COVID-19 NEWS BULLETIN 15th APRIL 2020

Daily Press Briefing

Today delivered by the Health Secretary Matt Hancock. Mr Hancock started today by thanking those staying at home and stated that the UK is slowing the virus, adding that spare NHS capacity has reached 2,657 beds and commenting that the UK has been able to ensure that everyone who has needed hospital care had received that care. New details of the UK’s plan to cope with coronavirus in care homes was announced. The UK will be introducing a single brand to social care and supermarkets will be asked to give care staff the same priority as NHS workers and the UK is about to undertake a recruitment drive with the government paying for induction training for the sector. The biggest news today was a change to guidance on dying relatives. New procedures will allow people, where possible, the chance to say goodbye to a relative.

Further news, whilst Northern Ireland extend their lock down by three weeks, German Chancellor Angela Merkel has announced plans today to ease the country’s lockdown slightly.

On a lighter note, hats off to war veteran Captain Tom Moore. Captain Tom, aged 99, was hoping to raise £1,000 for the NHS by completing laps of his garden with the help of his zimmer frame. After the tale of his 100-length walk went viral on social media, the tally raised has reached £7,000,000 and counting!

Daily Updates on the Markets

I am receiving many enquiries as to the correct rules around the Coronavirus Job Retention Scheme (CJRS) and how employers can both take care of their team, protect their business and do so whilst ensuring they adhere to the rules of the scheme. I would like to share here some information which was produced by our HR specialists and has been checked by a HR legal department. Please do peruse the information here and should you want to discuss further, do get in touch and I would be more than happy to introduce you to these guys to access their specialist assistance on this and indeed your wider HR needs.

Breaking news today. Originally, in order to be eligible for the CJRS, employees needed to have been registered on PAYE prior to 28th February. This cut off date has now been moved to the 19th March. This date is the day before the scheme was announced. This means that staff hired before 19th March may now benefit from government assistance. It is estimated 200,000 more employees could now be furloughed as a result of these changes.

Further points to note which have come to light recently with regards the Job Retention Scheme;

 Employers are free to switch employees from sick pay to furlough and vice versa, although this cannot be abused by using furlough to 'top up' small amounts of SSP for short term absences.  ‘Shielding' employees can be furloughed even where their job is not otherwise at risk of redundancy.  Employers who have acquired employees under TUPE after 28 February 2020 can put them on furlough – it doesn’t matter that they were not on your payroll on that date.  Employees cannot work for organisations that are linked to the employer, as well as not working for the employer, when on furlough.  No part of the reclaimed grant can be siphoned off to fund benefits - the entire grant must be paid to the employee. Please do note, the information provided below is for your information only and is in no way a recommendation to take such action for your business. I am of course more than happy to discuss with you individually ways in which you can protect your business. Advice for Employers

The Coronavirus Job Retention Scheme (Furlough) - Details

Please note that while official guidance about this scheme was released on 26 March 2020, there are still many unanswered questions about how the scheme will operate at the time of this release. We will make further information available to our clients as and when it becomes available.

What is the Coronavirus Job Retention Scheme?

The scheme was announced by the Chancellor of the Exchequer on Friday 20 March 2020. It enables employers of workers whom they have sent home due to lack of work to apply to HMRC to be reimbursed in respect 80% of the employee’s usual monthly wage costs, up to a maximum of £2,500 per month. The official guidance is available at https://www.gov.uk/guidance/claim-for-wage-costs-through-thecoronavirus-job-retention-scheme

Who can claim?

Any UK organisation with employees can apply, providing they have created and started a PAYE payroll scheme on or before 28 February 2020 and have a UK bank account.

How long does the scheme run for?

The scheme runs initially from 1 March 2020 for three months. The Chancellor has indicated a willingness to extend the scheme for a longer period if necessary.

How can we access payments?

HMRC are going to administer the scheme and are in the process of setting up a system to facilitate the payments. You can only submit one claim every three weeks. 5. What do we need to do to be eligible for the scheme? HMRC advises that you will need to: • designate affected employees as ‘furloughed workers,’ and notify your employees of this change. Changing the status of employees remains subject to existing employment law and, depending on the employment contract, may be subject to negotiation; and • submit information to HMRC about the employees that have been furloughed and their earnings through a new online portal (HMRC will set out further details on the information required) You will also need:

• Your 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) • your bank account number and sort code • your contact name • your phone number • You will need to calculate the amount you are claiming.

