EMPLOYMENT LAW

Q+A on recent employment changes

What does furloughed mean?

Prior to the Chancellor’s announcement of the Coronavirus Job Retention Scheme (JRS) most employers only had the option of lay off or redundancy in order to address a downturn in work and ‘furlough’ was an unfamiliar term to most people. Furlough essentially means a temporary leave of absence from work with those staff being retained on their employer’s payroll.

Staff should not be carrying out any services for their employer or generating revenue in any way during the period of furlough.

 

What assistance is provided under the JRS?

All employers can get 80% of their furloughed staff wages paid by the Government (up to a max payment of £2500 gross per staff member), with no obligation on employers to pay the extra 20% (or more if the employee is on £37,500 plus). It will apply to all staff who are paid through PAYE as it works through a HMRC portal.

The UK government has confirmed the JRS will be available to furloughed staff until the end of May 2020. If the JRS is not extended beyond this period furloughed staff can return to their job or their employer may consider introducing periods of lay off, short time working or redundancies.

 

Who can benefit from the JRS?

Anyone who was on your payroll as of 28 February 2020 including part time staff, apprentices, zero hour workers and agency workers. HMRC have also clarified (in writing to Martin Lewis, Money Supermarket Expert) that firms can rehire and furlough those who left their job for a new job which then fell through due to Covid 19. This allows for those who were on the payroll of a company on 28 February, but subsequently left, to be put back on payroll and furloughed.

Employers must select furloughed staff fairly and particularly be mindful of their obligations pursuant to:

  • Part-time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000;
  • Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002; and
  • Agency Workers Regulations (Northern Ireland) 2011

Additionally, employers must also ensure that they do not select staff for furlough based on discriminatory reasons, on the basis of a worker’s disability, gender, sexual orientation, race, religion, or political belief.

 

What can an employer claim back from HMRC under the Job Retention Scheme?

  • Auto enrolment minimum pension contributions on 80% of each worker’s salary
  • Employer’s National Insurance Contributions on 80% of each worker’s salary
  • 80% of each worker’s gross monthly salary (excluding bonus or commission), capped at £2,500 per month per worker.

 

What does the JRS exclude?

If an employer pays a 20% top up (or more, should the staff member’s monthly salary exceed £2,500) the JRS will not allow the employer to reclaim any pension contributions exceeding auto-enrolment minimum contributions on the 80% or to reclaim employer National Insurance Contributions on the 20%.

 

What if you continue to have work for your staff to do?

Government guidance states that no one should travel to work unless it is absolutely essential. There are broad sectors of ‘essential’ services include health and social care, education and childcare, key public services, local and national government, food and necessary goods, public safety and national security, transport and utilities and communication and financial services.

Therefore, homeworking has become the new normal for many businesses that are not deemed ‘essential’.

 

Are there any risks associated with staff working from home?

Employers continue to be bound by health and safety legislation even though their staff are working from home and employers have the usual duty of care to their home-based employees.

Employers should ensure they have a detailed homeworking policy setting out key steps to be taken to protect health and safety. At a basic level, employers should ask their employees to confirm they have materials, desks and equipment that won't cause injury and remind those working over six hours to take a break from working.

Employers should be aware of their employees’ mental health and wellbeing, now more so than ever. Lone working can be isolating and management should ensure that their staff do not feel swamped with work or unable to reach out for help when required.

Depending on the type of work your staff are completing it may be more difficult to manage staff performance. Providing daily instructions and quantifiable targets or objectives can be helpful for both parties.

Employers should have a policy on data security to cover home workers. Homeworking presents new risks and employees should know what steps should be taken to ensure GDPR compliance. For example, employers may require staff to securely lock their work away when they are not working on it.

 

What are the legal risks with operating an ‘essential’ business during the Covid-19 crisis?

For those businesses deemed ‘essential’ under government guidance, employers must still take sufficient steps to protect their employees' health and should do so by following the latest government guidance and adhering to health and safety law provisions. Currently, there should be steps in place to assist staff in social distancing i.e. keeping 2 metres apart from each other where possible. Workplaces must be regularly sanitised and staff should be provided with personal protective equipment if required.

A failure to follow up-to-date government guidance may result in an employee who contracts Covid-19 during the course of their employment bringing a personal injury claim against their employer.

Employers should also be mindful that they have heightened duties in respect of:

  • pregnant employees who could lodge a claim of pregnancy discrimination under the Sex Discrimination (NI) Order 1976;
  • disabled employees who may require reasonable adjustments pursuant to the Disability Discrimination Act 1995.

Employers should keep up-to-date with government guidance and seek advice if required.

 

How do employer’s deal with annual leave requests during the covid-19 crisis?

Regulations have been amended in mainland UK to allow up to four weeks of annual leave entitlement to be carried over into the next 2 years, meaning employers no longer need to ensure their workers have taken their statutory entitlement in any one year. This means that staff will not lose out on annual leave entitlement because they have not used it due to Covid-19. Hopefully the folks on the hill can ensure that similar regulations are introduced in NI...

The Coronavirus Act 2020 in GB also introduces a new form of statutory unpaid leave, known as emergency volunteering leave (EVL). Employees will be able to take a maximum of four weeks' of EVL in any 16-week volunteering period. Employee terms and conditions will continue as normal through any EVL period and staff have a right to return to work on the same terms and conditions afterwards are subject to protection from detriment and dismissal for taking EVL.

 

What if my employees contract covid-19?

Employees are still eligible for Statutory Sick Pay (SSP) of up to £94.25, for up to 28 weeks. However SSP is now available to those staying at home to care for sick people in their household and from 13 March 2020 SSP is now available from day one of a worker’s absence, rather than day four. Employers can reclaim the first 14 days of SSP from the government.

 

What about migrant workers, have there been any recent changes to immigration law for workers?

Doctors, nurses and paramedics with visas expiring prior to 1 October 2020 will automatically receive a one year extension to their visa, however the law remains unchanged in respect of those working outside this prescribed list.

 

Should you require advice on lay off, short time working, redundancy, employer duties or the application of the JRS please get in touch.

 

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