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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 – first steps to unlocking lockdown for employees in England

Last night, the UK Prime Minister made his long awaited announcement on the roadmap to easing lockdown in England.  As anticipated in the days leading up to the announcement, the changes to the lockdown arrangements (described by the TUC as a “recipe for confusion”) have been tentative.  From an employment perspective, the key points to note are:

  •  the government guidance has now shifted so that those employees who work in the construction and manufacturing sector should be actively encouraged to return to work, if they cannot work from home;
  • given the impact of social distancing on the public transport network, employees returning to the workplace, will need to find alternative ways to travel; and
  •  employers will need to ensure that social distancing and other health and safety measures are in place at the workplace.

Limited public transport capacity is likely to pose a significant conundrum for employers.  Whilst they may be able to put in place innovative social distancing measures, it remains to be seen how staff will be to travel into work.  This is likely to be even more problematic as we move into the winter months when, for example, cycling to work will not be a practical solution.

Employers also need to balance the desire to reopen with ensuring that they provide a safe working environment and that their employees are comfortable returning to work.  Sector specific safety protocols, designed to make the workplace COVID secure, are expected to be published by the government shortly.  Employers

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

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

Coronavirus: UK Job Retention Scheme – further government guidance

Summary

As an update to our earlier blog “Coronavirus: UK Job Retention Scheme – what we know so far from the UK government’s 20 March 2020 announcement”, please see below for further details.

Analysis of updated government guidance in relation to the Coronavirus Job Retention Scheme (as at 27 March 2020) >

Coronavirus: UK Job Retention Scheme – what we know so far from the UK government’s 20 March 2020 announcement

Summary

As an update to our earlier blog “Coronavirus – UK job retention scheme”, we have analysed the Retention Scheme announced by the UK government on 20 March 2020, based on the information released so far.

 

Analysis of the Coronavirus Job Retention Scheme (as at 20 March 2020) >

Coronavirus – UK job retention scheme

As an update to our earlier blog “Coronavirus – update on UK government measures in relation to employee absences and statutory sick pay”, set out below is a brief overview of the key measures that have, today, been announced by the UK government in relation to employees.

  • Employers will be provided with a grant to cover 80% of the salary (up to £2,500 per month) of employees who are not able to work, so that they can be furloughed, rather than dismissed. Employers can choose to top this up if they wish.
  • These grants will be backdated to 1 March 2020 and will be available for at least 3 months.
  • There will be no limit on the amount of funding under the scheme and the first grants are expected to be paid within weeks.
  • Additional measures have also been announced, including the business interruption scheme being interest-free for 12 months rather than 6 months, and VAT payments being deferred to the next quarter.

Extension of UK Off-Payroll Working Rules (often referred to as “IR35”) delayed to April 2021

Summary

The extension of the UK off-payroll working rules to private sector clients, due to take effect from April 2020, has been delayed by one year. This follows growing calls from businesses and business leaders given the difficult and uncertain times faced by many in light of the coronavirus pandemic. This is a huge relief for many contractors and businesses but it is just a postponement. The extra time should be used wisely to prepare for the changes; given the year-long extension it is unlikely that HMRC’s promise not to be ‘heavy handed’ on penalties during the first year of IR35 will stand.

The delay may, however, put some in a difficult position. If, in anticipation of the new rules coming into force, it has already been determined by a private sector client that a relationship would be one of employer/employee if the intermediary was not involved, the intermediary (in most cases the contractor’s PSC) should seriously consider operating PAYE and account to HMRC for employer/employee NICs and employee income tax accordingly. HMRC previously stated that it will not carry out targeted campaigns into earlier tax years where a client determines that a worker would be an employee if engaged directly by the client. However, HMRC may see things differently if a determination has been made in relation to the current working arrangements, in anticipation of the new rules coming into force, and that determination is now ignored. Some contracts may also already have been re-negotiated on the basis of

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