- To calculate the normal working hours for staff with fixed hours/pay, you take the number of hours worked in the pay period before 19 March 2020.
- To calculate the normal working hours for staff with variable pay, you take the higher of
- (a) the average number of hours worked in the tax year 2019 to 2020; or
- (b) the corresponding calendar period in the tax year 2019 to 2020.
UPDATE MAY 29 2020: The Chancellor announced details of how the government proposes to change the Job Retention Scheme (JRS). As yet, the Treasury Directive and Employers’ Guidance have not been updated and so the below is a summary of what was announced today. We will provide more details as they are released. From 1 July, ‘flexible furlough’ is being introduced, meaning employees will be able to work part-time and be furloughed part-time. This is a much needed amendment to the scheme and is being introduced earlier than previously planned. It will help those who have struggled with the all-or-nothing requirement of the current scheme and particularly where you have some work for your employees to perform but still require financial support under the JRS. Please note that 10 June 2020 will be the last day that employers can place employees on furlough – this date falls 3 weeks before the new scheme is introduced and is clearly to avoid employers who to date had not placed employees on furlough so as to benefit from the flexible furlough arrangement. From 1 August, employers will have to pay employee’s national insurance contributions and pension contributions, and can no longer reclaim them through the CJRS. From 1 September, the government will only reimburse 70% of salary (up to a maximum of £2,190 per month per employee). Employers are required to top-up to 80% (or more, depending on what the employer agreed with the employee). From 1 October, the government will only reimburse 60% of salary (up to a maximum of £1,875 per month per employee), and employers will continue having to top up to 80% (or more). As previously announced the furlough scheme will close entirely on 31 October 2020. We are receiving an increasing number of enquiries involving employees who are reluctant to return to the workplace after furlough due to health and safety concerns for themselves or members of their households. It is important to remember that being furloughed is not something an employee can request and if you have work for your employees to perform, and they do not fall into very specific categories where they are deemed unfit to work, they will not be entitled to continue being furloughed. Employees that refuse to return to work (and are not in receipt of a fit note qualifying them for SSP or a letter advising them to shield) will not be entitled to be paid and this absence will be designated as unauthorised which is a disciplinary offence. That said, each situation should be considered carefully before proceeding with any disciplinary action and much will depend on the COVID-secure measures you have introduced to protect your employees in the workplace. In addition, and as the current JRS comes to an end on 31 July, question arise regarding the restructuring of businesses to help control costs and future proof. Depending on the cashflow status of your business, if you are considering restructuring you may wish to consider utilising the JRS in its current format to offset a portion of your notice pay obligations. Notice pay must be paid at 100% of salary, even when the employee is on furlough. This is also the case with holiday pay – you are reminded that you can require your employees to take some of their accrued holiday during furlough, provided you pay it at 100% (claiming the 80% via the JRS) and give the employee double the notice of the leave you require them to take, i.e. two weeks notice to take one weeks leave. If you have chosen not to require staff to take holiday during furlough, and are concerned about a mass exodus once they are back working for you, we have mentioned before that the Working Time Regulations have been temporarily amended to allow employees to carry forward their leave for up to two years. The Chancellor’s announcement earlier today contained these key points in respect of the JRS:
- The scheme in its current form has been extended to 31 July;
- Amendments will be made to the scheme from 1 August and this will continue to the end of October. The amendments will include greater flexibility and enable employers to bring their staff back to work on a part time basis while continuing to receive financial support under the scheme.
- Full details of the amendments to the scheme will be released at the end of May.