HMRC will retain the right to retrospectively audit all aspects of your claim.

Can we impose furloughed status on an employee?No, you will need the employee’s agreement, ideally in writing. HR Heroes will be providing Furlough Agreements for clients.

How much exactly can we claim?

Where someone earns no more than £2,500 per month gross, you will be able to claim 80% of their gross monthly wage.

Where someone earns more than £2,500 per month, this is the maximum that you will be able to claim. 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%. Fees, commission and bonuses should not be included. If the employee has been employed (or engaged by an employment business) for a full twelve months prior to the claim, you can claim for the higher of either: • the same month’s earning from the previous year; or • average monthly earnings from the 2019-20 tax year

If the employee has been employed for less than a year, you can claim for an average of their monthly earnings since they started work.

You can also claim employer’s national insurance contributions and the minimum employer auto-enrolment pension contributions.

What should we pay a furloughed employee?

You should agree with the furloughed employee what they will be paid, and set this out in a furlough leave agreement. You may agree to pay them only the sums reimbursed by HMRC (as above). Alternatively, you may agree to top up their payments for some or all of their furlough leave.

It does not matter if furlough pay takes an employee below the minimum wage, since the employee is not carrying out any work (subject to the below regarding training).

What if I laid off an employee or made them redundant prior to the announcement of the scheme? You will be able to retrospectively claim on behalf of anyone who has been sent home due to lack of work since 1 March 2020, as long as you keep them in your employment.

You can also retrospectively change the status of someone you have dismissed for lack of work since 1 March 2020 to that of a furloughed employee, with their agreement.

What if an employee started after 1 March 2020?

They would not be eligible to be furloughed, insofar as you would expect to be reimbursed by HMRC. If you have previously furloughed such an employee believing the scheme would permit this, you would now need to consider other options for that individual.

Can someone who is off sick be furloughed?

No. An employee must be ready and able to work.

What if an employee becomes sick whilst on furlough leave?

An employee who has a contractual entitlement to company sick pay and who becomes sick whilst on furlough leave may wish to be placed onto sick leave, so to receive enhanced sick pay. The guidance is not clear on whether this should be done, especially if the employee has not had their minimum furlough leave of three weeks. We await further clarity on this point.

Can someone who is on maternity, paternity or other family friendly leave be furloughed?

No. An employee must be ready and able to work. At the end of their leave, they may be furloughed if there is no work available for them. Can I furlough an employee in the “extremely vulnerable” or “vulnerable” categories detailed above?

Yes, and although there is potential for an indirect discrimination claim to be brought in such circumstances, we consider such claims may be capable of being defended on the basis of objective justification.

Does the scheme apply to fixed-term workers?

We believe the scheme will apply to workers on fixed-term contracts, where they are paid via PAYE. It is unclear at present what the position will be at the point the fixed term contract expires.

Does the scheme apply to zero-hours workers?

Yes, providing they are paid through PAYE.

Do I need to consult with staff prior to placing them on furlough leave?

You should consult with staff, insofar as this involves informing them of the proposal and seeking their consent. We believe verbal consultation in this regard would be sufficient.

It is open to debate as to whether proposing to furlough 20 or more employees at the same establishment within 90 days gives rises to an obligation to collectively consult in advance. Our preliminary view is that this is that this is unlikely on the basis that there is no proposal to dismiss at that stage – merely offers of paid leave being made to staff as an alternative to other measures such as lay off or redundancy, but in reality no-one knows for certain given the unprecedented measures being introduced.

If you proposed to dismiss as redundant 20 or more employees in the event of them objecting to being placed on furlough leave, collective consultation would, however, be required at that juncture.

What if an employee refuses to agree to be furloughed?

If you don’t have enough work for an employee who refuses to be furloughed, you may be able to use some of the other options set out below:

• Temporary lay-off • Short-time working • Redundancies • Varying contractual hours • Paid/unpaid leave (including annual leave) • Wage reductions

Can I reduce someone’s hours and place them on furlough at the same time?

