New COVID-19 Restrictions for Scotland have this afternoon been confirmed by Holyrood. 11 local authority areas have been moved to Level 4 restrictions, 2 have moved down to Level 2 & 19 have remained the same.
From 6pm Friday 20 November, the new COVID-19 Restriction Level allocations will be:
Level 1: Comhairle Nan Eilean Siar Highland Moray Orkney Shetland
Level 2: Aberdeen City Aberdeenshire Argyll and Bute Borders Dumfries and Galloway
Level 3: Angus Clackmannanshire Dundee City Edinburgh Falkirk Fife Inverclyde North Ayrshire Perth and Kinross
East Lothian and Midlothian will remain in Level 3 until Tuesday 24 November when they will move to Level 2.
Level 4: East Ayrshire East Dunbartonshire East Renfrewshire Glasgow North Lanarkshire Renfrewshire South Ayrshire South Lanarkshire Stirling West Dunbartonshire West Lothian
Support for Employers
The COVID-19 lockdown restrictions and extension to the furlough scheme continue to present numerous and complex challenges for Employers.
If you are an Employer and require advice and support on any employment matters, COVID related or otherwise, call us now on 0800 612 4772 or Contact us via our website and we will set assist you to navigate through the employment law minefield created by the COVID-19 crisis and comply with your legal obligations.
Businesses across the Central Belt of Scotland are bracing themselves ahead of today’s announcement from the leader of the Scottish administration, Nicola Sturgeon, when it is anticipated she will confirm that large parts of the West of Scotland will be moved up to strict Level 4 COVID-19 restrictions, the highest tier of coronavirus restrictions possible.
What Does the Law Say About Level 4 Restrictions?
When considering what implications, if any, a move to strict Level 4 restrictions might have for Scottish businesses, we need to look to the current Coronavirus legislation. Originally the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 set out the legal requirement to restrict movement and/or close premises and businesses during the emergency period. This has since been revoked and replaced by The Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020, which sets out the new legislation in respect the tiers of restrictions now in place.
Which Businesses Will Be Forced to Shut?
If Ms Sturgeon does decide to impose tighter restrictions across the Central Belt, many businesses that have only just started to recover from the previous lockdown will be forced to shut again, just as they were preparing for a much-needed uplift in trade in the lead up to Christmas.
This includes all non-essential shops, restaurants, bars, businesses which provide close contact services such as gyms, hairdressers, barbers, beauty, nail, massage and complimentary therapies, as well as those responsible for providing holiday accommodation, whether in a hotel, hostel, bed and breakfast accommodation, holiday apartment, home, cottage or bungalow, campsite, caravan park or boarding house.
In short, a move to strict Level 4 restrictions should NOT impose any new restrictions that prevent non-essential offices from continuing to operate as they have been, require that staff work from home or prohibit staff from commuting to work.
The default position from the Scottish administration has always remained that non-essential offices should remain closed and that staff should work from home where possible, but there is nothing in the legislation (original or recent) that requires non-essential offices and/or manufactures to close OR which restricts the movement of people either within or between different tier areas in the same way that Part 3, Regulation 5 of the now revoked Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 set out the restrictions on movement which, in the early phases of lockdown, meant people could not leave their homes unless they were a key worker, an essential worker or otherwise had a valid reason to.
However, Schedule 5 of the latest legislation, which sets out in detail the Level 4 restrictions lists which types of businesses are required to shut, makes no reference whatsoever to non-essential offices, therefore, provided you have undertaken the appropriate H&S risk assessment and introduced all necessary controls and measures to protect your staff, there is no requirement to shut non-essential offices.
What Guidance is Available for Employers?
There is sector specific guidance available on the official Scottish Administration website, but no specific guidance for non-essential offices and call centres. The official guidance states that all business workplaces that are not being specifically required to close should consider a set of key questions – and at all times work on this precautionary basis:
Is what you do essential or material to the effort against the virus or to the wellbeing of society?
Is your business able to open in accordance with the current position in the Scotland’s Route Map?
Are you able to demonstrate and give confidence to your workforce that you can consistently practice safe physical distancing and comply with ALL other standard health and safety requirements?
If your business is covered by the sector specific guidance, you should follow that. If not, you should keep checking and reviewing the risks to yourself, your employees, your suppliers and your customers.
What Issues Might Employers Face if Level 4 Restrictions Are Imposed?
Many of the issues facing employers as they stare down the barrel of further lockdown restrictions will be similar to those they faced when the impact of the COVID-19 pandemic started to impact on peoples’ lives and work back in March this year.
