They continue to undertake a wide variety of work including advising on acquisitions and disposals, reviewing and updating the full suite of franchise agreements for roll-out across the network.

The Sherrards Employment team also support their head office with their employment law and HR needs, as well as advising on matters involving the franchisees.

This year the Franchising team have worked closely with Winkworth to update their internal new and renewal processes for franchisees in their network with the planned roll out of a new franchise agreements to their network of franchisees (circa 110) in their network. 

To find out more, please contact Leigh Head. 

TOCA Social is the first of its kind interactive football and dining experience which combines immersive gaming and world-class food and drink.

The Sherrards Employment team was lucky enough to experience the game for themselves after a training session with Team TOCA just before the venue opened to the public.

Mark Fellows said: “TOCA Social is an amazing venue and it really was such a pleasure to be able to support the team as they start on this exciting venture – we’ve already booked to go back with several clients in Summer 2022!”

Since 16 August 2021, people who are double-jabbed and are without symptoms or a positive test do not need to self-isolate if they come into contact with someone who has tested positive for coronavirus. This was a major step to help ease the serious supply chain shortages that followed the “pingdemic” during the summer of 2021 which saw up to 700,000 per week self-isolating in England and Wales as contacts of positive cases.

Whilst many people are unable to get the vaccination for medical issues, all adults in the UK have now been offered the vaccine. This means that the people who are unvaccinated are either due to medical reasons, or have chosen not to be.

Ikea has argued that employees who refuse to get the vaccine are causing disproportionate financial losses to businesses. Whilst Ikea’s 10,000 plus workers receive an average of £400 a week salary, the furniture retailer said unvaccinated workers will only receive statutory sick pay of £96.35 a week where they are absent for a Covid-related reason (but full-pay if they test positive, as with vaccinated staff).

Given that Ikea is such a high-profile company, it is almost inevitable that other employers will follow suit and many will be monitoring the fall-out of this new policy. In fact, Next is the latest employer to announce it intends to adopt the same approach.

Some have argued that this policy is potentially discriminatory against employees refusing to be vaccinated on the grounds of religion or belief under the Equality Act 2010. Whilst this argument is generally considered unlikely to be successful, to avoid claims employers will need to consider each circumstance on “a case-by-case basis”, which Ikea has also confirmed it will do. This is necessary as applying similar policies without exemptions could be discriminatory against employees are unable to be vaccinated (e.g. those with disability-related medical reasons or pregnant employees).

As well as considering the implications on staff who are unable to be vaccinated, employers considering varying their sick pay entitlements also need to be careful to ensure that they won’t fall foul of any contractual responsibilities, where sick pay forms part of an employee’s contract of employment. It will be important to check the terms before any such measures are introduced.

Perhaps most significantly, employers will need to consider the public response to any policy change in such a highly divisive area before taking any steps.

Finally, if an employer is considering introducing a similar measure in respect of sick pay, a key issue will be the communication to the staff, setting out the reasons for the change and the exceptions that might apply. It may well be that the approach may give rise to some complaints from those employees who are directly affected.

Any employers considering introducing policies which target unvaccinated staff should act with caution and take legal advice in advance to ensure that savings in sickness payments now don’t turn into much larger costs defending claims from unvaccinated staff down the line.  

Please contact Emma or the team for more information. 

This acquisition was led by Charles Hodder but also involved our corporate & commercial, employment and dispute resolution teams. The IOD Skip Hire site became Powerday’s sixth facility in London and means they will inherit the affiliated businesses of IOD.

The transaction was complicated, but we successfully completed the deal due to the team’s experience in the market and ability to work brilliantly across departments, bringing together specific expertise to ensuring seamless transaction.

As the rapid rollout of the UK’s COVID-19 vaccine provides hope of returning to normality, preparations are being made for staff to return to the workplace. Unsurprisingly the vaccine has divided opinion, with a survey by HR Locker suggesting that one quarter of UK employers are intending to introduce a ‘No Jab, No Job’ policy of making vaccination of staff a compulsory requirement.

Is that permissible I hear you ask?

Can I compel staff to have the Covid-19 Vaccine?

