On Friday 9 October 2020 the Scottish administration ordered the closure of pubs and restaurants across central Scotland and with the UK Government considering similar ‘local’ lockdown restrictions for many parts of England, the Chancellor announced the extension of the new Job Support Scheme (JSS).
The extension of the JSS is intended to provide temporary support to businesses whose premises have been legally required to close as a direct result of coronavirus restrictions and will see affected businesses receiving grants towards the wages of employees who have been instructed to and cease work. The UK government will now pay two thirds of employees’ usual wages, up to a maximum of £2,100 per month and employers will not be required to contribute towards wages, but will need to cover employer National Insurance and pension contributions.
The announcement of an extension to the JSS comes hot on the heels of the new Scheme being introduced by the Chancellor just two weeks earlier and will undoubtedly be welcomed by many employers, but the end of the CJRS (furlough scheme) will still leave many employers unsure about their future and that of their employees.
We have updated our FREE COVID-19 Guidance for Employers and collated a comprehensive FAQs document 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.
Check out our summary of the new JSS here and to get answers to many of the frequently asked questions about the Job Support Scheme (JSS).
Support for Employers
The COVID-19 lockdown restrictions and various government schemes being introduced by the UK government 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.
Navigating your business through the COVID-19 crisis comes with a lot of challenges. Complying with the rules of the new Job Support Scheme and relevant employment law doesn’t need to be one of them.
The latest government guidance on the new Job Support Scheme makes clear that Employers must agree the new short time working arrangements with their staff, make any changes to the employment contract by agreement, and notify the employee in writing.
It is essential, therefore, that Employers intending to utilise the new Job Support Scheme to introduce short time working comply fully with the relevant employment legislation and rules of the new Scheme to avoid the risk of potential future claims at the Employment Tribunal AND falling foul of HMRC, which could result in costly litigation and grant claims being withheld or being required to be repaid.
Our team of employment law specialists will help Employers to:
understand their options once the current furlough scheme ends and how short time working can be introduced;
draft the appropriate variation/agreement document required to correctly introduce short time working; and
properly notify employees of the proposed short time working arrangements to ensure compliance with the rules of the scheme and the relevant employment laws.
Our team of employment law specialists offer clear and purposeful advice, can provide same day/next day appointments (online or in person) and a quick turnaround.
The UK Government appear to be somewhat quicker off the mark with publishing details about the new Jobs Support Scheme announced earlier today by the Chancellor than they were when the CJRS was first introduced. Two Government publications in particular provide further details; the Job Support Scheme Factsheet and the Winter Economy Plan.
We’ve taken a look at the initial publications and have put together a summary of the key points.
Compliance with Employment Law
One key observation from this initial guidance is that Employers must agree the new short time working arrangements with their staff, make any changes to the employment contract by agreement, and notify the employee in writing. This agreement must be made available to HMRC on request.
It is essential, therefore, that where Employers are looking to utilise the new Job Support Scheme and introduce short time working, the comply fully with the relevant employment legislation when introducing it with their staff so as to avoid the risk of potential claims at the Employment Tribunal AND falling foul of HMRC and having claims withheld or required to be repaid.
Eligibility for the Job Support Scheme
All employers with a UK bank account and UK PAYE schemes can claim the grant, but large businesses will have to meet a financial assessment test to determine whether their turnover is lower now than it was before experiencing difficulties from COVID-19. SMEs are exempt from the financial assessment.
All employees must have been on the employer’s Real Time Information submission on or before 23 September 2020.
How to Claim the Job Support Scheme
The scheme will be open from 1 November 2020 to the end of April 2021. Employers will be able to make a claim online through Gov.uk from December 2020. They will be paid on a monthly basis.
Grants will be payable in arrears meaning that a claim can only be submitted in respect of a given pay period, after payment to the employee has been made and that payment has been reported to HMRC via an RTI return.
What Can Be Claimed Under the Job Support Scheme
For every hour not worked the employer and the government will each pay one third of the employee’s usual pay, and the government contribution will be capped at £697.92 per month.
Employees using the scheme will receive at least 77% of their pay, where the government contribution has not been capped. The employer will be reimbursed in arrears for the government contribution.
The minimum 33% threshold hours for which an employee must work may be increased in months 4-6 of the scheme.
Working patterns can vary, but each short time working arrangement must cover a minimum period of seven days.
The government’s grant will not cover Class 1 employer NIC or pension contributions, although they remain payable by the employer.
Employees cannot be made redundant or put on notice of redundancy during the period within which their employer is claiming the grant for that employee.
HMRC Checks
HMRC will check claims. Payments may be withheld or need to be paid back if a claim is found to be fraudulent or based on incorrect information. Grants can only be used as reimbursement for wage costs actually incurred.
More details of the new Jobs Support Scheme are emerging, as the Government publishes different papers, and we shall continue to review the details as they emerge and provide updates accordingly.