The Guidance published after his speech on 11 May 2020, “Our plan to rebuild: The UK Government’s COVID-19 recovery strategy,” outlines the government three-step plan to rebuild our lives and businesses in the wake of the COVID upheaval, can be viewed here. Download the pdf here.As previously mentioned in one of our earlier updates we are encouraging you all to think about how you might safely facilitate a return to your workplaces and ensure you have documented the measures you are taking (including any measures taken by third parties such as landlords, TFL etc.) in order to be prepared and ready to clearly communicate these measures to your staff when the time comes. The ability for some staff to return to the workplace is going to be impacted by a number of factors (which may be outside of their control), so you should be prepared to talk to staff about concerns such as childcare, physical and mental health, commuting to the office, etc. We understand that the Chancellor is preparing to announce changes to the JRS furlough scheme this week and this is likely to include an extension to the scheme past the end of June (at at a reduced % rate of contribution), but with the much needed flexibility to deal with the problems that the current ‘all or nothing’ scheme presents for businesses who need certain staff to work but at a significantly reduced level. We know many of you will welcome this development and we will update you on this as soon as we have the details. For those employers who have been able to accommodate home working but are preparing to reopen workplaces (when you are comfortable that it is safe), we predict you will receive a large number of flexible working requests once your staff is notified of the requirement to return. For some of you this may be something you welcome and are happy to accommodate as it may, for example, create significant cost savings and efficiencies to keep workers in their own homes. Others, however, will be keen to have all staff back in the workplace (again, when it is safe to do so) and if you fall into this camp we suggest you begin to look at legitimate reasons why a flexible working request might not be accommodated. The right to make such a request is provided under statute and there is a limited number of lawful reasons why you could legally reject a request. These include: Are you able to measure workloads and productivity levels? Have you asked line managers how much more or less of their time is spent dealing with the team they are responsible for? Do you know what aspects of the roles have changed since lockdown started and is this likely to be permanent? What if any issues have been raised by staff? etc. There are also a number of health and safety obligations that will need to be considered with regular homeworking as mentioned before. While many businesses have continued to operate during lockdown using homeworking, the circumstances were clearly extreme and are unlikely to provide either party with an accurate reflection of what this would look like under ‘normal’ circumstances (especially if the employee is also responsible for childcare at this time). Just because an employee has been able to work from home in the short term during COVID-19, it does not follow that it will be right for the business in the long run. Remember, the more robust your argument (supported with demonstrable evidence where possible) the better position the business will be in to reasonably decline requests to continue working from home. Also, note that if you agree to a formal flexible working request both parties are agreeing to a permanent change to the employees terms and conditions of employment. If you decline a request, the employee is precluded from making another request for 12 months. There is therefore a very rigid procedure you are required to adhere to on recipe of a formal flexible working request. Ask us if you require clarification. UPDATE 1 MAY 2020 – Easing the lockdown/Returning to work Boris Johnson announced 30 April that he intends to set out a road map for the government’s lockdown exit-strategy next week. While we cannot predict what he is going to say, and clearly one size is not going to fit all, if you haven’t already done so, we recommend that you start to take steps to consider how a return to the workplace will look for your staff and your business in terms of ensuring your employees’ Health and Safety. As employers, despite the unprecedented times you are facing as a result of COVID-19, your duty of care towards your staff remains. Failure to to take reasonable steps to provide for employees’ Health and Safety opens up the potential for claims by dissatisfied staff. There are reports of such claims currently being made in France and America. The advice at present is: If you can work from home you should continue to do so. However, this is not possible for everyone and there are a number of different aspects to managing your obligations as employers, depending upon how you anticipate a return to staff working at normal levels for your business will look like. There are important aspects of a return to the ‘new normal’ which you should consider. 1. If staff are expected to physically return to the workplace:
Are you able to implement a 2-metre social distancing rule i.e. by moving workstations/changing the layout of the workspace? Where this is not possible, can you adjust work patterns by ensuring staff work side-by-side or back-to-back, instead of face-to-face? Can you operate on a rota or a shift pattern so the same cohort of employees work together consistently, to minimise social interaction, and minimising the number of staff on the premises at any one time? Can you stagger break times and work start/finish times to avoid congestion at entrances/exits? Can you supply staff with antibacterial gel and wipes for their use at work? You must remind them to regularly wash their hands to ensure they are helping to look after their own health and safety?
