As the Furlough scheme winds down on 31 October, most employers will be gearing up to open their doors once more and/or considering engaging in the Chancellor’s recently extended Job Support Scheme (‘JSS’).
The JSS set the backdrop for a series of announcements and legislative changes to assist employers as the nation firefights against the pandemic and a much feared ‘second wave’.
But what do these changes mean for your business? Are you prepared for the end of Furlough? Will your employees be returning to the office? Are you aware of the implications if you fall foul of the Government’s new regulations?
As the pandemic continues and regulations constantly change – our employment team summarises the key considerations you need to be aware of ahead of 31 October and beyond.
Update to Job Support Scheme (‘JSS’) – JSS Open and JSS Closed
The JJS, the Chancellor’s much-anticipated successor to the Furlough scheme, was amended yesterday (22 October) in readiness for the national tiered lockdown measures which are likely to be enforced over winter months.
The JSS will be rolled out two-fold: JSS Open and JSS Closed. JSS Closed is specific to businesses which have been required to close under lockdown regulations.
It is important to note that the JSS has its own distinct rules and eligibility criteria. How does this work in practice?
Who is eligible for JSS? All employers (SMEs and larger businesses) with a UK bank account and a UK PAYE scheme registered on or before 23 September 2020 will be eligible for the scheme. Employers must have been on the employer’s Real Time Information submission on or before that date. To qualify for JSS Open, larger businesses will need to demonstrate that their business has been adversely affected by COVID-19.
When will you be eligible for JSS Closed? If your business is legally required to close as a direct result of COVID-19 restrictions. This includes businesses which remain open but are legally required to change their operation (i.e. restaurants restricted to collection only). If your workplace is required to close by local public health authorities as a result of specific workplace outbreaks however, you will not be eligible for the scheme. When you are legally allowed to re-open/open as usual, you will be only covered by the standard support offered by the scheme (under JSS Open).
What is the difference between the JSS Open and JSS Closed? Under JSS Closed, any business may apply for support (regardless of the size of the business). JSS Open requires larger businesses to demonstrate that turnover has fallen due to COVID-19 (based on their VAT returns). The Government have said they discourage a larger business from claiming from JSS if still making capital distributions (I.e. paying dividends to shareholders)
When will you be covered?The JSS kicks off from 1 November 2020 and is set to run to 30 April 2020.
What is covered by the standard JSS?Employees’ wages. NICs and pension contributions will not be covered and will still be payable as normal by the employer.
How much will the Government cover under JSS Open? The Government will now subsidise over one-third of the wages of an employee, provided the employee is working at least 20% of their normal hours (meaning those working just one day a week will be eligible). Under the previous rules, the employee had to have worked a third of their normal hours to qualify for the scheme. The employer must pay their wages in full for the hours worked, as per usual. The remaining hours not worked will be split between the Government and the employer (though the employer’s contribution to unworked hours has been reduced to just 5%). The Government’s contribution will be capped at £1,541.75 per month (61.67%). This is more than double the cap of £697.92 under the previous rules. There must be a written agreement between employees and employers agreeing to the changes.
How much is covered under JSS Closed? The Government will pay two-thirds of employees’ salaries, up to a maximum of £2,100 per month. Employers will not be required to contribute towards wages and will only be asked to cover NICS and pension contributions. It is essential that there is a written agreement between employers and employees agreeing to these changes.
Can employers top up wages beyond the amounts provided for in JSS Open and JSS Closed? Yes. Interestingly, the old rules indicated that employers would not top-up wages under the scheme.
When can the JSS claims be made? From 8 December 2020, 5 weeks after the scheme opens. Employers can claim in arrears for salary already paid and claims can be made via an online portal (akin to the Job Retention Scheme).
Can employers claim for an employee who has been made redundant or is serving a contractual or statutory notice period? No – though the position is unclear in respect of employees serving notice for any reason other than redundancy.