Support for Employers
We can assist Employers with making the necessary changes to the employment contract and ensuring these changes are correctly implemented. Call us now on 0800 612 4772 or Contact us via our website and we will set out clear guidance to assist you to comply with your legal obligations.
The Chancellor has today announced a further package of financial support measures intended to protect jobs and support businesses.
Outlined below is a summary of the key new measures, but this is not the formal Government statement. Once the details have been revealed we shall provide further information.
New Job Support Scheme Announced by the Chancellor
Below is a summary of the key points announced today by the Chancellor.
The CJRS (Furlough Scheme) will end on 31 October 2020, as planned
A new Jobs Support Scheme will come into effect from 1 November 2020, aimed at retaining “viable” jobs and intended to support wages for people in work and to provide employers with the option to introduce short time working, opposed to making redundancies.
Employees must work at least one-third of their normal hours, which must be paid as normal by their employer, with a further top up of their salary being subsidised by the government. The Chancellor in his announcement stated this top up would equate to two-thirds, but HM Treasury have just tweeted the top up would only be one-third, bringing total salary up to just 77%. We await the official guidance with anticipation!
All SMEs are eligible and so too are larger businesses whose turnover has fallen.
The new Scheme will be open to all business throughout the UK, regardless of whether they have previously used the CJRS (Furlough Scheme and will run form 6 months from November.
Employers participating in the new Jobs Support Scheme will still be able to claim the Jobs Retention Bonus.
The self-employed grant is being extended on similar terms and conditions to the new Jobs Support Scheme.
Cashflow Assistance Also Announced by the Chancellor
In addition to the new Jobs Support Scheme, the Chancellor also announced four further steps intended to provide cashflow assistance for businesses. The key points are:
Business Bounce Back Loans can be extended from uptown 6 to 10 years to reduce the monthly repayment amounts that would have otherwise been due and businesses can seek to defer the start of repayments for up to 6 months beyond the current arrangements.
The government guarantee for Business Interruption Loans will be extended for up to 10 years and the deadline for applying for all loan schemes is being extended to the end of this year.
Businesses that previously utilised the VAT deferral scheme can now spread the repayment of the deferred VAT bills over 11 months.
VAT shall remain at 5% for hospitality and tourism business until the end of March 2021.
At the time of writing this the Chancellor is still answering questions from MPs in the House of Commons, so the full details of the various measures he has announced are not yet available.
Once the formal Press Release, guidance and any draft legislation is released, we shall review it thoroughly and provide further updates / clarity.
Support for Employers
The COVID-19 lockdown restrictions and various government schemes being introduced by the UK government 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 out clear guidance to assist you to comply with your legal obligations.
Today’s announcements from UK Prime Minister Boris Johnson, which was for the most part mirrored by Scotland’s First Minister, outlined a number of new lockdown restrictions for people and businesses throughout England and Scotland.
The new restrictions include pubs, bars and restaurants being restricted to table service only, 10pm curfews for hospitality venues, more rigid rules for wearing face coverings and in Scotland, a nationwide ban on visiting other people’s homes, except for those living alone, or alone with children, who form extended households, couples who do not live together, or to tradespeople or for the provision of informal childcare – such as by grandparents.
What Does Today’s Announcement Mean for Non-Essential Offices?
Today’s announcement has left many Employers with non-essential offices that have only recently reopened and who have just welcomed staff back to work wondering whether they need to again shut their offices, at a time where the CJRS (Furlough Scheme) is imminently due to end and they are only just starting to get back on track.
In Scotland, the guidance from the Scottish Administration, which is, “everyone who can work from home should continue to do so”, has not changed since lockdown restrictions were first introduced.
In England, today’s guidance changed to, “office workers are being told to work from home again if possible.”
Do Non-Essential Offices Now Need to Close?
In short, NO. There is nothing in the legislation and/or guidance that says they cannot remain open and there is no reference to non-essential offices in Schedule 1 of the Regulations explicitly requiring them to close.
Accordingly, the decision to keep non-essential offices open is entirely in the hands of Employers.
What Does the Law Say About Non-Essential Offices?
In Scotland, the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 sets out the legal requirement to close premises and businesses during the emergency period.
Part 1 of these Regulations, states that the ‘emergency period” starts when these Regulations come into force and ends in relation to a restriction or requirement imposed by these Regulations on the day and at the time specified in a direction published by the Scottish Ministers terminating the requirement or restriction.
Part 1 of the Regulations also sets out the requirement for a review and termination of restrictions, namely:
Scottish Ministers must review the need for restrictions and requirements imposed by these Regulations at least once every 21 days.
As soon as the Scottish Ministers consider that any restriction or requirement set out in these Regulations are no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in Scotland with coronavirus, the Scottish Ministers must publish a direction terminating that restriction or requirement.
Part 2 of the Regulations sets out the requirement to close premises and businesses and Schedule 1 (Parts 1, 2 and 3)sets out those premises and business that were/are required to close during lockdown.