Note: The position on face masks is still unclear but it is looking increasingly like the wearing of a face mask will be encouraged by the government – if this is the case do you have access to masks for your staff? Depending on your type of business these masks do not necessarily need to be professional grade and can be homemade. We expect to see more information released on face masks in the coming weeks. Does your staff work in a serviced office which is shared with other businesses or do you work in your own building?If you have a serviced/shared workspace, have you contacted your landlord or managing agent to ascertain what steps they are taking to ensure the communal areas are sufficiently safe i.e. regular cleaning, marked social distancing reminders, hand sanitisers etc? If you are responsible for your own building, have you considered the contract terms with your cleaners to ensure that all areas accessed by your staff are thoroughly and regularly cleaned? What risk assessments are being carried out to demonstrate that you are aware of the potential risks to your staff if/when you require them to physically return to the workplace.
Any measures adopted should be communicated clearly to your staff in order that they are made aware of what is being done to protect them when they return to the workplace. You may face challenges from staff who refuse to return to work for fear of their health and safety and others who, while agreeing to return to work are unable to get there, for while they are satisfied that the work environment is safe, don’t have their own transport and feel reluctant to rely on public transport at this time. If the schools remain closed past the date when other businesses reopen, you may have staff with school-age children who are unable to return to work as a result of the childcare situation this creates for them. All such situations will need to be dealt with on a case-by-case basis, while also ensuring that your approach as a business is consistent and non-discriminatory. It is important to secure clear advice if any of these issues arise . 2. If staff are expected to continue working from home: While we are of the view that Tribunals will have sympathy for businesses forced to allow staff to work remotely from home on an emergency – and hopefully – temporary basis, the reality is that we have just completed the 6th week since the tighter restrictions were imposed, with the indication that these will continue for some time. While we anticipate a degree of leeway with regards to this unexpected and temporary work set-up, we also expect there will be a point when Tribunals will expect employers to take a more proactive approach to the situation and ensure that the environment that staff are working in is safe (physically and mentally). For example:What risk assessments are being carried out by employers to demonstrate you are aware of the potential risk to your staff while they continue to work from home? Does their new home-based workstation comply with the normal safety requirements? How regularly are you speaking with your staff to check in on their work output, as well as their mental wellbeing to ensure they feel they are supported?
You may also want to consider carrying out ‘temperature checks’ to gain feedback from staff as to how they think the new method of working is going for them. The transition period will be difficult for employers to get right as there are many factors outside of your control, however, the more you can be doing to demonstrate that you are taking all necessary steps to reduce the risks, the better the position you will be in should you be challenged on your actions at a later date. We would be happy to put you in touch with an excellent Health & Safety specialist who can undertake audits for you if you feel this would be beneficial. Please just ask us if you would like their contact details.
Finally, we expect that the current home-working arrangements are likely to result in a considerable increase in flexible working requests being made once businesses require their employees to return to their normal place of work. We shall provide an update on this in due course.
UPDATE 27 APRIL 2020: JRS Portal/Furlough Leave
Overall the feedback on the JRS portal has been very positive. There were some initial teething problems in relation to the online calculator which we understand have now been resolved.
Of course, we appreciate that for many it remains to be seen whether claims have gone through without any issue and that information is only likely to come to light during this week, when funds are expected to arrive in bank accounts, but so far, for those who have already received payments, it appears to have been successful and relatively painless.
WARNING: This data is highly sensitive and should only be entered directly into the HMRC portal. DO NOT FALL FOR AN EMAIL SCAM INSTRUCTING YOU TO CLICK A LINK OR REPLY TO AN EMAIL.
If you believe you have entered a claim for the incorrect pay period it can be rectified in the next pay period.
If you provided your staff with a timeframe for the initial furlough period and that has/is coming to an end and you wish for them to remain on furlough leave, then you are obliged to update your staff that you intend to continue the furlough leave period.
Parental Leave
Late on 24 April, the government issued an update to confirm that any furloughed workers who take any family-related leave (maternity, paternity, adoption leave etc.) on or after 25 April 2020 will be entitled to receive such statutory payments based on their full contractual pay, rather than their furlough pay.