The immediate issue for employers of business workplaces that are not being specifically required to close is whether they should close voluntarily, in full or in part. The fact that the Furlough scheme has been extended to the end of March 2021 means this is a viable option and one that would enable them to retain staff for however long the stricter lockdown restrictions remain in place.
However, if closing the workplace isn’t an option, other issues employers may face include the following:
Staff either being or living with a “clinically extremely vulnerable’ or ‘clinically vulnerable’ person.
Childcare issues and staff claims they can’t return to work because children need to self-isolate.
Staff simply being extremely anxious about the risk posed by COVID-19 and frightened of a return to the office.
Staff expressing concerns relating to health & safety and what they perceive to be the employer’s failure to follow government guidance.
The appropriate approach employers should take will depend on the specific reasons set out by each employee, but employers will need to proceed with caution to avoid the risk of possible claims at the Employment Tribunal.
Support for Employers
The COVID-19 lockdown restrictions and extension to the furlough scheme continue to present numerous and complex challenges for Employers.
0800 612 4772
If you are an Employer and require advice and support on any employment matters, COVID related or otherwise, call us now on 0800 612 4772 or Contact us via our website and we will set assist you to navigate through the employment law minefield created by the COVID-19 crisis and comply with your legal obligations.
On 13 November 2020, HM Treasury published its fourth Treasury Direction, which together with the previous Treasury Directions, form the legal framework for the CJRS (furlough scheme). We have updated our COVID-19 Guidance for Employers and provide a useful summary of the key differences.
We have updated our COVID-19 Guidance for Employers and provide a useful summary of the key differences between the pre-and-post extension that Employers should be aware of here: Coronavirus Support & Information.
Failing to ensure any previously issued furlough agreements meet the extended CJRS grant eligibility conditions could result in failed grant claims.
Here’s how to avoid making that simple mistake:
To be eligible for the grant, employers must have confirmed to their employee (or reached collective agreement with a trade union) in writing that they have been furloughed or flexibly furloughed.
Employers must:
make sure that the agreement is consistent with employment, equality and discrimination laws.
keep a written record of the agreement for 5 years.
keep records of how many hours their employees work and the number of hours they are furloughed (for example, not working), for 6 years.
The employee does not have to provide a written response and employers do not need to place all their employees on furlough.
The terms of any agreement must:
reflect the hours the employee has actually worked or not worked over the period of the agreement.
allow the employer to satisfy the terms of CJRS so they can make a claim in relation to hours not worked.
To ensure your staff remain eligible for the extended furlough scheme grant funding, you must ensure any previously issued furlough agreements meet the aforementioned conditions. Provided they do so, any flexible furlough or furlough agreement made retrospectively that has effect from 1 November 2020 will be valid for the purposes of a CJRS claim as long as it is made according to the conditions above. Only retrospective agreements put in place up to and including the 13 November 2020 may be relied on for the purposes of a CJRS claim.
If you’re not sure if your previously issued flexible furlough agreements meet the necessary criteria please contact us and we will review any previously issued agreements for you and provide further guidance to you thereafter.
Full guidance is due to be published next week, on 10 November 2020 and claims can be made from 11 November 2020.
On 5 November 2020, the Chancellor Rishi Sunak announced that the Coronavirus Job Retention Scheme (CJRS) will be extended until 31 March 2021 and it is more generous than the scheme running in September and October.
Until at least January 2021, Employers will be able to claim 80% of employees’ wages, capped at £2,500 for hours not worked. Employers must pay the national insurance and employer pension contributions on employees’ furlough pay. The percentage may be reviewed for February and March.
Full guidance is due to be published next week, on 10 November 2020 and claims can be made from 11 November 2020.
The Chancellor confirmed that the CJRS applies to the whole of the UK equally.
Employers do not need to have used the CJRS previously and can claim whether their business is open or closed.
Employees can be fully or flexibly furloughed.
Employees must have been on the employer’s payroll on 30 October 2020, but do not need to have been furloughed previously.
Employees who were made redundant or stopped working for their employer after 23 September 2020 can be re-employed and claimed for under the scheme.
Employers will be able to claim for the period from 1 November from 8.00 am on 11 November 2020.
Employees who have previously been furloughed continue to have their reference pay and hours based on the existing furlough calculations (as under the old scheme).
Employees who have not previously been furloughed will have a different pay/hours reference period. Full guidance will be provided on 10 November, but broadly the pay is based on 80% of the wages payable in the last pay period ending on or before 30 October 2020 (for those on fixed wages), or 80% of the average payable between the start date of their employment or 6 April 2020 (whichever is later) and the day before their CJRS extension furlough periods begins (for those on variable wages).