Part 3, Regulation 5 sets 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 under regulation 8(4).
Part 3, Regulation 6 sets out the restrictions on gatherings in public places, which during the emergency period was limited to no more than two people, subject to certain exceptions.
So, following today’s announcements the official guidance for non-essential offices appears unchanged however, what is clear from the legislation is the following:
The restrictions set out in Part 3, regulation 5 and 6 have now been relaxed and there are no longer restrictions on travelling within the UK.
Indoor non-office workplaces can reopen if guidance on physical distancing and other hygiene measures are in place. This includes places like factories, warehouses and labs.
“Non-essential offices” is NOT listed in Schedule 1 of the Regulations.
Considerations for Employers Choosing to Keep Offices Open
Employers choosing to remain open must consider carefully the following questions:
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 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?
Employers who can answer yes to any of the above questions and who decide to keep their offices open must continue to follow any sector specific guidance and where there is no sector specific guidance, they should ensure that as a minimum they take the following steps:
Continue to assess the risks to yourself, your employees, your suppliers and your customers. If you employ 5 or more employees, this must be recorded in writing and if you employ 50 or more employees, you must publish your risk assessment.
Ensure you have in place all required infection and control measures, which could include:
Cleaning more often. Increasing how often surfaces are cleaned, especially those that are being touched a lot. Asking staff to use hand sanitiser and wash their hands frequently.
Asking customers/visitors to the office to wear face coverings.
Making sure everyone is social distancing. Make it easy for everyone to do so by putting up signs or introducing a one-way system that staff/visitors can follow.
Increasing ventilation by keeping doors and windows open where possible and running ventilation systems at all times.
Turning people with coronavirus symptoms away. If a staff member (or someone in their household) or a customer/visitor to the office has a persistent cough, a high temperature or has lost their sense of taste or smell, they should be isolating.
Employers should be prepared to be flexible given the likelihood that COVID-19 will remain a risk for the foreseeable future and a resurgence in infections may result in them facing further lockdown restrictions. It is important also to remember that staff may have legitimate reasons for not wanting to remain at work, such as:
being or living with a “clinically extremely vulnerable’ or ‘clinically vulnerable’ person.
Having childcare issues if children are sent home from school or nurseries or being unable to rely on normal childcare arrangements.
feeling extremely anxious about the risk posed by COVID-19 and fearful about remaining in the office.
expressing concerns relating to health & safety and what they perceive to be the employer’s failure to follow government guidance and/or implement appropriate measures and controls.
Employers will need to carefully consider feedback from staff, be prepared to be flexible and act reasonably when responding to staff feedback so as to avoid the risk of possible claims at the Employment Tribunal.
Support for Employers
The COVID-19 lockdown restrictions 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 out clear guidance to assist you to comply with your legal obligations.
As lockdown restrictions began to ease across the UK many employers started to consider reopening businesses and bringing staff back into workplaces, but with the recent spike in COVID-19 cases many are rethinking their position.
While the UK government called for a coordinated approach to the lifting of lockdown measures, differences have emerged between the four parts of the UK. The devolved administrations in Wales, Scotland and Northern Ireland have made their own assessments on lifting measures in their countries and each has released lockdown in different stages.
It should also be noted that, even as nationwide lockdown measures have been lifted, local outbreaks have necessitated reactive measures to be implemented to control the rate of transmission of COVID-19 on a regional or local basis.
This article has been prepared to anticipate and address issues that employers may face as the lockdown measures that have affected their businesses and workforces are eased, takes account of government guidance on when and how businesses can emerge from lockdown, and is intended to assist employers as they prepare for a phased return to work.
The Legal Requirement to Close Businesses & Premises in Scotland
There is an array of legislation which deals with the various issues that are likely to arise as a result of the COVID-19 pandemic:
The Coronavirus Act 2020
The Coronavirus (Scotland) Act
The Coronavirus (Scotland) (No.2) Act (the Act)
The Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 (SSI 2020/103) (Principal Regulations)
The Health Protection (Coronavirus) (Restrictions) (Scotland) Amendment (No 10) Regulations 2020
The Statutory Sick Pay (General) (Coronavirus Amendment) (No 3) Regulations 2020 (SI 2020/427)
The Employment Rights Act 1996
The Health & Safety at Work etc. Act 1974
The workplace guidance for Scotland differs from the English equivalent so it is important that the Scottish guidance is considered where the employer operates in Scotland. A UK-wide employer cannot assume that following the guidance applicable in England will meet the Scottish requirements.
In Scotland, the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 sets out the legal requirement to close premises and businesses during the emergency period.
Part 1 of these Regulations, states that the ‘emergency period” starts when these Regulations come into force and ends in relation to a restriction or requirement imposed by these Regulations on the day and at the time specified in a direction published by the Scottish Ministers terminating the requirement or restriction.