In short, this is fraught with a myriad of issues.

There is currently no legislation permitting an employer to require staff to undergo mandatory medical treatment, including vaccinations, and to do so could amount to a breach of the employee’s human right to respect for their private life.

In addition, any disciplinary action imposed against an employee for refusing to be vaccinated could give rise to discrimination claims (see below).

There will of course be some sectors where you can see a greater justification for requiring staff to be vaccinated, such as healthcare or care home settings, where non-vaccinated employees could present a threat to patients, residents, other staff and themselves. As Boris Johnson recently pointed out, healthcare professionals are already required to be vaccinated against hepatitis B, so requiring a COVID-19 vaccination for those “entrusted with the care of a patient” is a possibility, although the Government is yet to give formal guidance on this issue.

However, in most sectors, a blanket policy of requiring staff to be vaccinated is unlikely to be justified.

If I want to protect the wellbeing of my staff, why is that potentially discriminatory?

It firstly depends upon whether the employee’s refusal to be vaccinated relates to a protected characteristic. This could arise on several grounds:

• religion/belief, as some religions do not condone vaccinations and there is evidence that pig gelatine can be found in certain vaccines;
• age, the vaccine is being rolled out on a sliding age scale such that some members of staff will not yet be eligible;
• maternity/sex, as current guidance is that pregnant women should not have the vaccine; and
• disability, as the vaccine may not be recommended for individuals with certain medical conditions or allergies.

Secondly, it depends upon whether those with the protection afforded above are treated less favourably or penalised for not being able to comply with a vaccination requirement. That might be refusing to allow the employee to return to the workplace, or even disciplining them for a refusal to have the vaccine.

In respect of some types of discrimination, you can seek to justify a discriminatory policy and whilst in some (limited) cases there might be a justification argument for insisting on the vaccine, this will be a very high threshold to surmount, particularly given the existence of less intrusive measures, such as regular testing, PPE and social distancing.

Can I make vaccination a requirement of hiring new employees?

Again, this is fraught with risk.

There are actually restrictions in place that are designed to prevent an employer from asking applicants about their medical history until such time as an offer of employment has been made, and there are also privacy and data protection obligations that will apply in respect of any such information.

When being considered for a vacant role, applicants have the same protection from discrimination as employed staff, so the above concerns will arise. If an applicant is not offered a role because of their refusal to have the vaccine, and their reason relates to one of the protected characteristics mentioned above, then this is likely to amount to discrimination.

What measures can an employer take?

Aside from some very limited exceptions, a compulsory vaccination requirement is not something we would endorse. Instead, we believe employers will need to careful consider a range of measures that can still be an effective way to ensure a safe working environment, whilst balancing individual circumstances and sensitivities:

• Encourage employees to have the vaccine

You can encourage your employees to have the vaccine. Under the Health and Safety at Work Act 1974, employers are obliged to take steps to reduce workplace risks. Consider the extent to which you encourage employees to be vaccinated, as it is a personal choice for everyone.

• Introduce other COVID safe measures

These could include asking staff to wear masks (subject to exemptions), implement social distancing and/or installing plastic screens as appropriate, setting up hand sanitiser stations, arranging for regular testing of staff, and deep cleaning the office.

• Flexible working

Allow employees to work from home where feasible or consider temporary changes to minimise the risk as far as possible. For instance, employees may request to change their working hours to avoid commuting on public transport during rush hour.

• Vaccine policy

Consider implementing a vaccine policy to handle potential workplace disputes which may arise regarding vaccination, for example, how to manage a vaccinated employee refusing to work alongside a non-vaccinated employee or requiring staff to not ask others about their vaccination status.

There is talk of a 3^rd vaccination to be rolled out later in the year, so this is a situation that is not going away anytime soon. Taking some of the measures above will hopefully enable you to minimise any disputes on this issue and enable the business to get back to the normality that we have all been craving.

To find out more, click here to speak to Mark Fellows or click here for a link to the Governments guidance.

When a snow day arrives, businesses suffer the effects of enforced staff absences. Employers are left counting the cost of the lost days, and forecasters predict more bad weather may be on its way.

