Coronavirus Job Retention Scheme

As you will be aware, the CJRS has been extended to the end of April 2021, with 80% of salaries being paid through HMRC,  up to a maximum of £2,500.  Employers remain responsible for paying pension contributions and National Insurance contributions. There is no news of any further extension to the scheme, despite the fact that we anticipate that some businesses will not be permitted to open until early summer. I will keep you updated with any developments.

The guidance setting out which employees are eligible to be furloughed is at Check which employees you can put on furlough to use the Coronavirus Job Retention Scheme – GOV.UK (www.gov.uk)

Key points are:-

• Full-time, part-time, agency, flexible and zero-hour employees are all eligible, provided that the reason they cannot work is covid-19 related
• Any employees who are extremely clinically vulnerable and have been advised to shield are eligible, regardless of whether there is a business reason to furlough them -this includes the additional 1.7m due to get shielding letters this week
• Employees who are unable to work, including from home, due to caring responsibilities arising from coronavirus, such as caring for children who are at home as a result of school and childcare facilities closing, are eligible regardless of whether there is a business reason to furlough. (As schools start to open to children, I expect the number of employees eligible under this provision will reduce).
• Employers can claim for employees who were employed on 30 October 2020, as long as they have made a PAYE Real Time Information (RTI) submission to HMRC between 20 March 2020 and 30 October 2020. This applies even where the employer has not previously claimed under the scheme.
• From 1^st December 2020, employees are not eligible to be furloughed during any period of statutory or contractual notice
• Furlough is not to be used to cover periods of pre-booked holiday where the employees would otherwise be in work
• I believe that the scheme can not be used to cover employees who are sick or self-isolating due to COVID-19 – in such cases there is an entitlement to SSP
• From 10^th December 2020 employees on long term sick have no longer been eligible (unless they would have been furloughed for business reasons)

If you have any queries about the scheme, please contact me.

Updated Shielding List

This week the government announced that an additional 1.7 million people will be advised to shield. I understand that emails/ letters are already being received. Whilst this bumps them up the priority list for vaccination, it also has implications on their workplace. Current shielding advice has been extended to 31^st March 2021.

The current government guidance for people who are shielding states “You are strongly advised to work from home because the risk of exposure to the virus in your area may currently be higher. If you cannot work from home, then you should not attend work.”

As set out above, provided they were employed on 30^th October 2020, people who are advised to shield are eligible to be furloughed under the Coronavirus Job Retention Scheme. You do not need to have used the scheme before to make a claim.

All furloughed employees should sign a furlough agreement. Please let me know if you require such an agreement.

I am however hearing of employees who have decided that they do not want to shield, despite being advised to. In such circumstances, where they are unable to work from home, I suggest that you respond to them along the following lines:-

Dear [INSERT NAME]

I understand that you have recently been advised to shield. The current government guidance for you therefore states “You are strongly advised to work from home because the risk of exposure to the virus in your area may currently be higher. If you cannot work from home, then you should not attend work.”

You have said that you would like to continue to attend work. I acknowledge that the guidance is not mandatory, but your health and safety must be a priority. As you are aware, we have followed government guidance to reduce the risk of COVID-19 transmission and we have risk assessments in place. We will continue to review these and follow current guidance.

Given that you have been advised to shield, and given that you cannot work from home, you are eligible to be furloughed. If you would like to be furloughed please let me know and I will provide you with a furlough agreement to sign.

You are therefore welcome to remain at work but please let me know if you change your mind.

Redundancies

In the absence of any further extension to the furlough scheme, I anticipate that a number of employers will be considering redundancies over the coming weeks. Many businesses put plans on hold when the rules of the furlough scheme changed on 1^st December 2020, meaning that employees could not be designated as furloughed during any notice period.

There is no restriction on employees being furloughed during redundancy consultation, so businesses needing to make redundancies are able to commence redundancy consultation before the end of the scheme.

Where less than 20 redundancies are anticipated, there is no statutory procedure to follow and most processes can be completed within about 2 weeks. Where 20 or more redundancies are anticipated (within a 90 day period) there are statutory timescales that must be complied with. Depending on the number of anticipated redundancies, the consultation process can take up to 45 days.  You will therefore appreciate that, for planned large scale redundancies, it may be advisable to start the consultation process in a few weeks if it is to tie in with the end of the furlough scheme.

