Employment Update 2021: A Third National Lockdown and new Government support introduced for affected businesses and employees
Following the Prime Minister’s announcement of a further national lockdown for England last week, the Chancellor has announced that the Government will be implementing additional grants and extensions of existing schemes to help support businesses and protect jobs as a result of the latest lockdown restrictions and tightening of the Covid-19 restrictions.
On 5 January 2021, the Chancellor announced that businesses in England in retail, hospitality and leisure sectors are to receive a one-off top-up grant worth up to £9,000 per property, which is intended to help tide them over until the Spring. The devolved Governments of Scotland, Wales and Northern Ireland will each receive funding too to put in place devolved policies. The scheme is expected to benefit over 600,000 businesses, worth over £4.6 billion in total across the UK. The Chancellor has also announced that the next Budget is due to be held on 3 March 2021 and it is anticipated that a more comprehensive package of measures will be introduced to protect jobs and businesses to help the economy recover.
Under the newly updated scheme, any business which is legally required to close as a result of the new lockdown measures and which cannot operate effectively remotely will be eligible for a grant.
The one-off top-ups will be granted to closed businesses as follows:
The cash will be provided on a “per property” basis.
The new grants are in addition to the extended furlough scheme (see below) and to existing business support, including grants of up to £3,000 for closed businesses. Businesses should check the Government website which is regularly updated and apply for all eligible funding.
A discretionary fund of £594 million will be made available for local authorities and devolved administrations to support other businesses that are not eligible for the grants, who might also be affected by the restrictions.
Businesses will also be given until the end of March 2021 to access the Bounce Back Loan scheme, Coronavirus Business Interruption Loan scheme and the Coronavirus Large Business Interruption Loan scheme, which were initially due to close at the end of January 2021.
Furlough scheme extended until April 2021 and updated to include employees with childcare responsibilities
The Coronavirus Job Retention Scheme (‘CJRS’) has also been extended until 30 April 2021 as an additional measure to support businesses and affected employees. The CJRS scheme was due to finish on 31 March, but the Chancellor has confirmed it will now be extended for an extra month for employees in the UK. Employees need to have been employed on or before 30 October 2021.
Employers can continue to claim for up to 80% of employee’s salaries for time they haven’t worked, worth up to £2,500 per month, and will continue to be responsible for paying National Insurance Contribution payments and pension contribution payments for employees’ furloughed hours.
HMRC has updated its guidance on the furlough scheme to make clear it includes parents with childcare responsibilities. This follows extra calls for support for those working parents having to deal with forced school closures, home-schooling and childcare responsibility, alongside trying to work. There are of course a number of other potential options available for employers with employees who are unable to work because of childcare issues, including parental leave, flexible working, temporary changes to hours of work or agreeing a period of unpaid leave or annual leave with the employee.
Employees who are “unable to work (including from home) or are working reduced hours” because they have caring responsibilities arising from the Covid-19 pandemic can also be furloughed, which is a welcome clarification of the eligibility criteria for many employees across the UK.
This update has been prepared based on the information available and Government guidance as at 15 January 2021. We will provide more detailed updates as matters develop. We would always advise you consult the latest government guidance or contact our team for up to date advice.
When the general stay on possession proceedings came to an end on 20 September 2020, the court system faced increased demand from landlords who wanted to reactivate claims that had been stayed and increased demand from landlords who wanted to bring claims to seek to regain possession, that were unable to do so when the stay was in effect.
In anticipation for this increased demand and the backlog of possession cases, Practice Direction 55C (“PD 55C”) was introduced on 23 August 2020 to provide a temporary modification of Part 55 possession proceedings and set out new procedural steps required. The rules in PD 55C are to have effect for the period between 20 September 2020 until 28 March 2021, known as the “interim period”, and will be subject to review during this time.
The additional measures in PD 55C were implemented to assist the courts with the transition period of reactivating claims and to try to promote best practice and consistency in relation to possession proceedings in the context of the pandemic. The Government want to ensure housing possession proceedings are handled in a sensitive and proportionate manner given the public health implications of Covid-19 and the need to prevent homelessness, whilst also protecting the interests of private landlords.
