Category: Employment Law

The government has published further guidance on how the forthcoming Job Retention Bonus Scheme will operate. The scheme will enable eligible employers to claim £1,000 for each eligible employee in respect of whom they have previously made a valid claim under the Coronavirus Job Retention Scheme (CJRS) and who remains in continuous employment until at least 31 January 2021 following the closure of the CJRS on 31 October 2020.

The policy paper indicates that the one-off bonus payment is intended to provide additional support to employers who keep on their furloughed employees in “meaningful employment” after the CJRS ends and it states that further detailed guidance on the operation of the scheme will be published in September 2020.

Employers will be able to claim the bonus via GOV.UK after they have filed PAYE for January 2021 and payments will be made from February 2021. 

Employers will be able to claim for employees who:

• were furloughed and had a CJRS claim submitted for them that meets all relevant eligibility criteria for the scheme
• have been continuously employed by the employer from the time of the employer’s most recent claim for that employee until at least 31 January 2021
• have been paid an average of at least £520 a month between 1 November 2020 and 31 January 2021, i.e. a total of at least £1,560 across the three months – the employee does not have to be paid £520 in each month, but must have received some earnings in each of the three calendar months that have been paid and reported to HMRC via Real Time Information (RTI), and only earnings recorded through RTI records can count towards the average minimum earnings threshold
• are not serving a contractual or statutory notice period that started before 1 February 2021
• have up-to-date RTI records for the period to the end of January 2021.

HMRC will withhold payment of the bonus where it believes there is a risk that CJRS claims may have been fraudulent or inflated, until the enquiry is completed.

The bonus will be taxable, so employers must include the whole amount as income when calculating the taxable profits for Corporation Tax or Self-Assessment.

Employers should now ensure that their employee records are up-to-date, including accurately reporting their employee’s details and wages on the Full Payment Submission (FPS) through the RTI reporting system. They should also ensure all their CJRS claims have been accurately submitted and that any necessary amendments have been notified to HMRC.

The government has published draft clauses for insertion into a new Finance Bill 2020-21, to be introduced into Parliament in the Autumn. These include changes which will affect employers who make termination payments.

The part of a termination payment which is treated as being a payment in respect of the employee’s notice period and subject to income tax and NICs is called the “post-employment notice pay” (PENP). The provisions will provide an alternative PENP calculation where an employee’s pay period is defined in months, but their contractual notice period is defined in weeks or days, or where the post-employment notice period is not a whole number of months. This will ensure that all employees’ PENP is calculated consistently on the termination of their employment.

The provisions will also bring PENP within the charge to UK tax for individuals who are non-resident in the year of termination of their UK employment.

The measures will take effect from 6 April 2021 and will apply to those employees who both have their employment terminated and receive a termination payment on or after 6 April 2021. Since October 2019, HMRC has, in any event, exercised managerial discretion to provide for an alternative calculation for PENP for use where it’s advantageous to the employee and this will continue to apply until 6 April 2021.
 

The Statutory Sick Pay (Coronavirus) (Suspension of Waiting Days and General Amendment) (No. 2) Regulations 2020 came into force on 6 July 2020. The regulations:

• extend statutory sick pay (SSP) to employees who are required to self-isolate because they are in the same ‘support bubble’ as someone who has coronavirus or coronavirus symptoms, where they are not able to work from home – in England, support bubbles are called linked households and, in Wales and Scotland, they are known as extended households. The SSP entitlement based on symptoms ends if and when the relevant individual tests negative for coronavirus.
• tweak the SSP rules as they apply to those employees who have been advised to shield due to being clinically extremely vulnerable – entitlement to SSP will now cease either at the end of the period specified in the individual’s shielding notification or when that notification is overridden by a further notice to end shielding. Shielding will be paused in England after 31 July 2020, but the regulations also state that nothing prevents an individual’s entitlement to SSP restarting in the event a further shielding notification is sent, thus allowing for the possibility of shielding having to be revived for some clinically extremely vulnerable people if there is a second wave of coronavirus later in the year.

Acas has published a process map for employers who are having to consider making redundancies due to coronavirus. The interactive tool has been designed to help employers better understand redundancy processes, required steps and good practice when engaging with employees. It also provides details of options and alternatives to making redundancies and prompts employers to consider further support they can provide to their staff.