Emergency Volunteering Leave (EVL)
The Coronavirus Act 2020 has introduced a new statutory right to Emergency Volunteering Leave which allows staff to assist an “appropriate authority” in the health or social care sector. This could be a local council, district council or the NHS.
Where an individual wishes to volunteer, they will first need to obtain an emergency volunteering certificate from the appropriate authority. EVL can only be taken in blocks of two, three or four consecutive weeks: shorter/longer periods are not permitted.
If you employ ten or more staff, you cannot refuse the request. If you employ fewer than ten staff you can decline the request. There is no automatic right for the individual to be paid during EVL and it should therefore be treated in the same way as unpaid leave. If the individual is furloughed they cannot be receiving furlough pay as they will instead be entitled to claim compensation from the government for loss of earnings, travelling and subsistence.
Please note that if you terminate an individual’s employment on the basis of their taking EVL, you could face a claim for automatic unfair dismissal (given it is a statutory right), which does not require any minimum length of service and the level of compensation that can be claimed is uncapped.
Additional financial support for small businesses – Bounce-Back Loans
The government is now offering a “bounce-back loan” which amounts to 25% of your turnover (capped at a loan amount of £50k) for which the government will pay the interest for the first year.
There is no proof of ongoing viability of the business needed. To apply, complete the two-page online form. This support will be available from next May 4th. This will be of particular use to firms that were unable to utilise the previous business interruption loan scheme, or for whom the government grants were insufficient.
UPDATE 20 APRIL 2020: Key takeaways are underlined
The JRS online portal went live this morning, and has only ‘dropped out’ four times at the time of writing, which is a much better outcome than had been predicted. Access to the portal is being ‘throttled’ to reduce the number of people who can login at the same time; however, accountants are saying they are pleasantly surprised with how well it is working so far.
Key points:
If you have 99 or fewer employees you are required to enter the data manually (only businesses with over 100 staff can submit a spreadsheet). This is likely to cause some problems as you have only 30 minutes to enter your data before the portal times out and you have to re-connect and start again. It is, therefore, important to have all of the information you need available when you access the portal.
The online calculator to accompany the portal is flawed and is basing the calculations with a payroll inclusion deadline date of 16 March instead of 19 March 2020. This will distort the figures you are claiming for and we recommend that you manually calculate the amounts you are claiming until this error is rectified.
The pay calculation under the Directive is based on calendar days (as opposed to working days) and this can reduce the amount being claimed quite significantly – some employers are choosing to base their calculation on working days as it is fairer to do so, but this may mean (as it currently stands), that they won’t be able to reclaim all 80% of the payment they have made to their staff. The accountancy community feels this is unfair but unless (or until) it is rectified it is something to consider when calculating your payments.
The system appears to be linked to your specific PAYE records as it will only permit a claim for the number of staff on your last payroll submission, i.e. before 19 March 2020. This is presumably HMRC attempting to prevent fraudulent claims from being made for employees who were not on payroll records prior to 19 March 2020.
The request for a postcode on the portal looks as though it relates to the postcode for your bank branch; however, it is actually asking for the postcode where your business is registered. This is confusing to some users.
You are only permitted to make ‘One Claim Per Pay Period’. A ‘Pay Period’ equals one calendar month. In your first claim it appears you should include the amounts you are claiming for March and April. Going forward, your May claim will then relate solely to May, June to June, etc. However, should you accidentally miss a period in your claim this month, you can add it to your claim on the next pay period (i.e. your May pay-period claim).
The JRS grants should be in your bank account within six to eight working days from the submission of your claim through the portal. If you are in a position to pay your staff this month and wait a few days for the demand to the portal to subside – and for initial glitches to be ironed out – this may make your experience with the portal less troublesome.
Remember, you must obtain written agreement from your employees to furlough them (email consent is sufficient). The Directive has confirmed it is not enough to rely on the fact your employee has not attended work (i.e. acceptance through conduct), you must obtain your employees written consent to be furloughed (and their agreement not to perform any work).
