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COVID-19 redundancy issues: HR frequently asked questions in multiple jurisdictions

Summary

We understand that our clients and contacts will be addressing complex redundancy issues related to COVID-19 in multiple jurisdictions. BCLP, together with our local counsel friends, have produced a global Q&A document covering 40 jurisdictions. We cover questions around dismissals, compensation, collective consultation and alternatives to redundancy.

Please download our global Q&A document here.

The document covers the following questions:

  • Is there any legislation, order or mandate prohibiting an employer from dismissing an employee in circumstances where the employer has obtained the benefit of Coronavirus government support?
  • Does an employee with a qualifying period of employment have any statutory protection against redundancy dismissal?
  • What redundancy compensation is payable to an employee who is dismissed by reason of redundancy?
  • Should an employer take into consideration a Coronavirus government support scheme before dismissing an employee?
  • Are employers subject to separate collective consultation obligations?
  • If an employer is subject to collective consultation obligations, is there any defence for a failure to comply?
  • If an employer is subject to collective consultation obligations, what is the sanction for a failure to comply?
  • What alternatives to redundancy dismissal are open to an employer?

Coronavirus Statutory Sick Pay Rebate Scheme – UK online service to be launched on 26 May 2020

Today, the UK government announced that a new online service will be launched on 26 May 2020 for small and medium-sized employers (with fewer than 250 employees) to recover Statutory Sick Pay (SSP) payments they have made to their employees.

The Coronavirus Statutory Sick Pay Rebate Scheme (part of a package of support measures for businesses affected by Coronavirus) covers all types of employment contracts, including full-time employees; part-time employees; employees on agency contracts and employees on flexible or zero-hour contracts.

Employers will be able to make their claims through a new online service in respect of payments made to current or former employees for eligible periods of sickness starting on or after 13 March 2020 on condition that they have a PAYE payroll scheme that was created and started before 28 February 2020 and they had fewer than 250 employees before that date.  Employees do not have to provide a doctor’s fit note for their employer to make a claim under the scheme.

The repayment will cover up to 2 weeks of SSP and is payable in respect of employees who are unable to work because they have Coronavirus; are self-isolating and unable to work from home or are shielding because they have been advised that they are at high risk of severe illness from Coronavirus.

BCLP has assembled a COVID-19 Employment & Labor taskforce to assist clients with employment law issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com. You can also view other thought

Coronavirus Job Retention Scheme – extension until 31 October 2020

Since its inception, almost one million employers have applied to the Coronavirus Job Retention Scheme (“CJRS”) to help pay the wages of 7.5m jobs (almost a quarter of all employees in the UK).  Although there is no doubt that the CJRS has been a great success in protecting jobs whilst businesses have been in hibernation, the cost to the UK taxpayer has been extraordinary – an estimated £49 billion up to 30 June 2020, according to the Office for Budget Responsibility.

The government will be hopeful that as lockdown is eased and employees who cannot work from home gradually return back to the workplace, reliance on the CJRS will decline.  However, there are some sectors which will not be able to reopen until 4 July 2020 (at the earliest) and there will be some employers who will not be able to put in place a COVID-19 secure workplace.  With that in mind, and with a collective redundancy consultation “cliff-edge” on 15 May 2020, the government has taken steps to extend the CJRS.

Today, the UK Chancellor of the Exchequer announced the following:

  • the CJRS will be extended for a further four months, up to 31 October 2020;
  • no changes will be made to the CJRS until the end of July 2020;
  • with effect from 1 August 2020, part-time furloughing under the CJRS (which is currently prohibited) will be permitted;
  • the existing government grant of 80% of wages (capped at £2,500 per month) will continue to remain in place; and

Coronavirus – measures that UK employers need to take to “help get Brits safely back to work”

Yesterday, the UK government published eight different workplace-specific guidance documents on measures that employers need to take to “help get Brits safely back to work”. The guidance is tailored for different workplace environments, such as offices, factories, retail shops etc.