The tool simply provides an overview of the steps and processes involved, but it does link to more detailed Acas guidance and information on managing staff redundancies.

As part of ensuring a redundancy process is both fair and complies with statutory requirements, employers must:

• be confident there is a genuine redundancy situation, i.e. there is an actual or intended closure of the business, there is an actual or intended closure of the business at a particular workplace, or the requirements of the business for employees to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish
• undertake meaningful individual consultation in all cases, which will involve holding a series of individual meetings with affected employees, the purposes of which are for the employer to  explain their proposals and the reasons for them and to give staff a reasonable opportunity to put forward their own suggestions, ask questions and generally have their say before any final decisions on redundancy are taken
• undertake statutory collective consultation with appropriate representatives, i.e. trade union or elected employee representatives, where the proposal is to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less – and the Secretary of State will also need to be notified, according to prescribed timescales, on form HR1
• fairly select those employees who are to be made redundant – this will include identifying the relevant selection pool and the proposed objective and non-discriminatory selection criteria and then applying a fair scoring system to those criteria in order to select who is to provisionally be made redundant
• give due consideration to suitable alternative employment and other alternatives to compulsory redundancy – employers need to carefully focus on the various ways in which redundancy could be avoided
• not issue any redundancy notices until the consultation process (both individual and, where applicable, collective) is complete
• preferably give a right of appeal against any redundancy decision.

Employers must also ensure that statutory minimum notice and statutory redundancy payment obligations are met on redundancy, together with any enhanced contractual obligations.

From 1 August 2020 onwards, it is intended that the shielding programme will be “paused” in England so clinically extremely vulnerable people will no longer be advised to shield. From an employment perspective, this means that, if they cannot work from home, shielding employees can then return to their workplaces, provided they are “COVID-19 Secure”, i.e. they comply with the latest government guidance. Employers should ensure that robust measures are put in place to enable shielding employees to safely return to work, and that they comply with their statutory duty to make reasonable adjustments for disabled employees. It is advisable for employers to speak to shielding employees on an individual basis in advance of their return to discuss the health and safety measures that have been put in place and to agree a plan for their return to work. 

The easing of shielding measures is also likely to mean that shielding employees will no longer be entitled to receive statutory sick pay (SSP) from 1 August 2020 if continuing to shield. If so, amending regulations will need to be published to provide that shielding no longer constitutes deemed incapacity for SSP purposes. The exceptions, where the shielding employee would still be entitled to SSP, are where they are self-isolating because they have coronavirus symptoms, are waiting for a coronavirus test result or have tested positive for coronavirus, they live with someone who has symptoms, is waiting for a test result or has tested positive, someone in their support bubble has symptoms, is waiting for a test result or has tested positive or they have been told to self-isolate by NHS Test and Trace because they have been in contact with a person who has coronavirus. However, it is also possible that a shielding employee’s GP may certify them as unfit to return to work by issuing them with a fit note, and, in that case, they would then still be entitled to SSP under the normal SSP incapacity rules. 

If they have been on furlough under the Coronavirus Job Retention Scheme, shielding employees can remain on furlough from 1 August 2020.

The NHS will maintain the Shielded Patient List and, should levels of COVID-19 increase in communities, those at highest risk may be advised to take more restrictive measures in future to keep themselves safe.

Shielding has been extended in Scotland until 31 July 2020 and in Wales until 16 August 2020. In both cases, the Scottish and Welsh governments are keeping next steps under review.
 

The government has produced guidance to help employers, employees and the self-employed in England understand how to work safely on their return to work during the coronavirus pandemic. The so-called “COVID-19 Secure” guidance currently comprises eight separate guides covering the following workplace settings: 

• construction and other outdoor work
• factories, plants and warehouses
• labs and research facilities
• offices and contact centres
• other people’s homes
• restaurants offering takeaway or delivery
• shops and branches
• vehicles. 

Businesses that operate more than one type of workplace may need to use more than one guide. Each guide includes a downloadable notice that employers can display in their workplace to show that they have followed the guidance. Guides for workplaces that are not currently permitted to be open will be published in due course, ahead of their opening. 

