The UK government has now released its detailed guidance to implement flexible furlough and gradually wind down the Coronavirus Job Retention Scheme (“CJRS”) to its expected end date of 31 October 2020.

Key highlights of the new flexible furlough regime and winding down payments

From 1 July 2020, employers can bring furloughed employees back to work for any amount of time and any shift pattern, while still being able to claim a CJRS grant for the hours not worked. Some of the key aspects of the flexible furloughing regime are set out below:

• Employers will still be able to claim the CJRS grant for the hours that its employees are flexibly furloughed (that is, not working), compared to the hours they would normally have worked in that period.
• The existing three week minimum furlough period will be removed. CJRS claims made via the online portal will, however, need to be for a minimum period of one week.
• Wage caps will be proportional to the hours an employee is furloughed. For example, an employee is entitled to 60% of the £2,500 cap if they are placed on furlough for 60% of their usual hours.
• Save for employees returning from
  

The UK Coronavirus Job Retention Scheme (“CJRS”) is evolving and winding down. In addition to knowing when these changes take effect, UK employers need to bear in mind the risk that they may also trigger collective consultation obligations. Set out below are some key dates for UK employers to bear in mind:

10 June 2020: furlough claims can only be made in respect of employees who have been registered under the scheme by this date.

16 June 2020: ‘cliff-edge’ date for conducting minimum 45 days collective consultation prior to any changes from 1 August 2020.

30 June 2020: employers will not be able to put additional employees on furlough.

1 July 2020: part-time furloughing is permitted.

1 August 2020: employers will have to pay employer National Insurance contributions and employer pension auto enrolment contributions for furloughed employees.

1 September 2020: employers must contribute 10% towards the pay of furloughed employees.

15 September 2020: ‘cliff-edge’ date for conducting minimum 45 days collective consultation prior to the end of the CJRS on 31 October 2020.

1 October 2020: employers must contribute 20% towards the pay of furloughed employees.

31 October 2020: the CJRS ends.

BCLP has assembled a COVID-19 Employment & Labor taskforce

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?

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

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
  

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;

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,

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
  

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

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/.