General Employment Law
The following guidance and advice is from our specialist Employment Solicitor, Linda Wylie:
• Employees still continue to have the same employment rights they did before the COVID-19 pandemic began.
• In practice, that means an employer must first consult with employees over any proposed changes to their terms and condition, and must get their agreement before putting any changes into effect.
• Employers should record any changes and an employee’s agreement to them, in writing. This is essential where an employee is agreeing to a pay reduction.
• A fair procedure must be followed for dismissals, including redundancies, for employees with two or more years’ continuous service.
• Employers must continue to ensure the health and safety of their employees and those affected by their activities so far as reasonably practicable. In the current climate, this means having due regard to government guidance on measures to prevent the spread of the virus, such as through shielding and social distancing.
Coronavirus Job Retention Scheme (CJRS)
• On 20 March 2020, the government announced the CJRS, which will allow employers to claim a grant to cover 80% of retained employees’ salary up to a maximum of £2,500 per month, plus employer’s National Insurance Contributions (NICs) and minimum automatic enrolment employer pension contributions on the reduced salary.
• The Scheme is backdated to cover salary paid from 1 March. The Scheme will last at least until the end of June.
• The HMRC portal to be used to make a claim went live on Monday 20 April 2020.
• HMRC guidance for employers on the CJRS and how to make a claim can be found HERE and is usually updated once or twice at week
* The Treasury has also published its direction to HMRC on managing the Scheme. The document has useful guidance on how to calculate claims at paragraphs 7 and 8.
Who can be furloughed?
• Employees, apprentices, salaried directors and LLP members, agency workers and non-employee workers (limb (b)) who were on their actual or deemed employer’s PAYE payroll on or before 19 March 2020 and which were notified to HMRC on an RTI submission on or before that date are eligible.
• Apprentices who continue their training must be paid the appropriate National Minimum Wage for the time they do so.
• Agency workers can be furloughed by the agency or, if there is an umbrella company, by the company.
• Self-employed persons who are not paid via PAYE cannot be furloughed and must instead apply under the Self-employed Income Support Scheme.
Furloughing employees and other eligible persons
• Employers must consult with and get their employees’ prior agreement to be furloughed and to a reduction in pay to 80% of their usual salary.
• A fair, non-discriminatory process for selection for furlough must be used.
• Employers can continue to pay employees their usual salary by topping up wages that cannot be claimed under the Scheme.
• An employee must be furloughed for a minimum of 3 weeks and cannot work for the employer during this time.
• Employees can be brought back from furlough (subject to the 3-week minimum) to work and then be furloughed again. Employers might want to consider doing this to avoid resentment amongst staff that have not been furloughed.
• Furloughed employees can go on annual leave during furlough and if they do, they are entitled to be paid holiday pay at their usual full rate.
• However, HMRC have not yet clarified whether annual leave will interrupt a furlough period (possibly interfering with the 3-week minimum) or whether an employer can claim for the employee’s wages while on annual leave. It is recommended that employers wait for HMRC clarification before allowing or requesting furloughed employees to take annual leave.
• In order to prevent employees taking all of their annual leave in the second half of 2020, the government has amended the Working Time Regulations 1998 to allow employees to carry over their 4 weeks of leave under the Regulations to the following two leave years.
• The CJRS was designed to prevent employers having to make redundancies during the pandemic period. However, some redundancies may be unavoidable.
• An employer can make furloughed employees redundant but cannot claim for any statutory or contractual redundancy pay under the CJRS. It is likely that the calculation of statutory redundancy pay will be based on the employee’s usual pay pre-furlough.
• The employer will still need to identify a pool of employees for selection for redundancy, inform and consult with staff individually, create and apply a objective selection criteria and consider alternatives to redundancy. Formal consultation requirements will apply if 20 or more employees will be made redundant within 90 days.
• Meeting the information and consultation requirements may be difficult, but not impossible. Furloughed employees in the selection pool taking part are unlikely to be regarded as “working” in contravention of the CJRS.
For further advice please get in touch with our Employment Specialist Linda Wylie who will be happy to help you with any current concerns you have.
*No delay to controversial IR35 changes which will affect both employers and employees*
Our Employment Law Specialist Linda Wylie can guide and support you through this uncertain time and ensure you are fully prepared.
Employment law can be a minefield and problems that arise can often be very costly and time consuming. Our Employment Law Specialist Linda Wylie will guide and support you through any difficult issues that may arise from start to finish.
Linda also focusses on preventative advice, ensuring correct employment procedures and practices are followed but if problems do arise, she will work with you to find practical and commercial solutions.
We believe in communicating clearly and want you to feel confident you are receiving the best legal advice that is right for you and your business.
Linda works with clients on a range of employment issues including:
- Employment Tribunal claims
- Dismissals & Grievances
- Constructive Dismissal
- Business protection & Contract Disputes
- Redundancy & Business Reorganisation
- Implementing change
- Sickness Absence Management
- Directors or Executives Disputes
- Restrictive covenants
- Breach of Restrictive Covenants
- Settlement Agreements
She can also offer bespoke training packages, seminars and business briefings to our clients and provide updater services.
You can find out more about our pricing for representation at Employment Tribunals for unfair or wrongful dismissal claims here.