Employees can be furloughed if they are shielding in line with public health guidance (or need to stay at home with someone who is shielding). That does not, of course, mean they have to be furloughed.
Eligibility for Extended Furlough Scheme
To be eligible for the grant, employers must have confirmed in writing to their employee (or reached collective agreement with a trade union) that they have been furloughed. The employee does not have to provide a written response. Also:
“Where consistent with employment law, any flexible furlough or furlough agreement made retrospectively that has effect from 1 November 2020 will be valid for the purposes of a CJRS claim as long as it is made according to the conditions above. Only retrospective agreements put in place up to and including the 13 November 2020 may be relied on for the purposes of a CJRS claim.”
What About the Job Support & Job Retention Schemes?
It was also confirmed that the Job Support Scheme has been “postponed”. It is not known whether it will be introduced after the CJRS ends.
The Job Retention Bonus has been deferred and a new retention incentive scheme will be deployed at a later date. A third grant for the self-employed will be available covering November to January of 80% of average trading profits up to a maximum of £7,500.
The UK Government will review the policy in January to decide whether economic circumstances are improving enough to ask employers to contribute more.
Support for Employers
The COVID-19 lockdown restrictions and extension to the furlough scheme continue to present numerous and complex challenges for Employers.
If you are an Employer and require advice and support on any employment matters, COVID related or otherwise, call us now on 0800 612 4772 or Contact us via our website and we will set assist you to navigate through the employment law minefield created by the COVID-19 crisis and comply with your legal obligations.
In light of the PM’s announcement on 30 October 2020, in which he confirmed the Coronavirus Job Retention Scheme (Furlough Scheme / CJRS) will be extended to 2 December 2020, the new Job Support Scheme (JSS) will now not start until the extended Furlough Scheme ends.
The extension of the Furlough Scheme may create some confusion and concern for Employers who have already formally ended furlough and have implemented a formal short time working arrangement with employees. For guidance on this point, Employers can look to the third Treasury direction, in which the Treasury confirmed the requirement to reach agreement on flexible furlough arrangements needs to be confirmed in writing by employers (which may be in electronic form such as an email).
A literal interpretation of the Treasury direction would suggest that any formal agreement reached on short time working would mean employees returning to work under these arrangements would be eligible for the extended CJRS as being flexibly furloughed, but at the date of writing this we are still awaiting further guidance from the Treasury to determine what steps, if any, Employers will need to take with those employees they have entered into short time working arrangements with.
What the Treasury has confirmed so far is that the CJRS has been extended until December and will operate as the previous scheme did and the level of the grant will mirror levels available under the CJRS in August; so the government will pay 80% of wages up to a cap of £2,500 and employers will pay employer National Insurance Contributions (NICs) and pension contributions only for the hours the employee does not work and that flexible furloughing will be allowed in addition to full time furloughing.
In addition, the Treasury has set out revised eligibility criteria and details of the support being provided:
Employers
All employers with a UK bank account and UK PAYE schemes can claim the grant. Neither the employer nor the employee needs to have previously used the CJRS.
The government expects that publicly funded organisations will not use the scheme, as has already been the case for CJRS, but partially publicly funded organisations may be eligible where their private revenues have been disrupted. All other eligibility requirements apply to these employers.
Employees
To be eligible to be claimed for under this extension, employees must be on an employer’s PAYE payroll by 23:59 30th October 2020. This means a Real Time Information (RTI) submission notifying payment for that employee to HMRC must have been made on or before 30th October 2020.
*As under the current CJRS rules:
Employees can be on any type of contract. Employers will be able to agree any working arrangements with employees.
Employers can claim the grant for the hours their employees are not working, calculated by reference to their usual hours worked in a claim period. Such calculations will broadly follow the same methodology as currently under the CJRS.
When claiming the CJRS grant for furloughed hours, employers will need to report and claim for a minimum period of 7 consecutive calendar days.
Employers will need to report hours worked and the usual hours an employee would be expected to work in a claim period.
For worked hours, employees will be paid by their employer subject to their employment contract and employers will be responsible for paying the tax and NICs due on those amounts.
What support is being provided and employer costs:
For hours not worked by the employee, the government will pay 80% of wages up to a cap of £2,500. The grant must be paid to the employee in full.
Employers will pay employer NICs and pension contributions and should continue to pay the employee for hours worked in the normal way.
As with the current CJRS, employers are still able to choose to top up employee wages above the scheme grant at their own expense if they wish.
The Government will confirm shortly when claims can first be made in respect of employee wage costs during November, but there will be no gap in eligibility for support between the previously announced end-date of CJRS and this extension.
Within hours of the Prime Minister announcing new national lockdown restrictions for England, the UK Treasury has confirmed that the extension of the Furlough Scheme will apply across the whole of the UK, not just in England.