WARNING: This data is highly sensitive and should only be entered directly into the HMRC portal. DO NOT FALL FOR AN EMAIL SCAM INSTRUCTING YOU TO CLICK A LINK OR REPLY TO AN EMAIL.UPDATE 17 APRIL 2020: HM Treasury today announced the Job Retention Scheme (JRS) is extended from 31 May 2020 to the end of June 2020. On 16 April, the government announced that the lockdown measures are to be extended for a further three weeks. If you, therefore, have any queries with managing staff who are working from home or on furloughing your staff, bringing staff back from furlough leave, rotating staff on furlough leave etc., please email us at justice@griffin.law. Please note that the JRS portal which will be used for claiming for furloughed employees is scheduled to go live on Monday, 20 April 2020. In the fourth iteration to the scheme, released earlier this week, the government has added to the information you will need in order to submit your claim. This is the current list:
- Your employer PAYE reference number
- The number of employees being furloughed
- National Insurance Numbers for the furloughed employees
- Names of the furloughed employees
- Payroll/employee number for the furloughed employees (optional)
- Your Self-Assessment Unique Taxpayer Reference or Corporation Tax Unique Taxpayer Reference or Company Registration Number
- The claim period (start and end date)
- Amount claimed (per the minimum length of furloughing of 3 consecutive weeks)
- Your bank account number and sort code
- Your contact name
A Griffin Law Special Briefing in conjunction with HRx Consultancy Services
Many of our clients have sought advice and documentation regarding furloughing some (or all) of your staff. This update should assist you as you prepare to claim under the Coronavirus Job Retention Scheme (JRS) system once it goes live later this month.The current message from Her Majesty’s Revenue and Customs (HRMC) to companies is that: If you cannot maintain your current workforce because your operations have been severely affected by coronavirus (COVID-19), you can furlough employees and apply for a grant that covers 80% of their usual monthly wage costs, up to £2,500 a month, plus the associated Employer National Insurance contributions and pension contributions (up to the level of the minimum automatic enrolment employer pension contribution) on that subsidised furlough pay.
This is a temporary scheme scheduled to be in place for three months starting from 1 March 2020, but it may be extended if necessary and employers can use this scheme anytime during this period. It is designed to help employers whose operations have been severely affected by coronavirus (COVID-19) to retain their employees and protect the UK economy. However, all employers are eligible to claim under the scheme and the government recognises different businesses will face different impacts from coronavirus. The list below provides highlights from the JRS advice from HMRC, in addition you can (and we advise you should) read the full guidance here: https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme.- The Job Retention Scheme is open to all UK employers that had a PAYE scheme in place on 28 February 2020.• Employers can reclaim up to 80% of wage costs up to a cap of £2,500 per month, PLUS (not including) the associated employer NICs and minimum auto-enrolment pension contributions on that wage. Fees, commissions and bonuses are not included. This is one of the more important clarifications in terms of your staff and their incomes as previously it was widely accepted that the capped sum included NICs and pension contributions due to the reference to ‘all employment costs’.
- An employer can choose to top up to one hundred percent but does not have to (subject to employment law and renegotiating any contractual entitlements).*
- Individuals who are usually paid the National Minimum Wage for the hours they work, will only be able to be paid 80% of their usual wage even though this will take their earnings under the National Minimum Wage as they are not required to work during furlough leave. Again, an important clarification for many employers who previously were being faced with having to top up wages to meet their National Minimum Wage obligations..
- The employee must have been on the payroll on or before 28 February 2020 to qualify for the JRS. If they were hired later, they are not eligible. Anybody who was on your payroll on 28 February and has since been made redundant can be rehired and put on the scheme if you wish.
- Furlough leave must be taken in minimum blocks of three weeks to be eligible for funding. Surprisingly, there is nothing in the guidance which prohibits employers from rotating furlough leave amongst employees, provided each employee is off work for a period of at least three weeks. We would suggest you coordinate the rotation extremely carefully if you plan to implement a rotation on a three-week basis for health and safety reasons.