Part 1 of the Regulations also sets out the requirement for a review and termination of restrictions, namely:
Scottish Ministers must review the need for restrictions and requirements imposed by these Regulations at least once every 21 days.
As soon as the Scottish Ministers consider that any restriction or requirement set out in these Regulations are no longer necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in Scotland with coronavirus, the Scottish Ministers must publish a direction terminating that restriction or requirement.
Part 2 of the Regulations sets out the requirement to close premises and businesses and Schedule 1 (Parts 1, 2 and 3) sets out those premises and business that were/are required to close during lockdown.
Part 3, Regulation 5 sets 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 under regulation 8(4).
Part 3, Regulation 6 sets out the restrictions on gatherings in public places, which during the emergency period was limited to no more than two people, subject to certain exceptions.
Emerging from Lockdown in Scotland
At the early stages of the pandemic, the Scottish Administration established it’s ‘Route Map’ for the easing of lockdown restrictions in Scotland. This Route Map comprises 4 phases.
Phase 1: Commenced 28 May
Phase 2: Commenced 18 June
Phase 3: Commenced 9 July
Phase 4: TBC
On 9 July Scotland moved to Phase 3 and regular 3-week reviews have been undertaken since then to determine what further restrictions, if any, can be eased. In their latest assessment of the status of the pandemic, the Scottish Administration has determined that Scotland does not yet meet the criteria for progressing to Phase 4 of the “Route Map”.
The latest guidance and measures from the Scottish Administration, which was last updated on 14 September 2020, came into effect immediately and extends for at least 6 months, unless revoked, but it did NOT impose any new restrictions on businesses and premises not already covered by existing guidance.
Accordingly, those business that must remain closed under the current regulations remain as follows:
soft play centres
nightclubs
indoor theatres and concert halls
Businesses and Premises That CAN Reopen in Scotland
Since 24 August 2020 various businesses and premises have been able to reopen as part of the progression of Phase 3 of the “Route Map”. This includes:
Outdoor contact sports (all ages) can resume following guidance of relevant sports bodies.
Outdoor seated live events and outdoor open space live events – with physical distancing, enhanced hygiene, and restricted numbers – following guidance. Work will be undertaken with the sector on options for larger pilot events.
Driving lessons can resume – following guidance.
Child contact centres can re-open – following guidance.
Face-to-face advice services, including Citizens Advice, can resume – following guidance.
Bingo halls can re-open with physical distancing and following guidance.
Amusement arcades and casinos can re-open following guidance (incl. enhanced hygiene).
Snooker/pool halls and indoor bowling can re-open – following guidance (incl. enhanced hygiene).
Funfairs – both static and travelling – can re‑open, following guidance.
Gyms (indoor) can re-open – following guidance.
Swimming pools can re-open – following guidance.
Indoor sports courts can reopen – following guidance, incl. skating, dance studios: Children (0-12) years can resume all activity; adults and young people (12+) can resume non-contact activity only.
Indoor activities for children and young people (unregulated) can resume subject to guidance that will vary by activity. Indoor youth work can resume for young people in line with guidance.
So, Can Non-Essential Offices in Scotland Reopen?
The official Scottish Administration website explicitly states that, apart from those businesses and premises that must remain closed (listed above), it is not compelling other businesses to close, however, it also states that remote working should remain the default position for those who can do so.
The Scottish First Minister was quoted as saying, “A full return to office working, given the numbers involved, would significantly increase the risk of indoor transmission. It would also make buses and trains significantly busier and increases transmission risks there too. Our conclusion therefore is that a return to working in offices, unless that work is essential and cannot be completed at home, presents too great a risk at this time”.
The official guidance therefore appears to be somewhat unclear when it comes to the reopening of non-essential offices. However, what is clear from the legislation is the following:
The restrictions set out in Part 3, regulation 5 and 6 have now been relaxed and there are no longer restrictions on travelling within the UK.
Indoor non-office workplaces can reopen if guidance on physical distancing and other hygiene measures are in place. This includes places like factories, warehouses and labs.
“Non-essential offices” is NOT listed in Schedule 1 of the Regulations.
So, can non-essential offices reopen? In short, YES. There is nothing in the legislation and/or guidance that says they cannot reopen and no reference to non-essential offices in Schedule 1 of the Regulations explicitly requiring them to remain closed. Therefore, the decision to reopen non-essential office is entirely in the hands of business owners.
What Should Employers Consider When Reopening Non-Essential Offices
When considering whether to reopen non-essential offices and bring staff back to work, it is important that Employers consider the following questions carefully:
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?
Once an Employer has decided to reopen its offices they should, in the very first instance, look for any sector specific guidance and follow it. Where there is no sector specific guidance, Employers should ensure that as a minimum, they take the following steps:
Assess the risks to yourself, your employees, your suppliers and your customers. If you employ 5 or more employees, this must be recorded in writing and if you employ 50 or more employees, you must publish your risk assessment.
Consult with your employees before you reopen – this is a legal requirement.
