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Employer Questions & Answers

  1. How long will the Job Retention Scheme be available for?
    At present, the government have indicated it will last for 3 months from March 1st to the end of May 2020.  So if you furlough any employees this will apply to your company.
  2. Can employees be brought into the Furlough scheme who are already on sick leave or receiving SSP/CSP due to self-isolation?
    When employees are fit to come back to work, if there is no work for them, then they should be eligible to enter the scheme.
  3. What should an employer do if an employee refuses to go on furlough leave and the firm has complied with all Government COVID-19 guidelines?
    Call PJH Law for advice as the answer depends on the terms of their contract of employment, but it’s unlikely as 80% is better than a guarantee payment of £30.00 per day for the first 5 days.
  4. If an employee requests for their role to be made redundant, how does an employer manage this?
    Call PJH Law for advice, but the idea of the retention scheme is to retain employment. An employer would be well within their rights to say no subject to the lay off provisions.
  5. If an employee has a pre-booked holiday during their furlough leave, does an employer have to let them rebook for when they can return to work?
    Difficult one as no clear guidance from HMRC on whether an employee can be on furlough leave and annual leave. ACAS suggests that they cannot be on both types o leave, pre-existing caselaw suggests they can be. We’d say roll the dice and say pre-booked holiday must be taken as booked. The worst that can happen is you have to allow it to be taken. The best that can happen is the holiday is used up during Furlough. Holiday pay taken during Furlough should probably be topped up to normal pay.
  6. How much notice should an employer give an employee to return to work?
    There is no legal guidance on this. Therefore what is reasonable could be as little as a day and depends on when how much lead time the government give on lifting restrictions and any reasons the employee may have for needing longer, such as making childcare arrangements.

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  1. If you need to select employees to go on furlough leave, do you need to use selection criteria to avoid any discrimination claims? If so, what would you suggest?
    If you have a collective group and you do not need to Furlough all of them, then you would need to go through some form of objective assessment based on business need. Where possible, ask for volunteers first. It is fine to reserve a right to reject volunteers in the same way as you would when asking for volunteers for redundancy.
  2. If more than 20 employees are being furloughed is collective consultation required?
    Yes arguably so but the shape and form of that are discussed here.
  3. What do employers have to pay an employee if they have to self-isolate for a second time?
    An employer would have to pay a minimum of SSP.
  4. What are the working time regulation changes that impact carry-over of untaken statutory annual leave?
    Holiday continues to accrue during Furlough. The new Government guidelines have allowed the employee to carry over at least the first 4 weeks of annual leave for up to 2 years.
  5. What is the new Emergency Volunteering Leave?
    This is where an employee can request leave to go and work for an appropriate authority, such as the NHS or Social Care. They have to give 3 days’ notice, and they do need to produce a formal document from whatever authority they are going as proof. The leave needs to be in a block of a minimum of 2 weeks up to 4 weeks maximum. At this time, the employer is obliged to accept the request. All terms of employment are protected except pay. Employers do not have to pay employees taking emergency leave and employees can claim compensation for loss of earnings from the authority they are volunteering for.
  6. How does furlough leave impact death in service policies?
    Check with your insurer as to how basic pay is calculated if an employee is on furlough and dies.
  7. Do I have to declare the furlough pay I receive from HMRC in my accounts?
    Yes. You have to declare the furlough pay HMRC pay to you as income in your accounts, and you record the sums you pay to employees as business expenses in the normal way.
  8. Where do I go for more information  HMRC https://www.gov.uk/coronavirus
  9. Do the 3 weeks furlough have to be consecutive?
    Yes they do.
  10. How do I furlough a Company Director?
    There is a bit more to furloughing a director than there is to furloughing a “normal” employee. The latest guidance (as at 6/4/2020) says “Where one or more individual directors’ furlough is so decided by the board, this should be formally adopted as a decision of the company, noted in the company records and communicated in writing to the director(s) concerned.” This suggests:

    1. A board meeting must be convened in the normal way.
    2. The board must vote on, and pass, a resolution setting out which directors are to be furloughed.
    3. The decision must be recorded in the company records as per any other board resolution.
    4. A letter must be sent to the director in a similar way to any other employee.
  11. Can (PAYE) Directors be furloughed?
    Yes, provided they are not doing any work with the exception of complying with their statutory duties under the Companies Act 2006 and any other applicable legislation. If there are 2 or more directors and you need someone to carry on answering inquiries and dealing with customers, you can furlough all but 1 director and take it in turns to do the work provided any period of furlough lasts for 3 weeks or more. A 1 week off 1 week on rota would not qualify. A 3 week off and 1 day on rotating pattern would qualify if you need to let some jobs build up, do them all in a day and then go back on furlough. Depending on the director’s salary and the cost of a virtual assistance, it may be cost effective to hire a virtual assistant to field calls in order that you can furlough the directors.

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More Key Areas of Consideration

Statutory Sick Pay (“SSP”)

Employees who are self-isolating due to COVID-19 are entitled to SSP. Traditionally, SSP has been reserved for people who are unable to work due to incapacity.

However, updated government guidance states that an employee is treated as being unable to work due to incapacity if they are complying with advice from Public Health England, NHS National Services Scotland or Public Health Wales. Therefore employees self-isolating due to mild symptoms are entitled to SSP, even though they would ordinarily be able to attend work.

SSP is currently £94.25 a week. Usually, an employee is unable to receive SSP until they have been ill for four or more days in a row. However, as of 13 March 2020, an employee affected by COVID-19 has the right to receive SSP immediately.

Working from home

Employees who are able to work from home should continue to receive full pay.  To minimise exposure to the Coronavirus and help with social distancing, it is unlikely to be considered unreasonable to request that an employee work from home where possible.  Many employees may already have mobility clauses in their contracts.

Government measures

The Government has announced a £multi billion stimulus package to assist businesses with COVID 19. The Government also intends to introduce additional specific employment measures. It is unclear what these will be and  the employment team at PJH Law is keeping up to date with these measures and will provide updates as they are announced.

It is important that you ensure your employees’ health and well-being is paramount. Employers have a statutory duty of care for people’s health and safety at work and you should do everything in your power to support people remaining at home or taking necessary precautions.

HR basics to follow if your business is still open

  • Make sure everyone’s contact numbers and emergency contact details are up to date.
  • Make sure all staff are aware of the latest government advice, your response as an employer and what you are doing to protect people’s health and reduce the risk of infection spreading.
  • Continue to communicate as the situation changes.
  • Make sure managers are clear on any relevant policies and processes, for example sickness reporting and sick pay, and your homeworking policy.

Protect your workforce

  • Keep your workforce well-informed with ongoing developments and official advice from the Government and National Health Service and promote resources that are available.
  • Advise employees to take precautions. This includes working from home where possible and avoiding non-essential social contact (in line with the latest government advice).  CIPD’s has a series on remote working for tips on getting the most from remote working.
  • If your business remains open – under the latest government measures, it’s important yo help reduce the spread of infection by providing soap and hand sanitiser gels with alcohol, especially in communal areas like kitchens and coffee areas.
  • Increase the frequency and intensity of office cleaning; frequently wipe down communal spaces such as kitchens, handrails on stairs, lift buttons, door handles, etc.
  • Employers should use discretion around the need for medical evidence for a period of absence where an employee is advised to self-isolate.
  • Employees can currently self-certify for the first seven days. Employees can now apply for an isolation note through a new online service. There is more information is available on the government website.

Above all keep well and take care:

PJH Law’s employment law team try to do things differently. We operate a relaxed, informal, friendly and personal service. We are specialists in getting the best outcomes we can for our clients. These are unique times and we have over 35 years of combined experience that can help you with any employment law issue covering COVID-19.

We have a large firm experience, but being a niche firm offer a more friendly personal service.

For expert advice on employnment law issues arising out of COVID 19, or any kind of employment law dispute and funding options; including employment protection insurance, please complete our enquiry form, request a callback or call our employment lawyers and expert legal team on 01780 757 589.

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