Although the end of the stay may be welcomed news for landlords who can now resume their existing claims and/or issue new claims for possession, landlords are required to jump through more procedural hoops than before and it will now take longer for them to regain possession. The standard 8-week timescale for hearings will no longer apply while PD 55C is in force and landlords may also face difficulties in enforcing any order for possession while national lockdown measures are in effect.
Under PD 55C, different requirements will apply depending on when the possession claim was first issued.
Claims stayed prior to 3 August 2020
For any stayed claims brought before 3 August 2020, landlords who wish to reinstate proceedings stayed must complete a written “Reactivation Notice”, which they must provide to both the court and the Defendant.
This applies to any claims whose trial date was set prior to 27 March 2020 and any possession hearings that were due to be heard between 27 March and 23 August that were automatically stayed pursuant to Practice Direction 51Z. However, no reactivation notice will be required when a final possession order has been made.
The Reactivation Notice must:
With the second lockdown now in place and wide-ranging anticipated redundancies ahead across job sectors, many businesses will be making tough decisions about their business needs and workforce in the current climate over the next few weeks. The second lockdown entails the compulsory closure of many stores on the high street and hospitality venues. This may lead to an increase in employees’ roles being terminated, by reason of redundancy for example, and settlement agreements being offered by employers for any live or potential legal disputes which may arise from the same.
A settlement agreement is a legally binding contract between an employer and employee. It settles any claims the employee might have against the employer. A settlement agreement often leads to or follows a person’s employment being terminated (although it can be used to settle claims where the employment is ongoing too).
A settlement will be on mutually agreed terms and will normally include an enhanced severance payment by the employer, in return for the employee waiving their statutory rights and agreeing not to pursue any Employment Tribunal or Court claims arising out of their employment or its termination. There may be a period of negotiation and discussion between the employer and employee or their legal advisers before a mutually beneficial compromise is reached.
The termination package in a settlement agreement will often include, among other things, notice pay and holiday pay, contractual benefits, and any redundancy pay/any enhanced compensation for loss of employment (which can be paid tax free up to £30,000). The agreement may contain provisions regarding confidentiality, the return of employer property and an agreed reference, among other non-financial rights and obligations.
A COT3 Agreement is another way an employee and employer can settle actual or potential Employment Tribunal claims that an employee may have and is usually reached with the assistance of an ACAS conciliator. A COT3 is a form used to record the terms of settlement agreed following conciliation and once agreed, forms a legally binding contract between the parties.
Settlement agreements can be an effective way of resolving an employment dispute on agreed terms as they can provide certainty and finality for both sides. They are often concluded, and resolve disputes (or potential disputes) between the parties, without the need for legal action. There are, however, certain rights which cannot be compromised and excluded via a settlement agreement, such as rights which an employee has in respect of their accrued pension rights under a pension scheme and personal injury claims which they are unaware of at the time of the agreement.
Further to the announcement of a second national lockdown on 31 October 2020, the Government has confirmed that the Coronavirus Job Retention Scheme (or ‘Furlough’ scheme) will be extended.
The Furlough scheme is now expected to remain open until December 2020, with the specific end date to be clarified.
This means that the Job Support Scheme (‘JSS’), which had been set to kick in on 1 November 2020, will be postponed until the Furlough scheme comes to an end.
What does the extended Furlough scheme mean for employers?
The extended Furlough scheme sees an increase in the Government’s financial contribution to the level they were contributing in March 2020, at the onset of the pandemic.
Employers will, once again, be able to claim up to 80% of wages (capped at £2,500) for each employee for the hours not worked. The overall cost to employers to retain employees will therefore be less than it was under the most recent iteration of the Furlough scheme which ended on 31 October. The extended scheme is more beneficial than in October 2020.
Employers will still be responsible for paying pension and NICs.
Is flexi-furlough possible under the extended scheme?
Yes, this is confirmed in the Government’s most recent update.
On 1st October 2020, the UK government introduced a scheme enabling NHS and social care sector workers to claim a refund on the Immigration Health Surcharge (IHS). While migrants will still have to pay the surcharge upfront, they will be able to claim refunds retrospectively for six-month periods.
This scheme fulfils a promise made by the Prime Minister in May to reward the migrants who have played a particularly invaluable role this year in keeping the NHS running.