Organisations such as the TUC and CIPD urge employers not to play “Scrooge” by trying to force employees to get into work or threatening to dock their pay if they fail to come in. However, the financial burden on an employer can be significant. So, what exactly are employers’ obligations in this situation?

Do I have to pay employees who are unable to get into work due to travel difficulties?

Take a look at your employment contracts and Employee Handbook. These might specify whether an employee is entitled to be paid on “snow days”. If they are silent, however, then the default position is that the obligation is on the employee to get into work, regardless of any travel difficulties caused by the weather or otherwise. If they do not attend, they are on unauthorised absence and they are arguably not entitled to be paid.

Be careful, however, if you are going to take this approach. Firstly, there is a potential that the employee can argue that failure to make payment in these circumstances is an unauthorised deduction from wages (assuming this is not covered in the employment contract). The defence to this would be that there was no entitlement to pay as no work was done, but it may be an argument you would prefer to avoid. Secondly, you should assess whether the financial benefit of withholding pay is outweighed by the impact on staff morale and productivity. This is particularly so if the weather and travel conditions are extreme and, even with the best of intentions, employees are unable to get in.

Above all, you should ensure that your approach is consistent. Ideally, tell staff in advance (in written format, e.g. memo or email) what your approach is going to be or, even better, have a “Bad Weather Policy”. Consider whether employees are able to work from home or whether alternative travel arrangements can be made. Otherwise, clearly explain to employees that either: (a) any time off will be unpaid; (b) time off will be paid but that they are expected to make up the time later; or (c) they can request the time off as paid annual leave or unpaid time off for dependant’s leave (see below). Prior notification is particularly important if you have made payments in the past in such circumstances.

As an aside, be careful if you are trying to insist on employees taking annual holiday retrospectively. Employees will need to agree to this unless the contract specifically allows for you to do this.

I have an employee who is able to get into the office but says s/he cannot come in because his/her child’s school has closed. What shall I do?

Employees with responsibility for a dependant are entitled to emergency time off in circumstances in which there is an unexpected disruption to childcare. Unless the school closure was announced significantly in advance, such that the employee had sufficient time to arrange alternative childcare, this would probably be an emergency situation and employees are entitled to take time off and not suffer any detriment for doing so.

Strictly speaking, the time off is unpaid (unless the contract of employment says otherwise) but employers may again want to consider the impact on morale that this approach would have. Again, it is important to be consistent in your approach. You should be especially careful where other employees who are unable to make it into the office due to travel are being paid.

One of my employees failed to come into work today, blaming the snow. I think he is using it as an excuse and could have easily come in. Where do I stand?

If you believe that an employee is falsely using the weather conditions as an excuse for absence or lateness, this can be treated as a disciplinary matter. If you consider the matter to be serious enough (e.g. if it is a persistent or blatant case), you should investigate in line with your disciplinary policy and take action as appropriate. However, in less serious or one-off cases, you may be better placed simply having a quiet word with the employee and letting them know that any further time off will have to be taken as holiday or will be unpaid. Bear in mind that it can often be difficult to prove or disprove an employee’s ability to come into work in bad conditions.

Am I obliged to allow employees to work from home?

Home working can be a good alternative for employees who are unable to get into the office. Use of remote computer access and such devices as iPhones can mean that employees are able to seamlessly work from home. You do not, however, have to allow employees to work from home if you do not think it is appropriate.

If you do permit home working, be clear on what you expect from employees. A home working policy would be a good idea, which should also cover the health and safety aspects of working from home.

Some employees who have made it into work are resentful of the fact that their colleagues are having a day off, while they have to work. Am I obliged to reward them?

In short, no. They are only doing what they are contractually obliged to do. If their colleagues are not being paid for having time off, or if they are using annual leave, this may address their concerns. However, if you have exercised your discretion to pay employees who do not come in, then those employees who have fought their way into work may feel that they have been treated unfairly.

It is a generous employer who grants those employees time off in lieu or some other financial reward. However, from a morale point of view, their efforts should not go unnoticed and a word of thanks, or an email to those employees who have made it in, can go a long way.

