2020 | Page 5 of 8 | Employment Law Services (ELS) LTD

Ending Furlough | What Employers Need to Know

Posted on 21 May 20208 June 2023 by @deliver_els

With lockdown measures already relaxed in England, Wales and Northern Ireland, and Scotland due to announce its plan to come out of lockdown on Thursday 21 May 2020, many Employers are starting to plan for ending furlough, but what steps do Employers need to take?

What Employers Need to Know

Before ending furlough Employers will first need to undertake a risk assessment to ascertain what changes in work practices might be necessary to comply with new health and safety requirements. Where changes to work practices are necessary to comply with health and safety requirements, Employers will need to consult with the affected employees.

Employees not in groups represented by a trade union must be provided with information and consulted under the Health and Safety (Consultation with Employees) Regulations 1996 (SI 1996/1513) (Consultation with Employees Regulations), either through elected representatives or directly.

With the furlough scheme being extended to the end of October 2020, Employers now have more time to assess their staffing requirements and determine when they may wish to end furlough and how this might look operationally. Ending furlough will look different for each employer; some will expect employees to return to their place of work when furlough ends whereas others may introduce home working initially and adopt a phased approach for employees returning to the workplace.

Whether the employer can dictate the end of furlough will depend on what has been explicitly or implicitly agreed between the parties. However, the absence of an explicit right to bring furlough to an end and require employees to return to work is unlikely to be an issue in most cases because employees are likely to be in receipt of less pay while they are furloughed and may be eager to return to work given the difficulties in securing alternative employment while the COVID-19 crisis continues.

An employer should give any required period of notice specified in the furlough agreement. If no period of notice was specified, the employer should aim to give reasonable notice, depending on the particular circumstances of both the employer and the employee.

The Acas guidance states that there is no minimum period for furlough, but employers should talk to staff about any plans to end furlough as early as possible and encourage staff to raise any concerns or problems about returning to work. Employees and workers should be ready to return to work at short notice, but employers should be flexible where possible.

Support for Employers

If you are an Employer and require advice and support on the various steps you need to take to end furlough correctly, call us now on 0800 612 4772 or Contact us via our website and we will set out a clear, step by step plan you can follow to to help ensure you comply with your legal obligations.

Coronavirus Statutory Sick Pay Scheme

Posted on 19 May 20207 June 2023 by @deliver_els

The coronavirus Statutory Sick Pay Scheme launches online on 26 May 2020, which will enable employers with less than 250 employees, or tax agents acting on behalf of employers, to claim back coronavirus-related Statutory Sick Pay.

Employers are eligible to use the scheme if:

they’re claiming for an employee who’s eligible for sick pay due to coronavirus
they had a PAYE payroll scheme in operation before 28 February 2020
they had fewer than 250 employees across all PAYE schemes on 28 February 2020
they’re eligible to receive State Aid under the EU Commission Temporary Framework.

The repayment will cover up to two weeks of the applicable rate of SSP, and is payable if a current or former employee was unable to work on or after 13 March 2020 and entitled to SSP, because they either:

have coronavirus
are self-isolating and unable to work from home
are shielding because they’ve been advised that they’re at high risk of severe illness from coronavirus.

For more information about eligibility and how employers can prepare to use the scheme, Employers can visit GOV.UK and search ‘Check if you can claim back Statutory Sick Pay paid to employees due to coronavirus (COVID-19)‘.

Support for Employers

If you are an employer and require advice and support on any employment related matter, COVID-19 or otherwise, call us now on 0800 612 4772 or Contact us via our website.

Furlough Scheme Extended to October 2020

Posted on 12 May 20201 November 2023 by @deliver_els

The Chancellor Rishi Sunak has today announced the Coronavirus Job Retention Scheme (CJRS) will be extended for four months, until the end of October 2020 but in doing so, he said he will ask companies to start sharing the cost of the scheme from August 2020.

Furlough Scheme Extended to October 2020

Until the end of July, there are no changes, which will be warmly welcomed by the devolved administrations of Scotland, Wales and Northern Ireland who, unlike England, have not yet decided not to relax lockdown restrictions.

Although the scheme will continue for all sectors and regions until October, the Chancellor announced that from August to October 2020, the scheme will continue on the basis furloughed employees can be brought back part-time.

Full details will be published by the end of May.

With this additional clarity form the UK government, now is the ideal time for employers to start planning what a return from furlough might look like. To assist Employers, we have added a new section to our COVID-19 Furlough FAQs – RETURNING TO WORK FROM FURLOUGH.

Support for Employers

If you are an employer and require advice and support on any employment related matter, COVID-19 or otherwise, call us now on 0800 612 4772 or Contact us via our website.

