What type of matters are the Courts still dealing with?

Obtaining an employee’s Covid-19 test result will amount 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.

A claim for indirect discrimination is the most likely risk here. The first point to make is that the decision to review duties is being made based on the growing amount of medical evidence that the BAME community is being disproportionately adversely affected by the COVID 19 pandemic compared to other ethnic groups. The key is to ensure that blanket policy decisions are not taken, nor should assumptions be made about the risk to each individual concerned. Decisions should only be made on an individual basis with an open dialogue with the individual concerned. You as their employer, need to ensure that the individual feels listened to and heard; that this is not just a tick box exercise.

Consider having a working group which has an overview of the policy decisions being made. That working group should contain representatives from across the staff groups including staff side, but importantly, representatives from different ethnic backgrounds to ensure the important voices are heard. Accountability should be built into that group. This group should also be a safe environment for staff to raise concerns about their health and safety and safe systems at work.

The application has to be made before the date on which the accounts should have been filed, so this process can’t be used if you are already late. If you don’t make the application before your filing deadline, then a fine will automatically be generated if your accounts are filed late. Whilst you could appeal against such a fine on the grounds that the delay was caused by coronavirus issues, this is likely to be a much more time consuming and uncertain process that applying in advance.

It does not appear that the process applies to Confirmation Statements or other returns.

Partners Damien Charlton and Jane Garvin look at the provisions of the Bill which impact on a supplier’s rights under a contract when their customer enters an insolvency procedure. They also outline other changes to insolvency procedures that the new law will introduce.

This webinar is part of a series designed for in-house lawyers.  If you would like to register to receive invitations to future events for in-house legal counsel, please email damien.charlton@wardhadaway.com.

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.