Update – 22 October:The self-employed grants have been increased from 20% to 40% of previous earnings since the JSS was initially announced. The Government are also increasing business grants, which will now cover businesses affected in high-alert areas to protect jobs
For more details on how the scheme will work in practice, how to qualify for the scheme, and how to claim, please see a detailed update by our team on the JSS https://www.curzongreen.co.uk/about-us/articles/589-furlough-scheme-mark-2-what-do-you-need-to-do-now.html.
Please do not hesitate to contact our specialist team for specific advice on the JSS and whether it can help support jobs in your business.
Job Retention Bonus
The Job Retention Bonus is available to employers in relation to each employee who has: (i) been subject to an eligible claim under the Coronavirus Job Retention Scheme; and (ii) remains continuously employed (and is not serving a contractual or statutory notice) on 31 January 2021. A ‘bonus’ is also claimable for any employee whose wages are covered by the JSS.
The effect of this scheme is that HMRC will make a one-off taxable payment of £1,000 for each eligible employee, as a ‘bonus’ to the business – meaning you do not need to pay this money to your employee(s).
To receive the ‘bonus’ you must havemade an eligible claim for the relevant employee(s) through the Coronavirus Job Retention Scheme and paid a salary of at least £1,560 (gross) to the employee between 6 November 2020 and 5 February 2021.
A claim for the ‘bonus’ will need to be presented between 15 February and 31 March 2021. This is only a 6-week window. Watch this space for further guidance on the process for making a claim, which is due in January 2021.
Return to work – is your workforce prepared and is it safe for them to return? Updates to health and safety legislation
We appreciate that for many, the JSS will not be viable and 31 October 2020 will mark a return to work for the workforce, subject to government guidelines at the time.
Legal duties as an employer:
Employers have a duty under s.2 and s.3 of the Health and Safety at Work Act 1974 toensure, so far as is practicable, the health, safety and welfare at work of its employees (as well as others who may be affected by their activities).
Employers also have an implied duty of care to take reasonable care of the health and safety of its employees and provide a reasonably suitable working environment for employees to work in.
What if an employee refuses to attend the office on health and safety grounds?
If an employee raises concerns about health and safety in the workplace and refuses to attend the workplace on such grounds, they are potentially protected from being subjected to detriment (i.e. any disciplinary action) and dismissal by the health and safety provisions in sections 44 and 100 of the Employment Rights Act 1996, as well as whistleblowing legislation.
Employees are protected from dismissal on grounds of absence from work, if such absences are due to a reasonable belief that attending work would put them in serious and imminent danger (and they could not be reasonably expected to avert that danger).
The concept of danger is broad, and the test is whether the employee reasonably believes attending the workplace would put them in danger. This belief may exist regardless of how COVID-secure the workplace is. Consideration should therefore be given before taking any measures in response, and employers should have systems in place for recording employee concerns and ensuring that support is given.
Employers should carefully consider any individual circumstances. Do any employees suffer from a disability? Do any employees have pre-existing health conditions? Are they classed as clinically extremely vulnerable? It is advisable to conduct risk assessment and to reach out to the workforce at this stage, to ascertain whether any circumstances exist which would make employees particularly susceptible to COVID-19. If so, extra care should be taken for these employees to ensure that they are not being treated less favourably and any reasonable adjustments are made as necessary, to prevent the risk of any potential discrimination claims being made.
What if an employee is concerned about using public transport? The position is less clear here and will depend on each employee’s individual circumstances and commute to work. It is likely that the protection awarded to employees in s.44 and s.100 of the Employment Rights Act 1996 may extend to protect employees with concerns on using public transport in travelling to work. Such can be the case even if employers propose measures such as staggered start and finish times to avoid the morning rush. We would recommend seeking specialist advice from our experienced team if in doubt.
What does this mean for employers?
Employers should take reasonable and proportionate steps to ensure that employees/workers can do their jobs safely during the pandemic.
Employees can potentially argue there is a risk to their health and safety in attending the office (either due to the office not being COVID-secure, the commute to the office or the practicalities in daily working). If they are dismissed or subject to a detriment as a direct result, it could open potential legal liability and therefore must be dealt with properly.