There is also general guidance which applies across all workplaces that are currently allowed to open and this sets out five key points for employers to implement as soon as practicable:

1. Employees must still work from home if they can, and employers should take all reasonable steps to help them work from home
2. Employers should carry out a COVID-19 risk assessment, in consultation with workers or trade unions, to establish what guidelines need to be put in place and then they should share the results with their workforce (and if they have more than 50 staff, they should publish the results on their website)
3. Workspaces should be re-designed to maintain two metres social distancing, wherever possible
4. Where employees cannot be two metres apart, the transmission risk should be managed
5. Cleaning processes should be reinforced.

Finally, to help employers with carrying out risk assessments, the Health and Safety Executive (HSE) has published a toolkit. The toolkit begins by setting out the steps that need to be taken by employers to manage risk and then it goes on to provide a risk assessment template document together with a number of example risk assessments covering various industries, including an office-based business, warehouse, local shop and food preparation and service. Finally, there are links to more detailed guidance for employers on managing risk.

The Information Commissioner’s Office (ICO) has published guidance for employers on workplace testing during the coronavirus pandemic. It covers the extent to which employers can carry out tests on staff on their return to work to see if they have either coronavirus or symptoms of it.

The guidance makes clear that any testing needs to comply with the GDPR and the Data Protection Act 2018, and that any personal data relating to health is special category data. The topics covered in the guidance include:

• the lawful basis that can be used for testing employees
• demonstrating compliance with data protection laws, including the data protection principles
• data retention
• data sharing
• the exercise of data subject rights by staff
• the data protection considerations where staff have arranged their own tests and disclose the results to their employer
• the use of on-site temperature checks or thermal cameras for testing or monitoring staff. 

The Maternity Allowance, Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay (Normal Weekly Earnings etc.) (Coronavirus) (Amendment) Regulations 2020 came into force on 25 April 2020. They have amended five sets of family-related payments regulations to ensure that an employee’s eligibility for statutory maternity pay (SMP), statutory paternity pay (SPP), statutory adoption pay (SAP), statutory shared parental pay (ShPP) and statutory parental bereavement pay (SPBP), and an employee’s entitlement to the higher earnings-related rate of SMP or SAP, is the same as it would have been had they not been furloughed under the Coronavirus Job Retention Scheme. This is done by providing that the employee’s normal weekly earnings are to be calculated as if, during the relevant period when they were furloughed, they were paid the amount they would have derived from their employment had they not been a furloughed employee. 

These amendments apply where the first day of the period in respect of which the statutory payment is to be made is on or after 25 April 2020.

The government has published sector-specific guidance for employers in England on social distancing in the workplace during coronavirus (COVID-19).  The guidance covers how social distancing and other measures might be implemented by employers to help protect their workforces and customers from coronavirus while still continuing to trade.

The sectors considered by the guidance are shops running a pick-up or delivery service, tradespeople who work in people's homes, construction, manufacturing and processing, retail, logistics businesses, outdoor businesses, visiting farms for animal health and welfare, fishing or other short-term offshore work, cargo-shipping or other long-term offshore work, transport businesses and waste management businesses.

Advice for business in the other nations of the UK is provided by the Scottish and Welsh governments and by the Northern Ireland Executive.

The government has issued a bulletin providing advice for employers regarding compliance with the National Minimum Wage (NMW) framework, particularly with regard to the effect under that framework of pay advances and loans to workers, in the context of the coronavirus pandemic.

The bulletin sets out how the practice of an employer making such pay advances or loans sits with continuing compliance with their obligations to pay the NMW. Nothing in the advice is new, but its guidance is useful clarification for employers at the present time.

Employees who are unable to work for more than seven days because of coronavirus (COVID-19) can now obtain an “isolation note” through a new online service. The new isolation note, which can be used by employees as evidence of their coronavirus-related absence from work (either because they have symptoms or they live with someone who has symptoms) and so cannot work, is a temporary alternative to the fit note for use during the coronavirus pandemic. Employees can continue to self-certify for their first calendar week of absence.