Disciplinary & Grievance Procedures During COVID-19 Lockdown

Posted on 7 May 20207 June 2023 by @deliver_els

In early May 2020, Acas published Disciplinary and grievance procedures during the coronavirus pandemic which states that existing employment law and the Acas Code of Practice on Disciplinary and Grievance Procedures (the Acas Code) continue to apply during the COVID-19 pandemic.

Disciplinary & Grievance Procedures During COVID-19 Lockdown

The guidance notes that it is for an employer to decide if it would be fair and reasonable to carry on with, or start, a disciplinary or grievance procedure while an employee is furloughed, social distancing and other public health guidelines are being followed, or an employee is working from home. It suggests some practical measures that employers can take, depending on whether a workplace is open or not.

The guidance states that a furloughed employee can take part in a disciplinary or grievance investigation or hearing however, the participation must be voluntary (an individual must be “doing it out of their own choice”) and take place in accordance with current public health guidance.

Employers Must Proceed Cautiously

It is unclear how the Acas guidance should be read alongside the HMRC guidance and the Treasury direction, which require employees to cease all work in relation to their employment during furlough. Arguably, acting as a meeting chairperson, notetaker or even a witness could amount to “work” for the purposes of paragraph 6.1 of the Treasury direction and is providing a service for the employer contrary to the Employers’ CJRS guidance. Accordingly, following the Acas guidance could mean that an employer is unable to claim for reimbursement of an employee’s wages under the CJRS.

In practice, similar principles will apply to those that are relevant when an employee is on sick leave.

We provide detailed guidance in our Furlough Scheme FAQ’s, in the “Activities During Furlough” section.

Support for Employers

If you are an employer and require advice and support on any employment related matter, COVID-19 or otherwise, call us now on 0800 612 4772 or Contact us via our website.

Furlough Scheme: An Important Change to Eligibility for TUPE Transferees

Posted on 4 May 20208 June 2023 by @deliver_els

On 30 April 2020, HMRC published another updated version of its guidance on the Coronavirus Job Retention Scheme which will directly affect the ability of employers who inherited employees through the operation of a TUPE transfer between 28 February and 19 March 2020.

Furlough Scheme: An Important Change to Eligibility for TUPE Transferees

Under the current version of the Employers’ CJRS guidance , an employer can claim under the CJRS in respect of employees who TUPE transferred after 28 February 2020. However, between 15 April and 30 April 2020, the guidance was updated to state that an employer who inherited employees through the operation of a TUPE transfer prior to 19 March 2020 would be in the same position as any other employer in terms of eligibility.

That change put employers who inherited employees close to the 19 March eligibility cut-off at a disadvantage because eligibility under the CJRS is subject to the existence of an RTI submission notified to HMRC on or before 19 March 2020. If the inherited employees’ pay was processed for the first time in the March payroll towards the end of the month, which may have been the case where, for example, there was a TUPE transfer during early March, then the cut-off date for an RTI submission of 19 March 2020 may not be met, effectively creating a ‘black hole’ for employees who TUPE transferred between 28 February and 19 March and who weren’t notified to HMRC on an RTI submission before 19 March 2020.

Welcome Furlough News for TUPE Transferees

On 30 April 2020, the Employers’ CJRS guidance was updated to change the relevant date for TUPE transfers from 19 March 2020 back to 28 February 2020 (the date given in the guidance until it was updated on 15 April 2020 to refer to 19 March 2020).

The terms of the Treasury’s Direction, paragraphs 9.1 to 9.3 which still refer to 19 March 2020 as the relevant date, will also need to be amended to give legal force to this change but given the updated guidance for employers on checking eligibility to claim now states that “a new employer is eligible to claim under the CJRS in respect of the employees of a previous business transferred after 28 February 2020 if either the TUPE or PAYE business succession rules apply to the change in ownership.” this should now be a formality.

Support for Employers

If you are an employer and require advice and support on any employment related matter, COVID-19 or otherwise, call us now on 0800 612 4772 or Contact us via our website.

Is Employee’s Written Agreement to be Furloughed Required

Posted on 21 April 20209 June 2023 by @deliver_els

On 17 April 2020, we highlighted that the latest government guidance made clear that, in addition to written confirmation by an employer, the employee’s agreement to be furloughed must also be recorded in writing in order to be eligible to claim under the CJRS and that it would not be sufficient to rely on implied consent.

Is Employee’s Written Agreement to be Furloughed Required

This position on an employee’s agreement to be furloughed in writing was re-enforced in the Treasury’s Direction to HMRC, which is the legislative source of HMRC’s power to make payments under the CJRS. Paragraph 6.7 provides an employer can only reclaim the employee’s salary, amongst other things,:

“…if the employer and employee have agreed in writing (which may be in an electronic form such as an email) that the employee will cease all work in relation to their employment.”