Put in place infection and control measures.
After re-opening, keep checking and reviewing.
Emerging from Lockdown in England
For England, the UK Government’s Recovery Strategy was published on 11 May 2020. The “cautious roadmap” which was intended to ease existing lockdown measures in a safe and measured way included a step-by-step approach to lifting restrictions on businesses.
On 17 July 2020, the UK Government published the next chapter in our plan to rebuild: The UK Government’s COVID-19 recovery strategy. This set out the next stages of the government’s plan following the measures announced in the initial Recovery Strategy through which the government hopes to see a return towards normality in Spring 2021. The next stages, which will apply in England are subject to the caveat that a resurgence of COVID-19 may mean that they cannot be followed safely (the government is preparing for different scenarios). The government warns people and businesses to be prepared for the eventuality that the timetable for reopening is paused, or for changes to be reversed in a targeted way, to respond to new outbreaks. However, the government will only do this if absolutely necessary.
From 1 August 2020, the UK Government took the following steps in England:
Employers were given more discretion on how they ensure employees can work safely. While working from home is one way to do this, workplaces can also be made safe by following COVID-19 Secure guidelines.
Most remaining leisure settings (bowling, skating rinks and casinos) could reopen in accordance with COVID-19 Secure guidelines. However, particularly high-risk activities and settings such as nightclubs will not reopen at this stage but will be kept under review.
Subject to the success of pilots, indoor performances to a live audience will restart in accordance with COVID-19 Secure guidelines.
All close contact services resumed (including any treatments on the face such as eyebrow threading or make-up application) with steps taken to ensure this can be done as safely as possible and in line with COVID-19 Secure guidelines.
Pilots were undertaken in venues with a range of sizes of crowds, particularly where congregating from different places, including sports stadia and business events. These will be evaluated to inform future decisions on any further relaxation of the rules. If progress is made in line with expectations, pilots will expand to build up to and prepare for a full, socially distanced return in the autumn.
Schools, nurseries and colleges reopened for all children and young people on a full-time basis.
Until 9 September 2020, the COVID-19 Secure guidelines applicable in England weresupported by five key steps to working safely which employers needed to implement. They were:
Carry out a COVID-19 risk assessment
Develop cleaning, handwashing and hygiene procedures
Help people to work from home
Maintain two metre social distancing, where possible
Where people cannot be two metres apart, manage transmission risk
On 9 September 2020, as part of an attempt to simplify the COVID-19 Secure guidelines, the five steps to working safely were withdrawn by the government. However, since the matters covered by the five steps to working safely are still dealt with in the COVID-19 Secure guidelines for each workplace setting (see Application of COVID-19 Secure guidelines in specific workplace settings), their withdrawal does not significantly affect an employer’s obligations under the guidelines.
However, between 9 and 11 September 2020, a set of priority actions to protect staff and customers were added to each of the workplace specific COVID-19 Secure guidelines.
The priority actions contain the following list of seven steps which are consistent across all workplace settings:
Complete a COVID-19 risk assessment. Share it with staff.
Clean more often. Increase how often surfaces are cleaned, especially those that are being touched a lot. Ask staff and customers to use hand sanitiser and wash their hands frequently.
Ask customers to wear face coverings in any indoor space or where required to do so by law. That is especially important if customers are likely to be around people they do not normally meet.
Make sure everyone is social distancing. Make it easy for everyone to do so by putting up signs or introducing a one-way system that customers can follow.
Increase ventilation by keeping doors and windows open where possible and running ventilation systems at all times.
Take part in NHS test and trace by keeping a record of all customers for 21 days. From 18 September, this will be enforced in law (see Keeping records of staff and customers).
Turn people with coronavirus symptoms away. If a staff member (or someone in their household) or a customer has a persistent cough, a high temperature or has lost their sense of taste or smell, they should be isolating.
As well as these seven steps, the COVID-19 Secure guidelines for each workplace setting contain a further set of priority actions which are tailored specifically to the relevant workplace.
These are different in each set of guidelines but cover matters such as encouraging the use of contactless payments, reducing crowding, limiting the handling of goods or crockery and cutlery, and lowering background noise.
Typical Challenges Employers Might Face When Reopening Offices
With many staff either being furloughed or working remotely for so long, informing them they are required to return to work may present some challenges, such as:
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 until nurseries reopen.
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 will depend on the 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.
Conclusion
Employers should be prepared to be flexible as they put measures in place given the likelihood that COVID-19 will remain a risk for the foreseeable future and resurgence in infections may result in them facing further lockdowns. It is important also to remember that:
The COVID-19 pandemic advice from the UK Government and the Scottish Administration is continually changing.
The published government / administration guidance does not, except where explicitly stated otherwise, supersede existing employment legislation so it is important to seek appropriate legal advice, where necessary.
It is unclear how long the current level of restrictions might last. The fact the Furlough Scheme comes to an end on 31 October presents further challenges for employers and individuals alike.