Employers should also consider any weather warnings and travel advice and allow employees to go early if necessary to avoid potentially dangerous travel conditions. Also, you wouldn’t want staff to be stuck in the office overnight!

The above provides a general guide to issues that might arise. However, each situation is unique and different considerations may apply in your case. We would therefore recommend that you consult a solicitor, or other suitably qualified person, about your specific circumstances.

Contact Mark Fellows for more information.

Partner Mark Fellows, Head of the Sherrards Employment department explores when you should consider to suspend an employee.

Whilst suspension is a precautionary measure, it is important to note that the question over whether to suspend in the first place is still a vital question to be asked before any steps are taken.

This has been highlighted by a recent tribunal matter where a school had suspended one of its teachers in order to investigate allegations that she had used unreasonable force against two of her pupils. Whilst some may think that the severity of these allegations would warrant the suspension of the teacher, the High Court held that it had not been necessary for the school to suspend the teacher and that they could have considered alternative measures. However, on appeal, the Court of Appeal confirmed that the school had had reasonable and proper cause to suspend the teacher.

Suspension is most commonly used for employee allegations involving gross misconduct. The suspension of an employee can therefore be a useful tool, providing an employer with invaluable breathing space to properly investigate an incident in the workplace.

If used inappropriately however, suspension can result in an employer being faced with a constructive dismissal claim from an aggrieved employee. It can damage employee relations or be seen as casting a shadow over an employee’s competence or character. Accordingly, it should be used with care.

ACAS provides the following guidance in relation to suspending an employee: https://archive.acas.org.uk/suspension

When can you suspend?

The above case confirmed that the appropriate test for an employer is not whether it is “necessary” to suspend an employee but whether an employer has “reasonable and proper cause” to suspend an employee. Requiring suspension to be “necessary” was deemed to be too high a bar and so this case has confirmed the threshold for suspension.

This means that an employer may legitimately be able to suspend an employee who is suspected of stealing. In these circumstances, the employer’s “reasonable and proper cause” may be to ensure that the employee in question is unable to carry out any further misconduct.

An employer may also be able to justify suspension on the basis that there is a risk of the employee interfering with investigations, tampering with evidence or attempting to influence witnesses.

Tips for suspending an employee

If you think the suspension of one of your employees is required, you can mitigate the risk of a constructive dismissal claim by:

1. Making it clear that suspension is not disciplinary action in itself or intended to be a punishment;
2. Reassuring the employee that suspension is not an indicator of guilt or that the outcome of any investigation is predetermined;
3. Confirming that you will be conducting a full and proper investigation and setting a clear timeline for future communications;
4. Notifying the employee of a point of contact (such as a member of HR) during their period of suspension; and
5. Confirming that suspension is a temporary measure.

You should also set clear boundaries and expectations for a suspended employee. For instance, you should make it clear that whilst on suspension they remain an employee of the company, bound by the terms and conditions of their employment and should remain contactable during working hours (apart from during periods of pre-arranged annual leave).

You should also make it clear that they are required to co-operate in your investigations and to attend investigation and/or disciplinary meetings. Depending on the allegations made, you may also wish to make it clear that they should not contact any of their colleagues and/or attend the workplace whilst your investigations are ongoing.

In order to avoid any doubt, we would recommend that a letter is sent to the employee in order to confirm the terms of their suspension.

Potential issues

Problems can arise for an employer if:

1. The suspension is communicated to others in an improper way – employers should be careful how they explain the employee’s absence to others and ensure that they do not imply any wrongdoing or fault on behalf of the employee. Suspension is still viewed by some as carrying a negative stigma and so you may decide to explain an employee’s absence in an alternative way;
2. Suspension is too high a sanction – an employer needs to consider whether the potential disciplinary matter is serious enough to warrant suspension in the first place. Minor misconduct will often not warrant suspension. On the other hand, it may actually damage an employer’s case if they do not suspend in a clearly very serious case;
3. Suspension continues for too long – employers should try to complete their investigation as quickly as possible and should review suspension if and when new evidence comes to light. If, for example, you discover clear CCTV footage which refutes the allegations made, you may consider ending a period of suspension prematurely (whilst continuing with your investigations);
4. Suspension is unpaid – employers should not suspend an employee without pay unless they have the express right to do so in the employee’s contract of employment. Even with the required provision, this is likely to be a high-risk strategy and in practice, there are limited circumstances where you would not pay a suspended employee.

