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In March 2020 the government acted quickly to bring in new measures designed to help the country adjust to life during the coronavirus pandemic – one of the most important areas was in employment law and policy. This has helped some employers adapt to the ‘new normal’ and provide as much business continuity as possible during a time of serious economic disruption.

As the second spike continues, many firms will be thinking about the next stage of their plans to make it through the pandemic – though recent changes announced by the government may make it easier to hold off on redundancies until the spring.

Here are the things you need to know about your legal rights and obligations as an employer in relation to Coronavirus:

Have there been any changes to the Furlough Scheme?

The government was preparing to end the Coronavirus Job Retention Scheme on October 31st and replace it with the far less generous Job Support Scheme and targeted support for employers affected by the tiered lockdown restrictions.

However, the recent announcement of renewed lockdown measures has meant that the CJRS will now run until March 2021. Some changes have been made which we summarise below:

Any staff qualify

The government had previously stopped employers from furloughing any new staff who had not been furloughed prior to the 30th of June. However, the government have now announced that any member of staff for whom an RTI submission has been made prior to 30th October will be eligible for furlough going forward.

Part-time working

Since the 1st of July, furloughed employees have been able to work on a part-time basis – you will pay them for the hours they work and can claim for 80% of the difference between this and the hours they would normally work.

e.g if an employee normally works 40 hours at £10ph and you can only offer them 16 hours, you can claim for 80% x 24 hours x £10 = £192. You will pay £160.

You can choose to top up the remaining £48 if you wish but you do not have to.

Remember that any changes to an employee’s working pattern or pay will likely require a variation of the employee’s contract (they may still have a ‘contract’ even if it is not in writing). This will require consent from the employee in writing. If you need help with contract variations (such as template letters) we would be happy to provide advice.

The minimum claim period is now 7 days rather than three weeks

Since the 1st of July, the minimum claim period has been seven days unless the last or first day of the month is included in the period and you claimed for the period immediately before, due to the claims having to be concluded by the end of the month.

Remember to keep evidence

As with the furlough scheme, you must keep the following evidence for all furloughed workers for six years, in case of HMRC audit:

  • The employee’s usual hours in any claim period;
  • The number of hours actually worked in any claim period;
  • Whether any employee was furloughed or not during a claim period.

Employers to contribute more

The scheme became progressively less generous on the part of the government, with the aim of it being completely phased out by the 31st of October:

  • Since the 1st of August, employers have had to start covering furloughed employees’ National Insurance and pension contributions;
  • From the 1st of September the employer had to cover 10% of wages in addition to NI and pensions;
  • From the 1st of October the employer will had to cover 20% of wages in addition to NI and pensions.

As far as we can tell, the requirement for employers contribute to or top-up wages will no longer apply for the time being, but employers still must cover pension and National Insurance contributions for all furloughed staff.

My employee is off sick or self-isolating because of Coronavirus – do I need to pay them?

Yes, you will need to pay them – but only at the rate of Statutory Sick Pay (SSP). This is currently £95.85 per week.

As you know, traditionally employees receive SSP when off work due to short-term illness, however there is a temporary period of three “waiting days” before SSP becomes payable.

For people who are self-isolating, shielding or displaying coronavirus symptoms, you will now need to pay SSP from the first working day that they stop working. You may be able to claim back any SSP paid to employees due to Coronavirus through the Statutory Sick Pay rebate – see government guidance.

My staff aren’t taking their usual holiday entitlement because of the effect of coronavirus – what will happen to their entitlement?

Employees may be able to carry over up to four weeks’ worth of annual leave into the next two leave years.

The Working Time Regulations have been amended to provide that holiday entitlement may be carried over where it was “not reasonably practicable” for the worker to take some or all of their leave as a result of the effects of Coronavirus. The government has not provided much guidance on why it may not be “reasonably practicable” for an employee to take leave.

The government guidance suggested that an employer could request that an employee take leave during furlough, but that the employer should consider, “whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time”, which suggested that it may be “reasonably practicable” for an employee to take leave if they’re on furlough, but not if they are self-isolating or during periods of national lockdown.

Firms will only be able to require a worker not to take carried-over leave in future years where the employer has ‘good reason’ to do so. Again, there is no definition of ‘good reason’, but this will presumably be similar to the normal position – you can stop an employee taking holiday if, for example, that will be a particularly busy period for your business.

Holiday entitlement during this period is a potential point of conflict between firms and their employees, as it will not always be clear what will count as a good reason for carrying over leave, or for refusing to allow an employee to take carried over leave. For example, can an employee claim it was not reasonably practicable to take their leave due to restrictions on international travel?

If you need more detailed advice on this issue please get in touch with us.

I’m considering redundancies – what do I need to know?

For the most purposes Coronavirus has not affected the redundancy process, but there is one important thing to bear in mind when making furloughed workers redundant.

Redundancy pay is calculated the basis of an employee’s normal pay. For furloughed workers this means paying them based on 100% of their normal pay rate, even if you have not been topping up their furlough pay and only paying the 80% funded by the government.

This is particularly relevant where an employee works irregular hours – you will have made a calculation of their average pay when submitting your application to HMRC for furlough payments. You must use this figure when calculating their redundancy pay.

For more information on your legal obligations when making employees redundant, see our articles on redundancy – or ask for advice.

Employment law – know their rights!

Dealing with economic uncertainty is bad enough without having to consider potential employment claims.

But there is no need to fear – act early to get the best advice and support, and you can protect yourself from employment law mistakes or nuisance claims. Get in touch by telephone, e-mail or Facebook to book a consultation today.

Post Author: Oliver Winters

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