The longer-term implications of the COVID-19 pandemic are yet unknown, but it is clear that they will be felt for months, and possibly years to come.
Support for Employers
The COVID-19 pandemic an emerging from lockdown continues to present numerous and complex challenges for Employers.
If you are an Employer and require advice and support on any employment matters, call us now on 0800 612 4772 or Contact us via our website and we will set out clear guidance to assist you to comply with your legal obligations.
In what many have described as a ‘bizarre’ decision, Glasgow City Council (GCC) has decided to defund a series of advice agencies in Glasgow at a time when demand for advice and support for issues relating to employment, debt, housing and poverty are likely to be at their highest.
The planned cuts from Glasgow City Council will result in the closure of five of the eight Citizens Advice Bureaux in Glasgow, including Glasgow Central CAB, Bridgeton CAB, Easterhouse CAB, Parkhead CAB and Castlemilk CAB and the funding proposals could see further cuts to the remaining three CABs including Glasgow North West, Drumchapel, and Pollok.
We understand the cuts would likely take effect on 1 October 2020 as the city faces a looming employment crisis with the furlough scheme set to finish by the end of October and that the Govan Law Centre will also be impacted.
Across the Citizens Advice Network in Scotland last year, advice provided on employment, housing, and legal proceedings together accounted for a little over 122,000 pieces of advice provided during and demand for advice with employment issues ranked 3rd overall and in Glasgow, the CAB gave advice on employment issues 1,924 times.
Notwithstanding the significant challenges the COVID-19 pandemic has created for business owners throughout the UK, it is important to remember that the various pieces of COVID specific legislation that have been introduced do not overwrite existing employment legislation and it is important, therefore that business owners remain mindful of their duties and responsibilities as an employer.
There are a number of variables related to the effects of the coronavirus pandemic that could give rise to a variety of claims from employees, such as:
Constructive dismissal
Unlawful discrimination
Unfair dismissal
Breach of privacy
Get Support Now
Employment Law Services (ELS) offers free, impartial and confidential advice across a range of issuesI. f you are experiencing any employment issues and require advice and support, Contact Us today on 0800 612 4772 or Book a Free Consultation online.
The purpose of the Government’s Job Retention Scheme was to ensure that employers retain and continue to pay staff during the lockdown, but as the impact of COVID continues to bite, are redundancies inevitable?
Is Furlough just postponing the inevitable?
Since April staff have been entitled to benefit from a paid period of leave, with the Government paying up to 80% of their salary, up to a maximum amount of £2,500 per month.
For the 9.6 million employees who have benefitted from the furlough scheme, this has been a financial life line. No one wants to have to worry about their job security at a time when people are already concerned for their health.
The Chancellor, Rishi Sunak, announced at an emergency budget in July that employers who take back to work any employee who has been furloughed will benefit from a bonus of £1,000 per employee.
It does seem that as the furlough scheme winds down there is a real possibility that for some employees who have been furloughed could be on route to redundancy.
As the furlough scheme starts to wind down, employers are now having to consider the fact that as of August they will have to pay National Insurance and pension contributions for furloughed staff. For businesses who have remained closed and been unable to trade this is a financial burden which could lead them to consider how they can afford to go forward.
As of next month the benefits under the Job Retention Scheme will continue to reduce and wind down to 60% eventually. Employers will now face the prospect of paying a top up payment of 10% in September and 20% in October to make up employees’ wages to 80%.
For many businesses, especially small businesses, who have not been able to trade during lockdown, retaining staff simply might not be an option.
In these situations furlough, could possibly, be a route to redundancy. It really all does depend on factors such as the nature of the employer’s business, how the business has been impacted by lockdown and how the business anticipates it is likely to recover after lockdown.
What is redundancy?
Redundancy is defined as circumstances where the termination of employment is attributable to the fact that the employer has ceased, or intends to cease to carry on business for the purpose of which the employee was employed.
Essentially where a business no longer requires work of a particular kind, or has ceased or expects to cease or diminish a particular type of work redundancy might also apply.
Any redundancy has to be genuine and an opportunistic employer cannot simply use the winding down of furlough as a way to get rid of staff.
In order to be able to justify a redundancy dismissal the employer does need to show that there was a genuine downturn in work that the employee was employed to do and as a result of this it is not possible for that employee to continue to be employed.
Although there are businesses where there will have been a downturn in work, wholly attributable to the lockdown, an employer who simply uses the ending of furlough to make staff redundant could be exposed to the prospect of an unfair dismissal claim.
While the Job Retention Scheme remains in place any employer choosing to make staff redundant really does need to be able to justify their decision. An employment tribunal would take a dim view of any employer who make redundancies as a knee jerk reaction.
Redundancy is a form of dismissal and if the employer doesn’t go through the correct process before deciding to make staff redundant, they could be exposed to the risk of an unfair dismissal claim or a discrimination claim.
