What is the penalty for failing to comply with the individual consultation obligations?

MHFAs are not qualified mental health medical professionals and they should not be diagnosing or giving medical advice, however, their training will equip them to provide initial support to those experiencing symptoms of mental ill health, and to signpost to further professional help when needed. The MHFA training makes the boundaries of the MHFA role very clear and there should be clearly defined role specifications, procedures and support pathways in place to ensure that individuals are referred on appropriately. There should be peer support in place for MHFAs and a system in place to ensure no individual or individuals are overloaded.

Following our webinars on all aspects of furlough and alternatives to redundancy, it is an unfortunate fact that a number of organisations are likely, sooner or later, to be forced to make some employees redundant.

Our employment experts Jamie Gamble and Roisin Patton take you through the key aspects of conducting cost reduction redundancies, but with a focus on aspects that make this exercise different this time. For instance:

• How are you going to conduct sensitive meetings remotely?
• How are you going to ensure that dismissing any furloughed staff will be fair? You may have furloughed at speed, but redundancy selection criteria cannot be defined by such factors.
• Will you use this time to review your selection criteria if you already have some in place?
• How will you deal with individuals who are shielding, have child care issues or are pregnant?
• How do you ensure this is all done sensitively and fairly for those roles that are being made redundant, but also for those who continue to work for you but are still isolated on furlough or working from home?
• And what are the risks for making redundancies in this “new normal”?

Although you may be perfectly familiar with redundancy exercises these are far from normal times and it is therefore worth pausing to think about the impact that Covid-19 might have and what else you need to think about or plan for.

The webinar was recorded on Thursday 2nd July.

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
  • Employer minimum pension contributions

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.

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.

If the debts owed to you pre-date Covid-19 and your debtor seemed unable to pay well before the Covid-19 pandemic took place, it is entirely possible that you will be able to present a petition on the grounds that the debtor would have been unable to pay its debts even if the Covid-19 had no effect on its financial position. We do not yet have any reliable precedent as to how the Courts are likely to deal with such cases.  Whether you are likely to succeed will depend on the exact circumstances of the debt and your debtor. There has been one case decided in August 2020 where the Court concluded that Covid-19 did not have a financial effect upon the debtor and that the circumstances which gave rise to the petition had arisen long before Covid and would have occurred in any event.  A winding up order was made in that case.  What we do know about the court’s approach is that the purpose of the Act is to allow viable companies to trade through the current times and the Court is likely to set the bar high.

Please contact us if there a debt you would like to discuss. Even if presenting a winding up petition is not available for now, there may still be other forms of legal proceedings that you can use to collect money owed to you, like county court proceedings.