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Making redundancies during Covid-19

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The further extension of the job retention scheme could open up employers to legal action if they make people redundant while it is still running.
There are obviously some situations such as closure where redundancies may be necessary, however, you would need to be able to evidence that you have considered furlough as an alternative and why this wasnt a viable solution.
If however you do need to make redundancies, make sure you follow a full process, this can be done whilst employees are furloughed.

Covid-19 Update

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The Goverments new track and trace system starts today. For employees who have been notified by the NHS that they have been in contact with someone who has COVID19 and they are required to self isolate for 14 days, they are entitled to statutory sick pay (SSP) from day1 subject to eligibility. Call us now 01422 822842.

Codid-19 Update

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Question.

Can employers enforce their staff to take annual leave during a period of Furlough?
Answer. Yes. However employers must give twice as much notice as the period of leave to be taken. For example one weeks holiday to be taken requires two weeks notice. Employers must pay holiday pay at 100 per cent wages/salary. Employers, call the experts now on 01422 822842 for further information.

Covid-19 Update for employers

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Are you an employer starting to think about bringing your employees back into work? Apply these 3 steps.

1. Is it essential?
2. Is it safe?
3. Is it mutually agreed.

People are naturally going to be apprehensive about their return to work, so clear and sound direction and reassurance from business owners and Managers is fundamental. Risk assess, issue guidance, talk to your employees, offer PPE where necessary, apply the 2M rules, carry out one to ones with your staff. For subscribed health and safety clients, talk to your Consultant, let the experts guide you, here to help. For unsubscribed clients, and if you need H&S support, talk to Johanna 01422 822842. Johannam@elcons.co.uk professional support just when you need it!👍🙌

Can you reclaim SSP on more than one occasion due to Coronavirus? (For employers with under 250 employees)

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The current guidance states that an employer can only reclaim upto 14 days SSP for each employee even if they are off more than once with symptoms/other within the household with coronavirus symptoms.  However, the provision that SSP is not paid for the first three qualifying days does not apply in relation to an employee where an employee’s period of incapacity for work is related to coronavirus and the first day of incapacity for work in that period arose on or after 13th March 2020.  Therefore both periods of absence would be liable to SSP from day 1.

Permanent Homeworking? Consultation for change

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As many of the world’s workplaces were pushed to make a move to homeworking, many organisations are now enjoying the benefits of reduced overheads and advanced technologies.  For some, this has resulted in a desire to make the temporary homeworking arrangements permanent.  What are you required to do in order to make this change permanent?  Even if mobility clauses exist, you will have a duty to consult with staff regarding the proposed permanent change.  In addition, unless, employees agree to the change, notice will need to be given.  Although during furlough a risk assessment of the home environments suitability for homeworking is not necessary, this is a consideration should the arrangement become permanent.

If you are considering this change, please speak to your advisor for specific advice in relation to the process of consultation.

Parental Bereavement Leave now in effect

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Parental Bereavement Leave Regulations 2020 came into force on 6 April 2020, meaning bereaved parents are now entitled to one or two weeks’ leave (and in some cases pay) following the loss of a child under the age of 18, or a stillbirth after 24 weeks of pregnancy.   This new right, known as “Jack’s Law ”, in memory of Jack Herd whose mother Lucy campaigned on the issue, applies to deaths or stillbirths occurring on or after 6 April 2020. Employees are eligible from the first day of their employment.  Eligibility for Parental Bereavement Pay will depend upon length of service and gross average weekly earnings.

To make specific enquiries, please contact your Advisor.

Health & Safety at Work during the Coronavirus situation

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Where work cannot be done at home and employees are needed in the workplace, please ensure you consider their safety whilst remaining in the workplace:-
  1. Maintain a distance of at least 2 metres between individuals
  2. Remind employees to wash their hands regularly and thoroughly
  3. Provide washing facilities and hand sanitiser
  4. Ensure the premises is regularly cleaned
  5. Make sure they know what to do if they have any symptoms!
 