Based on the Treasury’s Direction, the position seemed clear, right? Well, not exactly!

Since the CJRS was first announced, there have been six iterations of the HMRC Guidance, four of which predated the Treasury Direction. The first iteration simply required the employer to notify the employee in writing that they had to stop work (but did not require the employee to agree anything, and certainly not in writing). The second to fifth iterations added a requirement that the employer keep a copy of that written notification for five years but, again, said nothing about written agreement.

The sixth iteration, issued yesterday, states:-

“To be eligible for the grant employers must confirm in writing to their employee confirming that they have been furloughed. If this is done in a way that is consistent with employment law, that consent is valid for the purposes of claiming the CJRS. There needs to be a written record, but the employee does not have to provide a written response. A record of this communication must be kept for five years.” (emphasis added)

This latest iteration is quite clearly inconsistent with the Treasury Direction and has left many Employers confused and concerned, wondering which guidance they should follow – The Treasury Direction or the latest HMRC Guidance.

Officially, the Treasury Direction overrides the HMRC Guidance, but the Guidance shows the way that HMRC intends to interpret and apply the Direction and this latest iteration, which was published three days after the Treasury Direction, makes a clear and unmistakable statement that HMRC will not require evidence of the employee agreeing in writing to stay at home in order to allow a claim under the CJRS. In fact, HMRC seems to be quite happy to accept claims for reimbursement of 80% of salary without requiring evidence of the employee’s written agreement and there is nothing to suggest that HMRC is likely to change this approach.

Theoretically, HMRC could renege on what it has repeatedly said, and refuse to pay out to employers who cannot supply an employee’s written agreement to ceasing all work for the employer? However, if it did, it would be extremely vulnerable to a judicial review claim. The re-issue of the Guidance, subsequent to the publication of the Direction, which flatly contradicts the Direction, would make HMRC’s position very difficult if it subsequently sought to deviate from its previous Guidance to Employers.

If you have not yet furloughed employees but now intend to do so, you must comply with the Treasury Direction and secure written agreement. However, if you have already furloughed employees and simply notified them in writing that they have been furloughed, consent notwithstanding, it is probably best to leave things as they are.

Support for Employers

If you are an employer and require a written furlough agreement to ensure you are compliant and eligible to claim the furlough grant, call us now on 0800 612 4772 or Contact us via our website.

Written Agreement is Needed to Qualify for CJRS Grant

Posted on 17 April 202012 June 2023 by @deliver_els

The latest government guidance on the Coronavirus Job Retention Scheme (CJRS) now states that an employee can only be furloughed if the employer and employee have agreed in writing (which may be in an electronic form such as an email) that the employee will cease all work in relation to their employment”.

Written Agreement is Needed to Qualify for CJRS Grant

For quite some time now the Employers’ CJRS guidance has stated that any decision to furlough must be made with the agreement of employees and must be confirmed by employers in writing. This wording has not changed in the latest version.

However, what has changed is that the latest government guidance now states that an employee can only be furloughed if “the employer and employee have agreed in writing (which may be in an electronic form such as an email) that the employee will cease all work in relation to their employment” (para 6.7).

This latest guidance makes it clear that, in addition to written confirmation by an employer, the employee’s agreement to be furloughed must also be recorded in writing; it will not be sufficient to rely on implied consent.

Many employers will have already secured the written agreement of those employees they have furloughed and so will have complied with this latest provision.

However, many employers will have simply confirmed in writing their decision to furlough employees but not sought their express consent, perhaps because there was an express provision in the contract of employment to impose temporary layoffs, and many will have not confirmed anything in writing. For employers who fall into either of these categories, written agreement should be sought as soon as possible in order to qualify for the CJRS grant.

There does not appear to be any requirement for the written agreement to have taken place before an employee is furloughed, so arguably obtaining it after the event is still likely to be sufficient.

Support for Employers

If you are an employer and require a written furlough agreement to ensure you are compliant and eligible to claim the furlough grant, call us now on 0800 612 4772 or Contact us via our website.

UK COVID-19 Lockdown Extended

Posted on 16 April 202012 June 2023 by @deliver_els

At the daily No 10 briefing, Foreign Secretary Dominic Raab confirmed that Lockdown restrictions in the UK will continue for “at least” another three weeks

Mr Raab went on to say a review had concluded relaxing the measures would risk harming public health and the economy.

The extension of the UK lockdown will have both immediate and longer-term implications for UK Employers, many of which have effectively been shut down since the lockdown was first introduced on 23 March, but also for many who were perhaps holding off furloughing employees in the hope the restrictions would be relaxed sooner.