- During furlough the employee must not be working at all. However, they are able to undertake training and do volunteer work, provided they do not provide services to or generate revenue for their employer.
- When agreeing furlough with your employees, normal employment law applies. Employers must be careful not to discriminate in deciding who to offer furlough too. As previously suggested prioritising vulnerable workers is unlikely to be deemed discrimination, as it is almost certainly justifiable based on government advice.
- Employees on sick pay or self-isolating cannot be furloughed, but can be furloughed afterwards (once they are well). Employees who are shielding can be placed on furlough.
- Employees on maternity (or similar) leave can continue to draw SMP (or similar) payments. The guidance does not prohibit women on maternity leave agreeing to return to work early and then being furloughed, or electing to change to shared parental leave and then being furloughed.
- Employers can only claim the grant once every three weeks, i.e. they cannot get weekly reimbursement. Claims can be backdated to 1 March 2020 provided employers can demonstrate that the employee was not performing any work since this date.
Consent and communication
Not every company has implemented the Job Retention Scheme (JRS) and some will still need/choose to operate at full capacity or have sought consent from their staff to introduce temporary short-time working to enable key employees to continue working albeit on reduced hours/wages. For those who have furloughed some or all of their employees, as well as outlining the general mechanics of the JRS, we can answer specific queries, such as:- What do I do about bank holidays for furloughed staff?
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- Pay at 100% of salary (while claiming 80% of this cost through JRS and capped at £2,500 per month), or allow your employees to carry it forward to take at a later date and within the next 2 years.
- Do we need to continue to make pension contributions while staff are furloughed?
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- Yes, and these are payable by both employer and employee unless your employee requests to opt out of the scheme.
- How do we calculate 80% of wages for staff that work irregular hours?
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- Use the higher of either the same month’s earnings last year, or their average monthly earnings from the previous tax year.
HMRC has informed a Parliamentary Select Committee that the online portal for the JRS will open on 20 April 2020, with the first reimbursements due to be made on 30 April 2020.We are advised that once the online portal is live, you will need to enter the following information:
* your ePAYE reference number * the number of employees being furloughed * the claim period (start and end date) * amount claimed (per the minimum length of furloughing of 3 weeks) * your bank account number and sort code * your contact name * your phone number
The government is stating that the employer needs to calculate the amount being claimed (the portal won’t do it for you) and that HMRC will retain the right to retrospectively audit all aspects of your claim. NOTE: This data is highly sensitive and should only be entered directly into the HMRC portal. DO NOT FALL FOR AN EMAIL SCAM INSTRUCTING YOU TO CLICK A LINK OR REPLY TO AN EMAIL. We are also receiving queries regarding whether staff can opt out of their pension contributions during furlough (to reduce the deductions being taken from the capped payment). The JRS does not currently address this query specifically, so we are recommending employers revert to the usual position on pensions which can be found at: https://www.gov.uk/workplace-pensions/if-you-want-to-leave-your-workplace-pension-scheme This would suggest that if your employees do not wish to have their pension contributions deducted at this time they would need to opt out of the scheme and confirm this to you in writing. They can then opt back in at any time by writing to the Company requesting to re-join the scheme. The Company does not have to accept the employee back into the workplace scheme if they have opted in and then opted out in the past 12 months but these are very unusual circumstances and employers should be as accommodating as possible. In any event the employee will be automatically re-enrolled every three years. Please note that we have to caveat our advice and confirm that it is subject to change given we are reacting to the government’s announcements. We advise you to read the full guidance at https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme. * If you require a letter or email seeking consent to furlough your employees please let us know by emailing justice@griffin.law and we will tailor it to your personal arrangements with your staff. For HR advice, please email victoria@hrxconsultancy.com
Griffin Law is a dispute resolution firm comprising innovative, proactive, tenacious and commercially-minded lawyers. We pride ourselves on our close client relationships, which are uniquely enhanced by our transparent fee guarantee and a commitment to share the risks of litigation. If you have any specific questions regarding a dispute, please email justice@griffin.law or call 01732 52 59 23.