Return to work after the Coronavirus lock down
When furlough ends and businesses get back to ‘normal’, what should you be considering?  Obviously there will be guidance at this stage but consider:-
  1. Check that all employees details havent changed
  2. Continue hygiene control
  3. Look at continuing with as much distancing as possible
  4. Consider different working patterns/practices to keep your employees safe (take advice if wanting to make any changes to their Terms & Conditions)
  5. You could consider staff bringing their own food/drink and utensils and taking them home with them

Is there a specific amount of time that employees have to work inbetween furlough periods?

No!  They need to be furloughed for at least 3 weeks to be able to use the Job Retention Scheme, however, if they then return to work and later are furloughed again, the only time constraint is that each furlough period needs to be at least 3 weeks.

What records should an employer keep regarding furloughing it’s employers?

An employer must keep a written record of all communications with the employee regarding the furlough arrangement, including all copies of the furlough agreement, for five years

Coronavirus Job Retention Scheme (furlough leave)

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Latest Furlough guidance as at 28.4.2020

Why?

On Friday 20th March 2020, in response to the Covid-19 Coronavirus outbreak, the Chancellor Rishi Sunak announced support for employers whose businesses have been affected by the virus.  All businesses, regardless of sector, are eligible for the Coronavirus Job Retention Scheme.  The scheme permits employers to pose to their employees an option of Furloughing as an alternative to lay off or redundancy.  In doing so, the employee may then receive pay at 80% of their normal earnings (up to a max of £2500 per month), which under the scheme, the employer will then be able to claim back via HMRC.

Is there eligibility criteria for Furlough?

It covers all employees on the PAYE system, including zero-hours workers and therefore will cover many workers and not just employees. 

Self-employed are not covered by the scheme, but help is now available from the Government for the self employed.

An employee  or worker must have been on your PAYE payroll on or before 19 March 2020.

The scheme also covers employees who have been made redundant or stopped working for you on or after 28 February 2020 and you re-employ them. It even covers employees you did not re-employ until after 19 March 2020.

If employees transfer under TUPE, the new employer is eligible to claim under the scheme in respect of the employees of a pervious business transferred after 19 March 2020 if either the TUPE or PAYE business succession rules apply to the change in ownership.

An employee on sick leave or self-isolating should receive Statutory Sick Pay, but can be furloughed after this.

Employees who are shielding in line with public health guidance can be placed on furlough.

Apprentices can be furloughed in the same way as other employees and they can continue to train whilst furloughed. However, you must pay your Apprentices at least the Apprenticeship Minimum Wage, National Living Wage or National Minimum Wage (AMW/NLW/NMW) as appropriate for all the time they spend training. This means you must cover any shortfall between the amount you can claim for their wages through this scheme and their appropriate minimum wage.

Employees who are unable to work because they have caring responsibilities resulting from Coronavirus can be furloughed. For example, employees that need to look after children can be furloughed.

How do I invoke Furlough?

When considering furloughing employees, you must first consult with them to gain their agreement in writing that they are willing to receive 80% of their wage. If an employee expresses an unwillingness you could make them aware that the alternatives are statutory guarantee payments (if there is a lay-off clause within their employment contract) or redundancy in there is no work long term.

If you are furloughing over 20 employees, you may want to consider collectively consulting with them.

You must notify employees of their Furlough status in writing and keep a record of this for five years.

Can I give employees work when they have been furloughed?

Government guidance to employees is “to qualify for this scheme, you should not undertake work for [employers name] while you are furloughed”. Therefore, it is advised that no work is requested of the employee otherwise you may not claim the refund of 80% as per the scheme. 

Formal meetings such as consultation for redundancy, disciplinary hearings and grievances hearings can still take place during the furlough period.

Can employees work elsewhere when they have been furloughed?

Employees can start a second job whilst on Furlough if allowed under their employment contract. Any term that restricts further employment during normal working hours can be waived by the employer.

An employee will be paid 80% of their wage/salary from their current employer and 100% of their wage/salary from second employer.

An employee can be prevented from working for a competitor, subject to enforcement of a clause being included within the employment contract. For clients with Elcons contracts, this clause is located in the Statement of Main terms of Employment entitled “OTHER EMPLOYMENT”.

Do employers need to notify their employees that they can obtain a second job whilst under Furlough?