In August, a Tier 2 Health and Care visa was announced, allowing migrants looking to work in a select few roles to obtain a visa and remain exempt from the IHS. This IHS refund scheme is much more inclusive, as, unlike the health and care visa, it is not limited to people who apply for a visa with the intention of working with the NHS.
The scheme enables migrants who work across the sector, including those working as hospital support staff and care workers, to claim a refund on the surcharge they have paid. A more exhaustive list of eligible roles and employers can be found here(Annex A).
While migrants working in this sector are still required to pay the IHS upfront, this scheme allows them to claim refunds for themselves and their dependants every six months, on a rolling basis as long as they meet the eligibility criteria.
To be eligible, applicants must be on a visa that gives them the generic “right to work”, must work in the health and social care sector, have been doing so for a continuous period of at least six months (starting on or after 31st March 2020) and must have worked at least 16 hours each week for the duration of the six-month period. This refund can then be claimed for each six-month period where you meet these criteria.
You can apply for this refund online and find more guidance on the government website.
This article was written by Eloise Evans, legal assistant.
If you think you might be eligible for an IHS refund or would like assistance to apply for a Health and Care visa, do not hesitate to contact our offices.
The Government has introduced new laws, set out in the Employment Rights Act 1996 (Coronavirus, Calculation of a Week's Pay) Regulations 2020 SI 2020/814, designed to protect employees who are currently furloughed and to prevent them from being short-changed in a redundancy situation and to protect their statutory entitlements.
The legislation, which will come into force today 31 July 2020, will ensure that those employees who are made redundant and having been previously retained under the Coronavirus Job Retention Scheme are entitled to a statutory redundancy payment based on their pre-furlough wages.
Employees with more than 2 years’ continuous service would be entitled to a statutory redundancy payment which is calculated based on length of service, age and weekly pay, up to a statutory maximum currently £538 per week. Average weekly pay is usually worked out on the pay received over the 12 previous weeks up to when the employee is notified of the redundancy. The new regulations ensure that employers, when carrying out the calculation, treat any weeks where an employee has been paid a reduced furlough amount within that 12-week period, as instead the employee having been working at a full 100% rate of pay.
The changes will also apply to the calculation of a week’s pay for the purpose of a basic award for unfair dismissal, for statutory notice pay (after one month of employment, one week per year of service up to a maximum of 12 weeks), compensation for failure to provide a written statement of reasons for dismissal, remuneration for time off to look for employment or arrange training, compensation for failure to comply with an order for reinstatement or re-engagement, and the assessment of whether an employee is to be taken to be kept on 'short-time' for a week in accordance with S.147(2) ERA.
This is welcome news to clear up the uncertainty for employers and to give protection to employees, who will not be disadvantaged by calculations on reduced pay rates. Given that more redundancies are, unfortunately, expected in the coming months, the clarification from the Government is timely.
Please note this article reflects our understanding of the law as at 31 July 2020. We highly recommend consulting us before making key decisions, as this is a vastly developing area and it may well have changed. If in doubt, contact our team.
On 8 July 2020, Rishi Sunak announced the Government's 'Plan for Jobs' which introduced several new measures that the Government plans to implement to help rebuild the UK’s economy following the Covid-19 pandemic.
The pandemic has greatly impacted the UK’s economy with over 9 million jobs (more than one quarter of the UK workforce) being furloughed through the Coronavirus Job Retention Scheme (“CJRS”). The new measures are designed to help support, protect and create jobs once the CJRS scheme ends in October 2020, whilst also preventing unemployment in the UK from soaring.
Policy 1: Job Retention Bonus Scheme
As the scheme starts to wind down, the Government are keen to encourage employers to bring employees currently on furlough back into the workplace.
To incentivise employers to try to retain furloughed staff, the Government have announced that they will make a one-off payment of £1,000 to employers for every furloughed employee they reinstate in the workplace, with the proviso that the employee remains continuously employed until the end of January 2021. The focus of this scheme is to support those employees who have been furloughed in being retained. To be eligible for the scheme, employees must earn above the Lower Earnings Limit (£520 per month) on average between the end of the CJRS in October 2020 and the end of January 2021. Payments from the Government will be made from February 2021 and further details about the scheme will be announced by the end of July.