Common issues that need to be considered where a business is contemplating redundancies include:-

• Collective consultation – what the obligations are and when must a business collectively consult
• If collective consultation is needed, how should employee representatives be appointed
• How long should consultation take
• How to work out who should be in each redundancy pool
• What criteria can be used to select employees in a redundancy pool
• What ways can we avoid redundancy – such as pay cuts, reduced working hours, lay off
• What to do if an employee refuses to engage in the consultation process
• How to consult with employees on maternity leave or long term sickness absence
• How to deal with employees on zero hours contracts
• How to respond to requests for voluntary redundancy
• How to calculate redundancy entitlements
• What is a fair procedure

Please contact me if you require any assistance or advice regarding redundancies.

Contracts of Employment

All my clients are aware that up to date contracts of employment can protect a business. Given recent experiences, I would suggest that contracts are updated to include the following:-

• a clause entitling the employer to lay off employees or introduce short time working
• subject to my advice below, a clause making it a condition of employment that all employees in certain roles (other than those with genuine medical conditions where this is not possible) are vaccinated against COVID and that the vaccinations are up to date
• a clause to address homeworking and any additional requirements on employees

I am willing to carry out a free review of all employment documentation, including contracts and handbooks. I will produce a report setting out recommended changes together with a fixed fee quote for updating your documentation. Please let me know if you would like to take advantage of this offer.

Home working/ Flexible working

The current guidance is that people should only leave their home for work if they cannot reasonably work from home. Whilst I accept that many employees cannot work effectively at home, this may be insufficient to justify a requirement to work in the office, especially where employees worked from home in the first lockdown.

We are however seeing increasing numbers of employees asking to return to work due to mental health issues. Where the employee has a supporting letter from a GP or occupational health adviser, this can be permitted. Where there is no medical evidence, it is advisable to ask the employee to provide proof of their condition. Clearly, where employees do return to work, risk assessments should be carried out and guidelines should be followed to make sure the workplace is safe.

As workplaces begin to open, some businesses are planning a more flexible approach to working arrangements, promoting a continuation of homeworking for at least part of the working week. These employees will need to ensure that they have up to date contracts of employment to cover homeworking requirements.

We are also seeing an increase in the number of flexible working requests being made by employees. Many employees are justifying their requests by saying that they were able to work from home during lockdown so there is no reason for them to return to the office. Employers receiving such requests should take care and should ensure that they follow a reasonable procedure in responding. If an employer does not want to grant the request, they should refer to at least one of the eight business reasons that can be used to justify refusal. Please contact me if you would like assistance in responding to a flexible working request.

Schools opening

As stated above, provided they meet other eligibility criteria, parents are currently eligible for furlough if they are unable to work due to childcare responsibilities.

As schools start to reopen, there will be an expectation that these employees will be able to return to work (currently from home unless they cannot reasonably work from home). Some parents will have previously relied on after school child care and, as such, may ask that they are flexibly furloughed with their working hours being limited to normal school hours.

Most of my clients are taking a flexible approach in these cases. Flexible furlough arrangements can be put in place and amended working hours can assist.  It is however important to remember that the decision on whether to furlough an employee rests with the employer. An employee cannot demand that they are furloughed, even when they have childcare responsibilities.

S 44 of the Employment Rights Act (no change from my previous advice)

As I have previously advised, where an employee refuses to attend work in circumstances where they reasonably believe there is a serious and imminent danger to their health and safety, they must not be subject to detrimental treatment. As such, if you have any employees who are unable to work from home but are refusing to attend the workplace due to concerns about H&S, you should not subject them to any detrimental treatment. This will include taking disciplinary action against them or downgrading attendance figures in the context of a redundancy selection process.

There is still much debate on whether employees refusing to attend work in these circumstances are entitled to be paid or not. I still believe that the appropriate response is to withhold pay.

In the first instance, provided the employer has followed all government guidance in making the workplace Covid secure, and provided the employee has no specific reason for refusing to attend work (such as being more susceptible or vulnerable to the virus), we would argue that it was not reasonable for the employee to believe there was a serious and imminent danger to their health and safety. If we are able to succeed on this point, the employees will not be protected from detrimental treatment.