It is not the employers responsibility to make employees aware of this.

What about other contractual/statutory leave during a period of Furlough?

If an employee becomes sick while furloughed, the employee retains their statutory rights, including their right to Statutory Sick Pay. This means that furloughed employees who become ill must be paid at least Statutory Sick Pay. It is up to employers to decide whether to move these employees onto Statutory Sick Pay or to keep them on furlough, at their furloughed rate. If the employee is moved onto Statutory Sick Pay, employers can no longer claim for the furloughed salary.

Maternity leave will override a period of furlough.  

Employees can, subject to normal authroisation rules with the employer, take annual leave during a period of Furlough but holiday pay must be paid at 100%. Employers can recover the holiday pay back, but only up to 80% (the same as if they were under Furlough). 

What is the employee’s status whilst furloughed?

They remain an employee and length of service will continue to accrue.  Contractual rights will remain save for pay and benefits.

Can I put staff on furlough, bring them off furlough and then put them back on it?

Yes, but for a minimum period of three weeks each time. See note below.

Should an employer Furlough their employees for a period of less than three weeks, the employer would then need to stand the cost of those wages as they cannot be claimed back under the scheme. 

If an employer is anticipating short periods of down turn and know that they will therefore not qualify for the 80% capped amounts to be covered by the HMRC Coronavirus Job Retention Scheme, they may offer an employee to take any accrued but untaken holidays (these should not be forced) or the employer may choose to use lay-off as an alternative should the contracts allow for this provision. Please take advice before you take any action.

Pay – how will this work?

Your pay run will operate on its normal dates. You should pay at 80% of the normal wage.  There is no clear guidance on this as of yet.  We advise at present to pay based on contracted hours for those with set hours.

Pay for an employee whose pay varies is calculated in the following way:

If the employee has been employed for a full twelve months prior to the claim, you can claim for the higher of either:

  • The same month’s earning from the previous year
  • Average monthly earnings from the 2019-20 tax year

If the employee has been employed for less than a year, you can claim for an average of their monthly earnings since they started work.

Earnings include any contractual commission an employee may earn and overtime. The 80% does not include non-monetary benefits such as health insurance or a company and discretionary bonus (including tips).

We advise taking guidance from HMRC and an accountant on this point.

You can choose to top up wages to any higher percentage, but this would be a business choice and you would not be able to claim more than 80% back via HMRC.

Is the contribution of 80% of £2,500 or is the total £2,500 per employee?

Guidance states “HMRC will reimburse 80% of furloughed workers wage costs, up to a cap of £2,500 per month”.

It is assumed that all cost paid through PAYE are included in this and we interpret the guidance to mean a maximum limit of £2,500 per employee per month.  The intention also appears to be that the employee will receive £2,500 gross. 

How do we claim back money?

Companies will be required to submit information to HMRC for staff furloughed with details of their earnings.  HRMC have released a new online portal and this has gone live on 20 April 2020. The first claims are expected to be paid by 30 April 2020.

An employee must be furloughed for a minimum three week period for you to be eligible to claim under this scheme. This is consistent with the public health guidance seeking to minimise the number of people outside of their homes on a regular basis.

To claim, you will need:

  • Your ePAYE reference number
  • Number of employees being furloughed
  • The claim period
  • Amount claimed
  • Your bank account number and sort code
  • Your contact name
  • Your phone number

You will need to calculate the amount you are claiming. HMRC will retain the right to retrospectively audit all aspects of your claim.

You can only submit one claim at least every three weeks.

How long will the scheme run for?

Initially, the scheme has been put in place for three months and is backdated to the 01 March 2020 until 31 May 2020. The Government has stated that “this will be extended if required”. This has now been extended until the end of June 2020.

How do I ask am employee to return to work?

You can request an employee to return to work at any time and this will end the furlough period.  We advise that any conversations asserting your request are followed up in writing and that as much notice as possible is given to an employee regarding a request to return to work.

Disclaimer

Please note that all information contained within this document is for guidance purposes only and is subject to change upon receipt of full guidance/legislation from the Government.

Elcons Employment Law Consultants is not liable for any dispute that may arise from the information contained within this document.