In summary, where the question of whether to suspend arises at the outset of an internal procedure, it is worth remembering that this decision will be material to the fairness of the entire process and that it is important to be able to show reasonable and proper cause in order to suspend an employee.

To find out more, please contact Mark Fellows. 

On Friday 20^th March, the Government announced new measures to support businesses finding themselves in financial difficulty as a result of the impact of the Covid-19 pandemic. Below, Mark Fellows Partner in the Employment team, summarises the announcement and what it means for you and your business.

Please bear in mind that the Government announcement is lacking in some important detail, we endeavour to provide this to you in the coming days.

There are, therefore, a number of questions that remain unanswered.

The Government’s website for support for employers states:

• Under the Coronavirus Job Retention Scheme, all UK employers will be able to access support to continue paying part of their employee’s salary for those employees that would otherwise have been laid off during this crisis.
• To access the scheme, employers need to designate affected employees as ‘furloughed workers’ and notify their employees of this change. The guidance states that “changing the status of employees remains subject to existing employment law and, depending on the employment contract, may be subject to negotiation”.
• Employers must submit information to HMRC about the employees that have been furloughed and their earnings through a new online portal.
• HMRC will reimburse 80% of furloughed workers’ wage costs, up to a cap of £2,500 per month.

The Government’s website providing support to employees states:

• If an employer intends to access the Coronavirus Job Retention Scheme, they will discuss with you becoming classified as a furloughed worker. This would mean that you are kept on your employer’s payroll, rather than being laid off.
• To qualify for this scheme, you should not undertake work for them while you are furloughed. This will allow your employer to claim a grant of up to 80% of your wage for all employment costs, up to a cap of £2,500 per month.
• You will remain employed while furloughed. Your employer could choose to fund the differences between this payment and your salary, but does not have to.
• The Government intend for the Job Retention Scheme to last at least 3 months from 1 March 2020 but will extend if necessary.

Mark highlights key areas which are worthy of further discussion:

In order to benefit from this scheme, employers would have to notify the employees of the change to them being furloughed workers. Since there will be no contractual right to do this – as it seems to be a completely new concept – employers would, in effect, need the employees’ agreement to the change. On the basis that the alternative is redundancy, then I would assume that most employees would accept the change.“One particular challenge is that the guidance is using terminology unfamiliar in an employment law context – despite saying that “changing the status of employees remains subject to existing employment law”. The guidance also repeatedly refers to employees who would have “otherwise been laid off”. Laying off, in an employment law context, has a very specific legal meaning – which is to provide employees with no work (and no pay) for a period while retaining them as employees. This seems to be exactly what they are now referring to as “furloughed workers”. The Government presumably mean “laid off” in the vernacular sense, which is to be made redundant (i.e. have their employment brought to an end).

So, once the employer has agreed with an affected employee that they will be reclassified as a “furloughed employee”, then the employer can reclaim 80% of the employees’ wage costs up to £,2,500 a month. However, what we are not clear about is:

• What classifies as “wage costs”. The employee guidance talks about “all employment costs”. This might include the cost of benefits, pension, employer’s NI etc.
• Whether the cap of £2,500 refers to the 80% value or the 100% value – likely the 80% value.
• What happens when employers have already reduced employees’ salaries – can they claim the full 80% or only 80% of the reduced salary?
• What happens to employees who have already been made redundant? Can they be reinstated in order to benefit from this scheme?
• Whether there are any minimum service requirements. What happens if an employer has a new employee joining – can they immediately be furloughed?
• How long the wait will be for reimbursement – if there is a significant wait, it doesn’t help with the immediate cash flow issue.
• Whether furloughed employees continue to accrue holiday, what happens when they are on sick leave, and are they still entitled to pension contributions?

Employers need to think very carefully about whether to use this and for whom. One particular issue that jumps to mind is how non-furloughed employees will feel about still working – and probably picking up more of the workload to cover for their furloughed colleagues – and potentially receiving the same pay (80%) as those who are not working.

