable to work because they have caring responsibilities as a result of COVID-19, which includes childcare responsibilities, can be furloughed.

The recommendation is every 3 years, however it is recommended that MHFAs receive regular ongoing training and support.