Whilst the basic position remains that employers should take all reasonable steps to help their staff work from home, where this is not feasible and the employer has not been told to close, staff should be encouraged to come back to work – as long as there is a ‘COVID-19 secure’ environment put in place by the employer.

In order to take steps to ensure that the workplace is COVID-19 secure, employers are required to take the following key steps:

  • consult with the health and safety representative selected by a recognised trade union (or, if there is not one, a representative chosen by staff) about a risk assessment to be carried out in order to establish what specific guidelines need to be to put in place;
  • share the results of the risk assessment with the workforce – the UK government has stated that it expects all employers with over 50 workers to publish this data on their website;
  • display a standard form notice in the workplace to demonstrate that the employer is following the guidance;
  • re-design workplaces to maintain (wherever possible) social distancing by, for example, ensuring a 2 metre distance between staff; staggering working hours and opening up more exit and entry points;
  • if it is not

Coronavirus: UK Job Retention Scheme online portal now open / employee consent

Online portal

Today, the UK Coronavirus Job Retention Scheme (‘CJRS’) online portal has opened for employers to make applications for furlough grants.  You can find the portal here.

Claims can only be made in respect of furloughed employees who were on an employer’s PAYE payroll on or before 19 March 2020 and who were notified to HMRC on an RTI submission on or before 19 March 2020.  Employees who were employed as at 28 February 2020 and on payroll (that is, notified to HMRC on an RTI submission on or before 28 February 2020) and who were made redundant or stopped working for the employer after that date, but prior to 19 March 2020, will also qualify for the CJRS if the employer re-employs them and puts them on furlough.

In relation to claims made under the CJRS, employers should retain all records and calculations in respect of its claims, including records of the amount claimed for each furloughed employee and the period for which each employee is furloughed.

If an employer is furloughing less than 100 employees, in addition to providing certain employer-related details, it is required to enter various employee-specific information. This includes the employee’s name, National Insurance number, claim period and claim amount, and payroll/employee number (optional).  If an employer is furloughing 100 or more employees, it can upload a file with the above information rather than input it directly into the portal.  HMRC will accept .xls .xlsx .csv .ods file types.

For more information

Coronavirus: UK’s first judgment on the Job Retention Scheme – the Carluccio’s administration

On Monday 13 April 2020, the High Court released its judgment in the United Kingdom’s first case relating to the government’s recently announced Coronavirus Job Retention Scheme (“CJRS”).

The case considered the use of the CJRS by the Administrators of Carluccio’s Limited (“Carluccio’s”). Due to Carluccio’s being in administration, it was heard by the High Court as a matter of urgency.

The case raised several important points because the government had only outlined the CJRS in broad terms, nor has it detailed the way the CJRS interacts with existing insolvency legislation.

This blog deals with the administration and insolvency issues as well as the employment law implications regarding employees impliedly consenting to changes to their terms of employment.

Facts

  • Carluccio’s entered administration subsequent to the imposition of the government’s ‘lockdown’ measures aimed at reducing the spread of COVID-19.
  • The Administrators’ current strategy is to “mothball” Carluccio’s whilst it seeks a buyer. As part of this strategy the Administrators wish to retain its employees and claim for their wages through the CJRS.
  • Carluccio’s has no money with which to pay the continuing wages of its employees. If Carluccio’s cannot take advantage of the CJRS and in turn limit its liability for wages to the amount it would be able to obtain under the scheme, the Administrators would be forced to make the workforce redundant.
  • The Administrators made an offer to place the employees on furlough under the CJRS. The “overwhelming majority of employees” accepted the offer, a “handful” indicated that

Coronavirus: UK Job Retention Scheme – previously excluded employees now in scope to be furloughed

Summary

Key points arising out of the revised guidance and the legislative framework include:

1. Eligibility cut-off date extended from 28 February to 19 March: This is the most significant change to the UK Coronavirus Job Retention Scheme (CJRS) guidance. It brings into scope many new recruits who previously could not be furloughed. Earlier versions of the guidance said that new recruits who joined after 28 February were excluded from the scheme. However, the latest guidance now says that individuals put on the employer’s payroll on or before 19 March, and in respect of whom the employer has also made an RTI submission to HMRC on or before 19 March, can be furloughed.