Employers will also need to consider what their approach will be to topping up the salary costs (or not) – particularly for those employees earning over £30K, for whom the cap will not fully cover their 80% salary.

Some of these questions may be answered in the next few days, but some of them are likely to remain unclear. I aim to update you as soon as the Government provide further guidance.”

As you will appreciate, whilst we have outlined options and some of the legal implications, this note does not constitute legal advice as each situation will be different and commercial considerations will no doubt dictate what you as a business ultimately decide to do.

Sherrards is here to support you should you need specific assistance.

To find out more, please contact Mark Fellows.

This is a truly exceptional and unprecedented time for all organisations, and you will already be thinking about the measures that you may need to implement in order to safeguard the future of your business. Taking steps now, even as a contingency, could be crucial in getting through this challenging period.

We have outlined below some of the options that exist in a situation of this nature:

GOVERNMENT SUPPORT – announcements are being made daily about various financial measures introduced by the Government, whether it be an opportunity to recover Statutory Sick Pay or grants and loans to help businesses during this critical period (Government link here). Utilise these to the fullest extent and communicate any impact on your business, with your staff.

LAY OFF – not to be confused with redundancies but lay off refers to a situation where an employer provides employees with no work (and no pay) for a period while retaining them as employees. They are effectively on unpaid leave for a temporary period. This is a measure often used when the downturn in work is expected to be short-term. Ideally the right to lay off is set out in the contract of employment and if it isn’t, generally speaking you would need the consent of the employees concerned. There are significant legal implications if you impose this measure without consent. Note also that after 4 weeks, an employee has the right to seek a redundancy payment, with the effect of bringing their employment to an end.

SHORT TIME WORKING – is where you ask an employee to reduce their contractual hours, again for a temporary period of time, with a corresponding reduction in pay. For example, asking somebody to work 3 days a week, instead of 5, and reducing their salary accordingly. The same principle as above applies here in respect of having the contractual right to do so and needing consent in the absence of that.

TEMPORARY SALARY REDUCTIONS – it is open for you to ask employees to consider a temporary reduction of pay to help the business navigate through the next few months. This would clearly need the consent of the employees concerned and would be open to discretion as to the amount of the reduction, and for how long. For example, the top earners could take a pay reduction of 20% and the lower earners, 10%. You also have the option to offer to make up the shortfall at a later point.

COLLECTIVE REDUNDANCIES – if you are proposing to make 20 or more employees in the same establishment redundant, within a 90-day period, it will trigger collective consultation obligations which has additional legal implications. In particular, there is a minimum period of consultation that ordinarily must be observed and a financial penalty if this is not met. Likewise, there will be consultation obligations if you are proposing to change terms of employment. This is a complicated and very technical area and one where legal advice should definitely be sought.

REDUNDANCIES – it is obviously open to a business in these times to consider making employees redundant. The difficulty with a situation like this is that it could be a hasty and premature step if this turns out to be a short-term crisis. The problem is that these truly are unchartered territories for businesses in the UK and indeed, around the world. From a legal perspective, employees with less than 2 years’ service have no entitlement to a statutory redundancy payment and provided their dismissals take effect at least a week before they accrue 2 years’ service and are due to redundancy, they will have no right to claim unfair dismissal. For employees with over 2 years’ service, they have a right to claim unfair dismissal which means that you will generally need to consult and comply with the legal requirements of carrying out a fair redundancy.

SICK PAY – there is currently ambiguity about whether employees who are self-isolating are entitled to paid sick leave. If an employee is unwell, then the situation is relatively straightforward – your normal sick pay rules should apply. If somebody is self-isolating on the basis that they have chosen to do so, but are fit and able to work, then it is arguable that they are not entitled to sick pay. The Government has however indicated that employees who are isolating as a result of adhering to their advice, or advice from a GP / NHS 111, will be eligible for Statutory Sick Pay. For some businesses, Statutory Sick Pay can be recovered for up to 14 days where covid19 related. Further details are pending. This may also be a time to review your occupational sick pay scheme and how that might apply in the context of this situation.