The time limits for making a claim are short and any claim connected with redundancy must be brought in the Employment Tribunal within 3 months, minus a day, of the date on the event that you are complaining of.
Contact Us Today
If you find yourself in a situation where you have been advised by your employer that they want to bring the employment relationship to an end due to redundancy, the team at Employment Law Services (ELS) can help you. Call us now for a free consultation 0800 612 4772.
The coronavirus pandemic has had a severe impact on the economy and it is inevitable that redundancies will be on the rise, but getting this wrong could prove costly for Employers.
The Legal Definition of redundancy
Redundancy is defined as circumstances where the termination of employment is attributable to the fact that the employer has ceased, or intends to cease, to carry out business for the purposes of which the employee was employed.
If a business no longer requires work of a particular kind, then employees whose role it is to carry out that particular work could reasonably be dismissed by way of redundancy.
Where work of a particular kind had ceased, or is expected to cease or diminish then this can also lead to redundancy.
Consultation
An employer with more than 20 staff at risk of redundancy in one workplace has a legal obligation to consult with staff at least 30 days before any staff are dismissed.
Consultation and notice are completely separate. Consultation should cover the reasons for the proposals to make redundancies, identification of the job groups at risk and the number of staff who are likely to be covered by the proposals.
The employer should also identify the selection criteria being used to score the staff who are at risk. Timescales for the procedure and proposed termination dates should also be put to staff. Where there are 99 staff or more in one workplace consultation should begin at least 45 days before the proposed date of any dismissal, however the employer can chose to consult over a longer period should they wish to do so.
The consultation specifically should consider ways to avoid the redundancy, ways to minimise the number of staff being made redundant and ways to mitigate the impact of the dismissal.
It may seem strange, from an employer’s perspective, that there is a legal obligation to look at ways of avoiding the dismissals as part of the consultation process. However, in reality, staff on ground level can sometimes suggest better working practices which allow the number of staff being dismissed to be minimised.
Staff can mitigate the impact of the dismissal by using the consultation period to apply for another job.
As well as collective consultations, which take place through trade union representatives and workplace representatives, staff should also be offered individual consultations.
Failure to consult properly can leave the employer exposed to the risk of a protective award claim. Any employee who is made redundant without proper consultation can claim a protective award of up to 13 weeks’ pay, if 20 or more staff were made redundant in the same workplace.
How should an employer deal with redundancy?
There are certain steps that an employer must take before they decide to make anyone redundant.
They then need to identify a suitable pool for selection. The employer can identify the pool by identifying which jobs groups it needs to consider cutting head count in.
Depending on the nature of the business, it can be as easy as identifying a particular group of worker. However, the employer must carefully consider whether other staff who do not technically fall within the same job group should be included in the pool.
For example, interchangeable roles, or roles in different parts of the business which are broadly similar.
A selection criteria should be used to look at various elements of an employee’s work history and performance. The selection criteria should be reasonable and objective. It can include elements such as disciplinary record, skills and qualifications, time keeping, absence levels and suitability to carry out future work demands for the employer.
The scoring should be used objectively, and not just as a tick box exercise.
It is important that the scoring is applied in a way that does not discriminate against the individual being scored. For example, time spent on maternity leave should not be recorded as an absence which brings the scoring down. Similarly, any absence which is related to a disability should not be included.
The employer should be mindful of using scoring criteria which might cause indirect discrimination. For example, using length of service as a scoring criteria might be discriminating against younger members of staff are are likely to have shorter service. As such, an approach of last in, first out should can leave an employer exposed to the risk of a discrimination claim.
Notice Periods
Notice periods are sometimes set out in an individual’s contract of employment. However, in the absence of this statutory notice periods would apply. These are as follows:
1 month – 2 years’ service – 1 weeks’ notice
2 years’ service or more – 1 weeks’ notice for each year of service, capped at a maximum of 12 weeks.
Notice is separate from consultation and the employer must have started the consultation process before they can serve notice. The employee should either be allowed to work up until the end of their notice period or should be paid in lieu of notice.
Redundancy Pay
Statutory redundancy pay has to be paid to all employees who made are redundant after been employed for 2 years or more. Staff who have less than 2 years’ service are not entitled to a statutory redundancy payment.
Statutory redundancy pay should be paid based on an employee’s individual weekly pay rate and is capped at a maximum of £538 per week. The weekly entitlement amount for each full year of service are as follows:
0.5 weeks’ pay for each year of service, for staff aged 22 and under
1 weeks’ pay for each year of service, for staff aged 22-41
1.5 weks’ pay for each year of service, for staff aged 41 and over
Statutory redundancy pay is capped at 20 years’ service.
An individual’s contract of employer might give them the right to an enhanced redundancy payment, which is more generous than the statutory amount. If this is the case, the employer must make the redundancy payment based on the contractual amount.
Other payments
Employees being dismissed by way of redundancy are entitled to any accrued but untaken holiday pay which is due at their termination date.