In any event, by withholding pay, one of the following scenarios will occur:-

• the employee would return to work;
• the employee would remain off work and would be unpaid (and other employees would not be encouraged to raise similar concerns in the expectation of getting paid time off work);
• the employee would remain off work and would be unpaid, but would submit a claim for unlawful deduction from wages – it is unlikely that such a claim would be considered by the tribunal within the next 12 months. In the event that the claim is successful, the employer would be ordered to reimburse deducted wages so would be no worse off than they would have been had they paid the employee in the first place. In addition, cash flow may be in a stronger position that time; or
• the employee would resign, claiming constructive dismissal – again, it is unlikely that such a claim would be considered by the tribunal for at least 12 months.  As such, in the current economic climate, the employee would risk being without salary or compensation for a significant period – this in itself is likely to be a deterrent to employees considering this option. Provided there was no discrimination, the maximum value of the claim would be 12 months’ salary plus a basic award equal to the statutory redundancy entitlement. The employee would also be required to mitigate their loss by trying to find alternative employment. Any income from a new job would be deducted from the value of the claim. The cost to the employer of one constructive dismissal claim may therefore still be less than the cost of paying full salary for other employees jumping on the bandwagon in the event that employees refusing to attend work receive full pay.

If you have any employees refusing to attend work, please contact me so I will be able to advise on the specific circumstances. I am aware of a number of “s.44 letters” circulating online so I am expecting a few to appear.

Vaccinations

This is an issue that is being addressed a lot in the media. Some employers have announced that they will make vaccination compulsory and this is causing much debate.

My view is that employees seeking to make vaccination compulsory for existing employees are likely to find that this is unlawful. In particular,  they could receive claims of constructive dismissal (on the ground that the requirement is wholly unreasonable), disability discrimination, religious discrimination or sex discrimination.

That said, where employees work in the NHS or care sector, employers will find it easier to justify a requirement for all employees to be vaccinated, due to the fact that they need to reduce the risk of staff passing the virus to vulnerable patients and residents.  In order to strengthen any defence to claims of unfair dismissal, these employers would need to prove that there were no other suitable roles for the employee. They would also need to talk to the individual employees to see if it was possible to address any of their specific concerns, perhaps by obtaining another version of the vaccination.  

I also believe that some employers will be able to insist that future employees are vaccinated before commencing employment (ie. make vaccination a condition of employment). Provided that any requirement excludes those who are unable to be vaccinated due to medical conditions, religious belief or pregnancy, and provided the employer can justify the requirement, I believe this will be lawful. I suspect that this will apply to a number of sectors where there is an increased risk of transmission including:-

• care
• childcare establishments
• retail
• emergency services
• home services (where employees are required to work in homes of the public)
• leisure/ sport facilities

Please contact me if you would like to discuss this further.

COVID-19 testing (no change from my previous advice)

The government have issued guidance to employers who wish to introduce testing for employees. The guidance can be found at Coronavirus (COVID-19) testing: guidance for employers and third-party healthcare providers – GOV.UK (www.gov.uk)

In particular, it confirms that before deciding to establish a testing programme, employers are advised that they are clear on:

• who the testing will cover – for example, whether this is all directly employed staff, or includes individuals working onsite, like contractors
• what the focus of the programme is: staff with symptoms or without symptoms
• how often staff will be tested
• the appropriate facilities for carrying out the tests
• which test should be used (to be clear, virus tests are designed to detect active infection whereas antibody tests only reveal evidence of previous infection)
• what the arrangements will be for any individual who does not wish to be tested
• how the employer will use test results, including its policies on matters like handling health information, absence from work, self-isolation, diversity, non-discrimination, and so on
• the compatibility of the programme with its legal responsibilities to staff including under health and safety, equalities, data protection and employment law
• how, and by who, the legal duty to report test results to Public Health England (PHE) will be carried out
• the affordability of implementing a testing programme

I believe that employers will have stronger cases for insisting on testing for employees, given that no substance will be inserted into the body. In addition, I believe that employers will be able to justify the requirement to test those who are still in the workplace, on the basis that a large proportion of people who test positive are asymptomatic. Asymptomatic people can still pass the virus to others, so testing allows you to have more control over the workplace and to protect other employees.

Employees may be reluctant to agree to be tested as they may be concerned that, if they test positive they will be required to self-isolate and will only receive SSP. This is an issue that you should therefore consider. Could your employees work from home or would you consider temporary enhanced sick pay to protect the workforce? 

I hope that this assists but please do not hesitate to contact me if you have any queries or require assistance on any employment/ HR issues.

Amanda Pillinger
amanda@pillingerandassociates.co.uk
01789 336957 / 07764 764806