HOLIDAY – as a means by which to mitigate the financial impact this situation will have on your employees, there is the option to ask employees to consider utilising some of their holiday entitlement during periods when they might otherwise be laid off without pay. You would need to consider what accrued entitlement exists and again ideally obtain the agreement of the employees concerned.

OFFERS OF EMPLOYMENT – in addition to a recruitment freeze, you may also want to consider whether to withdraw offers of employment or alternatively defer the start date. This is important in the context of redundancy, as a business is under a duty to consider whether it has any suitable alternative employment. If offers have been made, but not accepted, these can be withdrawn with minimal implications. If offers have been made and accepted, they can still be rescinded albeit with the potential for a damages claim, arguably limited to the period of notice that would have applied once their employment had commenced.

In our experience, a key issue in respect of the above is regularly communicating with your employees and being open about the reason for the measures you are introducing.

As you will appreciate, whilst we have outlined options and some of the legal implications, this note does not constitute legal advice as each situation will be different and commercial considerations will no doubt dictate what you as a business ultimately decide to do.

Sherrards is here to support you should you need specific assistance.

Click here to contact Mark Fellows, to find out more. 

Furloughed employees and how to make a claim through the Coronavirus Job Retention Scheme

The Government has now released further details in respect of the Job Retention Scheme and the practicalities of making a claim. They have confirmed that:

The scheme is expected to be up and running by the end of April;

• Employers can use a portal to claim for 80% of furloughed employees’ usual monthly wage costs, up to £2,500 a month, plus the associated Employer National Insurance contributions and minimum automatic enrollment employer pension contributions on that wage;
• The scheme is open to all UK employers that had created and started a PAYE payroll scheme on or before 28 February 2020 and have a UK bank account;
• Employers can use this scheme anytime during the three months starting from 1 March 2020 however the minimum length of time that an employee may be furloughed is 3 weeks.

What can you claim?

Previous guidance advised employers that they could claim for “wage costs” through the scheme however it was unclear exactly what this covered. The Government has now confirmed that, in addition to the grant to cover the lower of 80% of an employee’s regular wage or £2,500 per month, employers can also claim for the associated Employer National Insurance contributions and minimum automatic enrollment employer pension contributions on that subsidised wage. The Government have also clarified that any fees, commission and bonuses should not be included in calculating an employee’s regular wage.

The practicalities of ‘furloughing’ employees:

In order to make a claim, employers will need the following information: ePAYE reference number, the number of employees being furloughed, the claim period (start and end date), amount claimed (per the minimum length of furloughing of 3 weeks), bank account number and sort code, contact name and phone number;

Employers need to calculate the amount they are claiming themselves and HMRC have said that they will retain the right to retrospectively audit all aspects of any claims made;

Employers can only submit one claim every 3 weeks, which is the minimum length an employee may be furloughed for. Claims can be backdated until the 1 March if applicable;

Once HMRC have accepted an employer’s ‘claim, they will pay the grant via BACS payment;

Employers should make claims in accordance with actual payroll amounts at the point at which payroll is run or in advance of an imminent payroll;

Employers must pay the employee all the grant they receive, no fees can be charged or deducted from the money that is granted;

Wages of furloughed employees will be subject to Income Tax and National Insurance as usual. Employees will also pay automatic pension enrolment contributions on qualifying earnings;

The Government has also confirmed that furloughed workers, who are not working, must be paid the lower of 80% of their salary, or £2,500 even if, based on their usual working hours, this would be below National Living Wage (NLW)/National Minimum Wage (NMW).

Points to note:

It would appear that it is likely that employers will be claiming for payments which have already been made to their employees (subject to the usual deductions for tax and employee National Insurance contributions). Accordingly, it looks as though employers will be claiming for the net payment made to employees. This means that what employees will actually receive in their bank account will be less than the lower of 80% of their earnings or the cap of £2,500;

We presume that the Government has chosen a three-week period for making claims under the scheme in order to reduce the risk of fraud, however administratively this could become quite burdensome for employers;

The Government have said that they will issue more guidance on how employers should calculate their claims for Employer National Insurance Contributions and minimum automatic enrollment employer pension contributions, before the scheme becomes live.