Today’s announcement comes on the back of yesterday’s update to HMRC’s guidance on the Coronavirus Job Retention Scheme, in which it was confirmed that the qualifying date, when the employee has to have been on the employer’s payroll, has changed from 28 February to 19 March 2020. This brings into scope a large number of people who fell outside the scheme because they had recently changed jobs. The 19 March date is just before the Chancellor announced details of the scheme, meaning it is still effective to prevent fraudulent claims (by businesses hiring ghost employees to claim furlough payments in respect of, as those ghost employees will not have been on PAYE on 19 March).

We have updated our Coronavirus Job Retention Scheme FAQs

HMRC have also published further details of how and when Employers can access the CJRS Online Portal.

The online claim service will be launched on GOV.UK on 20‌‌ April 2020 and the only way to make a claim is online – the service should be simple to use and any support you need will be available on GOV.UK; this will include help with calculating the amount you can claim.

HMRC have confirmed that Employers can make the claim themselves, even if they usually use an agent, and that claims will be paid within 6 working days.

Information Employers will need before they make a claim

The bank account number and sort code you’d like us to use when we pay your claim.

The name and phone number of the person in your business for us to call with any questions.

Your Self-Assessment UTR (Unique Tax Reference), Company UTR or CRN (Company Registration Number).

The name, employee number and National Insurance number for each of your furloughed employees.

The total amount being claimed for all employees and the total furlough period.

In addition, Employers will need to have the following before 20‌‌ April 2020:

A Government Gateway (GG) ID and password – if you don’t already have a GG account, you can apply for one online, or by going to GOV.UK and searching for ‘HMRC services: sign in or register’.

Be enrolled for PAYE online – if you aren’t registered yet, you can do so now, or by going to GOV.UK and searching for ‘PAYE Online for employers’.

The following information for each furloughed employee you will be claiming for:

* Name
* National Insurance Number
* Claim period and claim amount
* PAYE/employee number (optional)

If you have fewer than 100 furloughed staff – you will need to input information directly into the system for each employee

If you have 100 or more furloughed staff – you will need to upload a file with information for each employee; we will accept the following file types: .xls .xlsx .csv .ods.

Support for Employers

If you are an employer affected by any of the issues being created by the outbreak of Coronavirus and require further assistance and support, call us now on 0800 612 4772 or Contact us via our website.

HMRC Furlough Portal Goes Live on 20 April 2020

Posted on 10 April 20208 June 2023 by @deliver_els

HMRC have confirmed that the CJRS Portal will go live on Monday 20th April 2020 with the first reimbursements made on 30 April.

HMRC Furlough Portal Goes Live on 20 April 2020

You’ll need to provide the following to make a claim:

The bank account number and sort code you’d like us to use when we pay your claim.

The name and phone number of the person in your business for us to call with any questions.

Your Self-Assessment UTR (Unique Tax Reference), Company UTR or CRN (Company Registration Number).

The name, employee number and National Insurance number for each of your furloughed employees.

The total amount being claimed for all employees and the total furlough period.

The claim process will be online only, and you CAN’T do this via the telephone.

To make the claim you will need the following for each employee that has been furloughed in respect of the first claim period:

National Insurance Number
Salary
National insurance contributions made by the employer
Pension contributions made by the employer
Date the employee was furloughed from

Where you run your own payroll it might also be prudent to ensure you can access your Government Gateway account for PAYE as we assume it will be through this method that the claim will be made (still to be confirmed).

We would therefore suggest you start to pull together the required information now to be ready to make the claim quickly in due course.

Some other noteworthy Furlough Scheme updates:

HM Treasury sent an email to David Johnston MP, stating that employees who are TUPEd to a new employer after 28 February will be eligible for furlough.

HMRC Customer Support tweeted that it is possible to take annual leave when on furlough, and it must be paid at full pay.

The House of Commons Library (which issues briefing notes for MPs) issued FAQs on the Coronavirus Job Retention Scheme. It doesn’t say anything new, but it’s a useful summary of the furlough scheme.

We will continue to monitor this, and the various other COVID-19 issues arising, and keep you up to date as the situation progresses.

Support for Employers

https://employmentlawservices.com/free-employment-law-advice-for-covid-19-issues/

Free Employment Law Advice for COVID-19 Issues

Posted on 6 April 20208 June 2023 by @deliver_els

Get your COVID-19 related Employment Law and HR Questions answered for FREE by a reliable and trusted Employment Law Specialist.

Are you struggling to keep up with the rapidly changing information on the the myriad of issues the COVID-19 crisis has created, such as managing self-isolating and shielding employees, sick pay obligations, furloughing employees and other staff issues that are starting to arise with staff who have already been furloughed, laid off, or who are working from home?

Why not book a FREE 30 minute consultation with our Managing Director during which you can ask questions on any employment / HR issues your business is currently facing.

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