Practical steps to take:
The Government has issued sector-specific guidance (non-mandatory). It is advisable to consider this when ensuring that the workplace is COVID-secure. Failure to follow the same could result in enforcement action by the local authority.
Employers should conduct a COVID-19 specific risk assessment. This includes considering individual circumstances, such as age, pregnancy, disabilities, mental health and any other illnesses. Employers could consider circulating an assessment form to employees and tailor measures to suit individuals with specific needs. Consider including cleaning requirements, handwashing regimes and provisions for mandatory PPE in communal areas.
Any risk assessment should be formulated around the most recent Government guidance and should be revised regularly to manage the risk in accordance with the pandemic.
Health and safety policies should be revised to account for the changes to the legislation and kept under regular review.
Open channels for employees to feel comfortable communicating any concerns openly and ensure that a paper trail of such communication is kept. Speak with employees and encourage them to come forward if they do have any concerns.
Seek specialist legal advice before taking measures such as withholding pay or subjecting an employee to an absence review – our experienced team are here to advise on how to best navigate such situations.
The Self-Isolation Regulations – what should you do if an employee is self-isolating?
The Government has recently introduced the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020, SI 2020/1045 (‘the Self-Isolation Regulations’). Regulations 6 to 9 are of particular importance for employers.
Employers should understand these Regulations and their effect, as you could now be criminalised for allowing your employee to enter their place of work in certain circumstances.
What do they say? Regulation 7(1) states that employers must not knowingly allow any employee, worker or agency worker to attend any place other than the place where the employee, worker or agency worker is self-isolating during the period for which the employee is required to self-isolate.
Regulation 8(1) applies to employees and workers who are aware of the requirement for them to self-isolate under the Regulations and are due to undertake activities in the course of their employment at a place other than the place at which they are self-isolating.
Regulation 8(1) requires employees and workers to notify employers of the need for them to self-isolate and of the period they are required to do so ‘as soon as is reasonably practicable’. They are also required to do so before they are next due to start work within the isolation period.
When does Regulation 7 apply?This only applies in circumstances where the employer is aware of the requirement for the employee, agency worker, or worker is required to self-isolate (i.e. if this is already disclosed) and where the employer, worker or agency worker is attending the other place for any purpose related to their employment.
Employers will not be in breach of Regulation 7(1) if the employee, worker or agency worker attends the other place for a ‘permitted reason’ specified under Regulation 2(3) of the Regulations (i.e. to seek urgent medical attendance or to attend a court hearing).
Employers will also not be liable where they are unaware that the employee, worker, or agency-worker is required to self-isolate. Record-keeping will therefore be important.
What about agency workers? A similar duty applies to agency workers to inform you of the requirement for them to self-isolate and the relevant period for which they must do so. Agency workers are only required to notify one of their agency, end-user, or employer. Should you be informed by an agency worker that they are self-isolating, you must inform the other parties in the agency chain as soon as is reasonably practicable.
What happens if you do not comply?A breach of these regulations by the employer (i.e. knowingly allowing an employee to attend the office or any other place for a purpose related to their employment whilst they should be self-isolating) is a criminal offence and any directors (if a company) may be personally liable. Any company or individual ‘reasonably believed’ to have committed an offence may be handed down a fine of a sum between £1,000 and £10,000.
Practical steps:Employers should set measures in place to ensure that they have a clear and documented system for employees to notify the employer should they need to self-isolate, and that such measures are well circulated. It is worth keeping an audit of these measures. The more proactive employers are, the better.
Next steps beyond 31 October 2020.
For any employers looking to open their doors once more, post-furlough, there is a lot to consider.
It is of key importance to ensure that robust risk assessments and watertight health and safety policies are in place for those gearing up to return to work.
For specialist advice and assistance, or for bespoke drafting please do not hesitate to contact our experienced employment team at: firstname.lastname@example.org
This update has been prepared based on the information available and the Government guidance as at the time of writing (23 October 2020). We would advise you to consult the latest government guidance or contact our team for up to date advice.