Who can you claim for?

• Furloughed employees must have been on an employer’s PAYE payroll on or before 28 February 2020. Employees hired after 28 February 2020 cannot be furloughed;
• The scheme covers full-time employees, part-time employees, employees on agency contracts and employees on flexible or zero-hour contracts;
• The scheme also covers employees who were made redundant since 28 February 2020, if they are rehired by their employer.

For full time and part time salaried employees, the employee’s actual salary before tax, as of 28 February should be used to calculate the 80%.

For employees whose pay varies, if the employee has been employed (or engaged by an employment business) for a full twelve months prior to the claim, employers can claim for the higher of either the same month’s earning from the previous year or the average monthly earnings from the 2019-20 tax year. If the employee has been employed for less than a year, employers can claim for an average of an employee’s monthly earnings since they started work. If the employee only started in February 2020, employers should use a pro-rata of their earnings so far to claim.

The Government guidance also states the following:

• If your employee is on unpaid leave – Employees on unpaid leave cannot be furloughed, unless they were placed on unpaid leave after 28 February 2020.
• If your employee is on Statutory Sick Pay – Employees on sick leave or self-isolating should get Statutory Sick Pay but can be furloughed after this. Employees who are shielding in line with public health guidance can be placed on furlough.
• If your employee has more than one job – Employee’s with more than one employer can be furloughed for each job. Each job is separate, and the cap applies to each employer individually.
• If your employee does volunteer work or training – A furloughed employee can take part in volunteer work or training, as long as it does not provide services to or generate revenue for, or on behalf of an employer’s business. However, if workers are required to complete online training courses whilst they are furloughed, then they must be paid at least the NLW/NMW for the time spent training, even if this is more than the 80% of their wage that will be subsidised.
• If your employee is on maternity leave, contractual adoption pay, paternity pay or shared parental pay – If an employee is eligible for Statutory Maternity Pay or Maternity Allowance, the normal rules apply, and they are entitled to claim up to 39 weeks of statutory pay or allowance. If you offer enhanced contractual pay to women on Maternity Leave, this is included as wage costs that an employer can claim through the scheme. The same principles apply where an employee qualifies for contractual adoption, paternity or shared parental pay.

Topping up the employee’s earnings

It is open to an employer to top up an employee’s salary beyond the grant but they are not obliged to under the scheme. It is worth noting that if employers decide to do this, the following will not be funded through the scheme:

Employer National Insurance Contributions and automatic enrollment contribution on any additional top-up salary; or

Any voluntary automatic enrollment pension contributions above the minimum mandatory employer contribution of 3% of income above the lower limit of qualifying earnings (which is £512 per month until 5th April and will be £520 per month from 6th April 2020 onwards).

When the scheme ends

When the government ends the scheme, employers will have to decide, depending on their circumstances, whether employees can return to their duties. If not, it may be necessary to consider redundancies;

Once the scheme has been closed by the government, HMRC have confirmed that they will continue to process remaining claims before terminating the scheme.

Other Points to Note

To be eligible for the subsidy, when on furlough, an employee cannot undertake any work for or on behalf of an employer’s business. This includes providing services or generating revenue.

Employers should discuss with their staff and make any changes to their employment contract by agreement. To be eligible for the subsidy employers should write to their employees confirming that they have been furloughed and keep a record of this communication.

When employers are making decisions in relation to the process, including deciding who to offer furlough to, equality and discrimination laws will apply in the usual way.

Employees that have been furloughed have the same rights as they did previously. That includes Statutory Sick Pay entitlement, maternity rights, other parental rights, rights against unfair dismissal and to redundancy payments.

In our experience, a key issue in respect of the above is regularly communicating with your employees and being open about the reason for the measures you are introducing.

As you will appreciate, whilst we have outlined options and some of the legal implications, this note does not constitute legal advice as each situation will be different and commercial considerations will no doubt dictate what you as a business ultimately decide to do.

Sherrards is here to support you should you need specific assistance.

 

To find out more, click here to contact Mark Fellows.