It may well be that employers have already taken action to terminate new recruits who, according to previous versions of the guidance couldn’t be furloughed. Employers still have the option to rehire these individuals and then furlough them, if they wish to do so.

2. Requirement for employer/employee agreement: the legislative underpin for the CJRS (the ‘CJRS Direction’) has now also been published and says that to be furloughed, the employer and employee must agree in writing that the employee will cease all work. This conflicts with the guidance, where the employer only has to confirm in writing that the employee has been furloughed, not that the employee has agreed to cease working. The best evidence of employee agreement is express confirmation from the employee that they agree to the furlough letter terms (which include the

CARES Act article from BCLP Benefits Blog

CARES Act article from BCLP Benefits Blog

April 8, 2020

Authored by: BCLP at Work

Our Employee Benefits and Executive Compensation colleagues have recently drafted an article on how the CARES Act limits executive compensation for U.S. businesses participating in CESA relief . Please click here for the full article: https://benefitsbclp.com/covid-19-cares-act-limits-executive-compensation-for-u-s-businesses-participating-in-cesa-relief/.

 

Coronavirus: UK Job Retention Scheme – government fills in some gaps in the guidance

Summary

As an update to our 27 March blog “Coronavirus: UK Job Retention Scheme – further government guidance”, the UK government has revised its online guidance to provide more information on how the Coronavirus Job Retention Scheme (CJRS) operates. A number of points have been clarified, whilst some important issues have still not been addressed.

The following CJRS points have been clarified:

Who can be furloughed?

Clarifications on who can be furloughed include:

  • Terminated and rehired staff: employees who were terminated on or after 28 February, whether or not for redundancy, can be furloughed, providing the employer rehires them. Previously the guidance only talked about those who were made redundant;
  • Carers/shielding employees: employees who are unable to work from home because they have caring responsibilities, or because they are shielding in line with public health guidance, are expressly covered;
  • Insolvency: employees of a company which is in administration may be furloughed, although the government expects administrators to only access the CJRS if there is a reasonable likelihood of rehiring them; and
  • Non-employees: whilst we already knew that non-employees such as agency workers who are paid through PAYE could be furloughed, the updated guidance highlights that company directors and salaried members of LLPs are also covered, as are apprentices.

What elements of staff remuneration can be reclaimed?

  • Fees, commission and bonuses: previously the guidance said these aspects of remuneration could not be part of the remuneration that could be reclaimed. However, the guidance now provides that

U.S. CORONAVIRUS RELIEF BILL: The CARES Act – Provisions Affecting Employers and Employees

Following tense negotiations throughout last week, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act” or “Act”) became law on March 27, 2020.  The CARES Act represents the third Phase of Congressional relief responding to the novel coronavirus (COVID-19) pandemic.  Phase I (Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (P.L. 116-123)) and Phase II (Families First Coronavirus Response Act (P.L. 116-127)) were signed into law on March 6 and 18, respectively.   At 883 pages, the CARES Act is the largest relief bill in U.S. history and addresses on multiple fronts the hardships faced by individuals and businesses throughout this crisis.  These efforts include an unprecedented expansion of unemployment benefits, significant funding for the health care industry, aid to large and small businesses valued in the billions, and even direct payments to individuals.

The majority of economic relief provisions for U.S. workers and employers is provided in Titles I through IV of Division A of the Act (Division B consists of emergency appropriations to fund various program). The CARES Act also has specific provisions regarding relief for airlines, financial institutions, and other sectors that are considered critical to national security.  Titles I through IV of Division A of the CARES Act is are described in relevant part below.

Title I – Keeping American Workers Paid and Employed Act

Title I of the CARES Act provides relief through employee paycheck protections, loan forgiveness, and small business contracting relief.  The Act enables the Small Business Administration (“SBA”) to provide

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