Employers would be forgiven for wondering why the Prime Minister couldn’t have made this clear during his initial announcement, but will be grateful HMRC have at least moved quickly to provide clarity.
Employers will have flexibility to bring furloughed employees back to work on a part time basis or furlough them full-time, and will only be asked to cover National Insurance and employer pension contributions which, for the average claim, accounts for just 5% of total employment costs, so the cost for employers of retaining workers will be reduced compared to the current scheme, which ends today. .
The Job Support Scheme, which was scheduled to come in on Sunday 1st November, has been postponed until the furlough scheme ends.
Many Employers will have already taken steps to end furlough for employees from next week and may have either told them to return to work under their normal contracted hours, or agreed a short-time working arrangement.
The decision to extend the Furlough Scheme shouldn’t effect any arrangements already reached with employees, but does mean the mechanism for reclaiming costs will remain the CJRS portal.
Employers unsure about how this extension to the Furlough Scheme might impact the arrangements they have made with employees should take advice to ensure they remain complaint with the Terms of the Furlough Scheme and associated employment legislation.
Support for Employers
If you require any advice or support, please contact our team of employment law specialists to get clear and purposeful advice.
Prime Minister Boris Johnson has announced this evening a second national lockdown for England as the UK passes one million Covid-19 cases.
In a press conference from Downing Street this evening, Prime Minister Boris Johnson has announced that with effect from Thursday 5 November 2020, there will be a National Lockdown across England until at least 2 December 2020, subject to the new measures being approved in Parliament early next week.
Key Lockdown Measures
Lockdown will come into force on 5 November and last until 2 December 2020.
The CJRS (Furlough Scheme) will not end today but will now be extended until 2 December*
Non-essential retail and hospitality will close.
Pubs, bars and restaurants to close, except for takeaways.
Schools, colleges and universities will remain open.
Households will not be allowed to mix indoors or outdoors.
Shielding measures will not be re-introduced, but vulnerable people or those aged over 70 are told to be especially careful.
* During his press conference, the Prime Minister failed to clarify whether the extension of the Furlough Scheme until 2 December 2020 was limited to England, or if it would be extended to Scotland, Wales and Northern Ireland.
The Furlough scheme was due to end at midnight tonight and thousands of Employers throughout the UK will have already taken steps to have staff return to work next week, potentially on a short time working basis, expecting to take advantage of the new Job Support Scheme.
The lack of clarity around the extension of the Furlough Scheme and whether this includes Scotland, Wales and Northern Ireland will have left thousands of Employers wondering what the status of their staff will be when they return to work next week; will they be flexibly furloughed or will they be on short-time working and which grant scheme will Employers need to use to reclaim wage costs?
It seems unlikely that the extension of the Furlough Scheme would be limited to England, but until Downing Street clarify the position Employers outside of England will be wondering what the status of their staff will be when they return to work next week.
Death by a Thousand Cuts for Thousands of UK Employers
Employers have already had to endure 7 months of COVID-19 restrictions with thousands of businesses having been forced to remain closed since March and thousands more, who were eventually able to re-open as restrictions were eased, forced to close again when the localised tiered system of COVID-19 restrictions was introduced.
These latest restrictions announced by the Prime Minister will see England returning to a national lockdown reminiscent of the restrictions imposed across the whole of the UK back in March, the main difference being schools and colleges will be allowed to remain open.
In Scotland, the new 5-tier restrictions come into force on Monday 2 November 2020 and in advance of this, First Minister Nicola Sturgeon has issued new advice that people should not travel to or from England, except for essential purposes.
In Wales, First Minister Mark Drakeford said that his cabinet will meet on Sunday to “discuss any potential border issues for Wales in light of any announcement by No 10” but confirmed that the 17-day “firebreak” there will end as planned on 9 November.
We will continue to monitor developments and provide an update once the position becomes clearer.
Support for Employers
If you require any advice or support with any employment matter, COVID related or otherwise, please contact our team of employment law specialists to get clear and purposeful advice.
If you are an employee and find yourself in a situation where you have been advised by your employer that they want to bring the employment relationship to an end, by reason of redundancy or by way of a Settlement Agreement, or you believe your employment rights have been breached in any way, the team at Employment Law Services (ELS) can help you.
With the Coronavirus Job Retention scheme due to end on 31 October 2020, Employers have one week to decide what to do with staff who are currently furloughed and/or flexibly furloughed.