The new online service is available through the NHS website, NHS 111 Online or via the NHS app. After answering a few questions, an isolation note will be emailed to the user. If they don’t have an email address, they can have the note sent to a trusted family member or friend, or directly to their employer. The service can also be used to generate an isolation note on behalf of someone else.

Acas has published updated guidance for employers and employees on the coronavirus (COVID-19). The guidance now covers:

• social distancing and vulnerable people
• self-isolation and sick pay
• what to do if the employer needs to close the workplace
• what to do if an employee needs time off work to look after someone
• what to do if someone has coronavirus symptoms at work
• good practice steps for employers
• links to further advice on coronavirus.

The guidance is being updated on a daily basis. 
 

Firstly, the Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020 have amended the Statutory Sick Pay (General) Regulations 1982, to include, in the definition of persons deemed incapable of work for the purposes of SSP entitlement, those who are isolating themselves from other people in such a manner as to prevent infection or contamination with coronavirus, in accordance with guidance published by Public Health England, Public Health Wales or NHS National Services Scotland, and who by reason of that isolation are unable to work. The regulations came into force on 13 March 2020, are to be kept under review by the government and, in any event, will cease to have effect eight months after they came into force. Note that the amendment here would not include those who are working from home during self-isolation, as those individuals are still able to work and are working. Neither would it include those who choose to self-isolate because they are concerned about catching the virus, if their self-isolation isn’t in accordance with the latest published guidance.

Secondly, the Chancellor announced in the Spring Budget on 11 March 2020 that, as a special temporary measure, employers with fewer than 250 employees will be allowed to reclaim from the government the cost of providing up to two weeks of coronavirus-related SSP payments per employee. Further details on how employers can access the rebate will be provided in due course.

Thirdly, coronavirus has now been listed as a “notifiable disease” in England and Wales (following on from Scotland which had already done so), helping businesses to recover compensation through their insurance policies due to any impact from the virus, subject to their specific policy wording.

Finally, the temporary emergency legislation to provide that SSP will be available from the first day of sickness absence is still awaited. It is anticipated though that it will only extend to coronavirus-related absences and will not extend to sickness absences for other ill-health reasons.

The current rate of SSP is £94.25 per week and it will increase to £95.85 per week from 6 April 2020. However, those employees who earn less than £118 per week (rising to £120 per week from 6 April 2020) do not qualify for it.

The government has now published its response to the review into the implementation of changes to the off-payroll working rules (IR35) for the private sector. Following the conclusion of this review, the government has confirmed that the changes will still take effect as planned from 6 April 2020, but there will be a package of measures designed to support the roll-out of the changes. Under the measures:

• businesses will not have to pay a penalty for inaccuracies and errors relating to the off-payroll rules in the first year, except in cases of deliberate non-compliance
• HMRC is confirming its previous commitment that information resulting from the changes will not be used to open new investigations into personal service companies (PSCs) for past tax years, unless there is reason to suspect fraud or criminal behaviour
• the draft legislation will place a new legal obligation on client organisations to respond to a request for information about their size from the worker or agency, i.e. whether or not they are a small business and so exempt from the changes, to make it clearer who is responsible for determining the worker’s tax status
• the draft legislation will be amended to exclude wholly overseas organisations with no UK presence from having to consider the changes (and the current rules will therefore continue to apply where the client is wholly overseas)
• HMRC will increase its communication efforts to support contractors in their understanding of the rules. 

In addition, HMRC has published various communication resources on the reforms. These are designed to be widely circulated to help publicise the changes.

A new Finance Bill 2020 is expected to be published on 19 March 2020 to bring the changes into force.

Public Health England has published new guidance specifically for employers and businesses on the novel coronavirus, COVID-19. The government says that the new guidance will assist employers and businesses in providing advice to staff on:

• the novel coronavirus, COVID-19
• how to help prevent spread of all respiratory infections, including COVID-19
• what to do if someone with suspected or confirmed COVID-19 has been in a workplace setting
• what advice to give to individuals who have travelled to specific areas, as outlined by the Chief Medical Officer 
• advice for the certification of absence from work resulting from COVID-19.

In addition, the government is publishing online daily updates for the general public on COVID-19, containing the latest information and advice, including on the current situation in the UK.