They are also entitled to receive their normal salary up until their termination date.
Employees who do not receive all of the payments that they are entitled to can pursue a claim for unlawful deduction of wages in the Employment Tribunal.
Is redundancy always fair?
Redundancy is a form of dismissal and if it isn’t considered correctly it can give rise to a claim for unfair dismissal or a discrimination claim.
Employment Tribunals are generally of the view that scoring criteria must be objective and can’t be scoring should not be reached in a haphazard way. An employer really needs to be able to justify each score for the individual employee.
Any scoring criteria which unfair or unreasonable in a way which is glaringly obvious will most likely be criticised by an Employment Tribunal.
However, what the Employment Tribunal won’t do is make any kind of judgment on what the employee, or others who they compare themselves to, should have scored. It is not the role of the Tribunal to say that one employee should have been made redundant instead of another.
Where an Employment Tribunal makes a finding of unfair dismissal or discrimination the employee is likely to be awarded compensation.
Time Limits
The time limits for making a claim in the Employment Tribunal are 3 months, minus a day, from the date that you are made redundant, the date that you did not received a payment you were owed, or the date of any act of discrimination.
Support for Employers
The COVID-19 pandemic and associated furlough scheme continues to present numerous and complex challenges for Employers.
If you are an Employer and require advice and support on extending full furlough, introducing flexible furlough, or are contemplating a restructure/reorganisation and/or redundancies as a result of the ongoing COVID 19 restrictions, call us now on 0800 612 4772 or Contact us via our website and we will set out clear options for you to help ensure you comply with your legal obligations.
If you find yourself in a situation where you have been advised by your employer that they want to bring the employment relationship to an end and are issued with a Settlement Agreement and told that you have a set timescale in which to make a decision, the team at Employment Law Services (ELS) can help you.
What is a settlement agreement?
A settlement agreement is a mechanism which can lawfully be used to terminate an individual’s employment. A settlement agreement is essentially a contract which ends terminates an employee’s employment. Under the terms of the settlement agreement the employee will be offered a sum of money and will agree to give up certain rights in exchange for that sum of money.
Why Are Settlement Agreements Offered?
Settlement agreements can be offered under various circumstances. Some employers will offer a settlement agreement as standard when making an employee redundant. Employees who are going through disciplinary proceedings or grievance procedure can be offered a settlement agreement. Sometimes circumstances, such as a clash of personalities or the breakdown of a working relationship are enough to terminate an individual’s employment by way of settlement agreement.
The main reason for the employer to offer the settlement agreement is to cover themselves against the risk of an employee bring a claim against them, by essentially buying out the employees right to pursue a claim.
While a settlement agreement can be offered in circumstances where the employer might be at risk of facing an employment tribunal claim, a settlement agreement can also be used simply to get rid of a problematic employee.
What are Protected Discussions?
Settlement discussions should be conducted on the basis of a ‘without prejudice’ discussion, which is sometimes referred to as a protected discussion. At this discussion the employer does have to conduct themselves in a reasonable manner and cannot force or put pressure on the employee to take the settlement agreement.
The employer should not conduct the discussion in a way which discriminates against the employee. Any discriminatory behaviour, or improper behaviour, can result lead to a claim against the employer.
An employer should not assume that everything said at a protected discussion is “protected” in the sense that it won’t come back to bite them in the form of an employment tribunal claim. Any improper conduct or discrimination might lead to the employee deciding to resign and bring a claim for constructive dismissal.
If the employer suggests during discussion that the employee is likely to be dismissed if they don’t accept the settlement and go ahead with any disciplinary, then there is a real possibility that the employee can show that their dismissal was predetermined.
What’s In A Settlement Agreement?
The settlement agreement will normally have a list of all possible employment tribunal claims that an employee could bring. As well as that some employers might try to cover unrelated matters or future claims. An employee cannot reasonably be expected to sign away rights to future claims, for example a latent personal injury claim for an employee working with asbestos will potentially be a valuable claim for an illness that presents itself later in life. Similarly, a miscalculated pension which might become apparent once an employee cannot be covered by a settlement agreement.
Appeals Courts have taken the view that the inclusion of wording such as “full and final settlement” and “settlement of all claims” is simply not the catch all approach that the drafting Lawyer would want it to be.
However, the average employee is unlikely to be able to afford an to bring an appeal in the Appeal Court and it is much better to get proper advice on any settlement agreement that you have been offered before signing.
Fixed Fee Advice On Settlement Agreements
At Employment Law Services (ELS) our experts can offer fixed rate detailed advice on your settlement agreement. We can negotiate a settlement which protects your rights and ensures that you get the highest possible settlement. There are no set rules on what an employee should be paid under their settlement, however we can offer a free assessment and advice you on how much we think your settlement should be.
Contact Us Today
If you have been offered a Settlement Agreement by your employer, call us on 0141 611 9785 or Book a Free Consultation now.
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