Following yesterday’s announcement by the Chancellor, HMRC has published a policy paper containing more details on the Job Support Scheme which now defines the scheme is two ways:
JSS Open; and
JSS Closed
Under JSS Open, an employee will need to work at least 20% (no longer 33%) of their normal hours. They will receive normal pay for the hours they work, and two-thirds of pay (subject to a cap which bites against those earning more than £3,125 a month) for the hours they do not work. For that two-thirds top-up, the government will pay 61.67% and the employer will pay 5%, plus NI and pension contributions on the full amount. That is a significant change from the previous 50:50 split towards the two-thirds top-up, shifting the financial cost overwhelmingly to the public purse. There must be a written agreement between employer and employee, agreeing to the changes.
Under JSS Closed, the position remains that the employee will receive two-thirds of their normal wages, funded by the government (again, with a cap biting against those who earn more than £3,125pm). The employer will have to pay the NI and pension contributions on that amount. Again, there must be a written agreement between employer and employee, agreeing to the changes.
The policy paper provides some detail about how the scheme will operate, eligibility criteria and how to calculate pay, but full details are still to be confirmed and Treasury Direction is expected to be issued soon.
Decision Time for Employers
In the meantime, Employers will need to decide what to do with who are currently furloughed and/or flexibly furloughed and our multi-award-winning team of employment law specialists are ready to help you!
We can give you advice and support on:
Ending furlough and/or flexible furlough
Employment contract changes necessary to utilise the Job Support Scheme
Drafting and providing written agreements between employer and employee, agreeing to the changes.
The correct redundancy processes to ensure fairness and legal compliance
Utilising settlement agreements as an alternative to a full blown redundancy process.
On Thursday 22 October 2020 the Chancellor announced a package of further economic measures to support businesses affected by the ongoing COVID-19 pandemic.
The package announced by the Chancellor in a statement to the House of Commons includes significant changes to the short-time working Job Support Scheme (JSS), expanded grants for businesses in high-alert areas, and increased grants for the self-employed.
The announcement of increased Government contributions under the JSS comes just two weeks after an extension to the Scheme was announced and will be warmly welcomed by many employers that were facing the prospect of having to make redundancies at the end of October.
Under the JSS, an employee will now only need to work and be paid for at least 20% of their normal hours, not 33% as originally announced. For the employee’s remaining (unworked) hours, the government will provide up to 61.67% of the employee’s normal wages, up to £1,541.75 a month (up from £697.92 as originally announced). The employer will contribute the other 5% of the unworked hours (not 33% as originally announced). These changes are being made with a view to enabling businesses to retain staff and avoid redundancies. The JSS for businesses legally required to close their premises remains unchanged.
There has been no change to the eligibility requirement for the JSS, such that all small and medium sized businesses will be eligible. Larger businesses are only eligible if their turnover has fallen during the pandemic. Eligible employers will be able to claim under both the JSS and the Job Retention Bonus (for employees who have previously been furloughed).
The government will also increase the amounts available under the next tranche of the Self Employment Income Support Scheme (SEISS). For those currently eligible for SEISS and who continue to actively trade but face reduced demand, the initial taxable grant will now be worth 40% of average monthly trading profits, up to a total of £3,750, covering the period from November 2020 to January 2021. The level of the second grant covering February to April 2021 will be set at a later date.
In England, business grants of up to £2,100 a month will be made available for businesses in the hospitality, accommodation and leisure sectors which have not been required to close but are impacted by restrictions in high-alert areas. These grants will be available retrospectively for areas which have already been subject to restrictions. The grants will be administered and distributed by local authorities, who will determine which businesses are eligible for funding.
In Scotland, the First Minister announced that the current temporary restriction will remain in place until 2 November 2020, by which time they will have published details of their 5 tier COVID restrictions alert system. In the meantime, funding for business grants over this period will be increased proportionately. The COVID-19 Restrictions Fund will now provide one-off grants of up to £4,310 to businesses required to close by the regulations in Scotland and for businesses that remain open but are directly impacted by the restrictions, the maximum hardship fund grant will increase to £2,155. In addition, grants of £1,650 will help those businesses that are required to close to meet the 20% employer’s contribution they are required to pay under the UK Government’s CJRS.
However, these one-off grants in Scotland are for the period until 2 November 2020 and the Scottish administration has yet to clarify and/or confirm whether it intends to mirror the monthly grant scheme introduced in England.
We will be updating our FREE COVID-19 Guidance for Employers and comprehensive FAQs document in the coming days to help employers understand the key elements of the new JSS to assist them in planning what to do when the furlough scheme comes to an end on 31 October 2020.
In the meantime, if you require any advice or support with introducing short time working via the Job Support Scheme, redundancies or any other employment matter, please contact our team of employment law specialists to get clear and purposeful advice.
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