No, that will not be possible. Only employees who are doing no work at all for you can be furloughed. So you could not have someone working, for example, three days a week for you and claim a furlough payment for the other two days per week. You can only claim furlough payments for employees who are working zero hours.

Does a furloughed employee still pay tax on their earnings?

Yes, and deductions should therefore continue to be made as normal.

Can a furloughed employee continue to carry out some of their duties from home?

No. A furloughed employee must not carry out any work, even from home. They 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 your organisation. In relation to any time training, you must ensure the minimum wage is paid.

Can a furloughed employee work elsewhere?

Yes, providing they had that job prior to 1 March 2020. We don’t believe a furloughed employee can take up new employment elsewhere whilst on furlough leave.

For how long do I have to furlough an employee?

The minimum period is 3 weeks. There is no maximum period, and this will be subject to any further updates from the government in relation to when the scheme ends.

Can I bring a furloughed employee back to work and then ‘re-furlough’ them?

The scheme does not appear to preclude this, provided that each period of furlough leave is a minimum of three weeks. However, the government guidance does not include an express confirmation that the same person can be furloughed more than once.

Can an employee request to be furloughed?

Yes they can, however they cannot insist on this. It is for the employer and employee to agree if the employee will be furloughed.

Can a furloughed employee be required to take annual leave?

We think this is possible but we await clarity on this point.

If an employee has been unable to use their annual leave by the end of our holiday year as a result of coronavirus, what should we do?

In these circumstances, i.e., where it is not reasonably practicable for the employee to take some or all of the holiday they are entitled to due to coronavirus, the government has announced that an employee can carry over four weeks of their annual leave entitlement into the next two leave years. Whether the employer will permit the employee to carry forward any additional annual leave would be a matter for contractual agreement.

What if I can’t afford to furlough an employee pending reimbursement from HMRC? There are business loans available that may assist with short term cash flow issues. If this is not appropriate for your business, we would suggest in those circumstances that you seek to agree with employees that they willbe paid upon reimbursement being provided by HMRC.

Furlough Q&A which can be provided to your team

Furlough Agreement Information Sheet

What does it mean to take Furlough Leave?

If you agree to take Furlough Leave, you will not be able to carry out any work for us at all during the period of your Leave. We will pay you in accordance with the Furlough Agreement. This will allow you to receive 80% of your pay before tax, up to a limit of £2,500 per month, and a statutory minimum employer’s pension contribution. If we are able to offer more generous terms, this will be set out in the Furlough Agreement.

How long will I be on Furlough Leave for?

In the accompanying agreement, we are asking you to agree to go onto Furlough Leave until the end of May 2020, which is the date the government has guaranteed to fund the scheme up to at present.

When will my Furlough Leave start?

It will start on the date set out in the Furlough Agreement. This will normally be the first day on which you did no work for us. The agreement will have retrospective effect back to that date if you have already stopped working for us.

What are the conditions for qualifying for Furlough Leave?

We can only place you on Furlough Leave if you were employed by us on 28 February 2020 and you are paid by us through PAYE. There may be alternative government help available for people who don’t meet these conditions.

What deductions will be made from my Furlough Leave payments?

We will have to deduct income tax, employee National Insurance contributions and employee pension contributions in the normal way. Any other contractual deductions such as repayment of a company loan will continue as normal, unless we agree to change the repayment terms.

Can I do voluntary work to help the NHS or other vital services during my Furlough Leave?

You can apply to us for Emergency Volunteer Leave. Our understanding at present is that if we grant this, it will not affect your Furlough Leave payments.

I am currently self-isolating because I or someone in my household has symptoms of Coronavirus. When can I go onto Furlough Leave? You will not be able to start Furlough Leave until your period of self-isolation has ended. You will be paid SSP (or contractual sick pay if applicable) while period of self-isolation continues.

I am currently “shielding” at home for 12 weeks because I have a serious medical condition. Am I eligible to be considered for Furlough Leave?

Yes, the scheme allows people who are shielding to be placed on Furlough Leave.

I have more than one employer. Can I take Furlough Leave if I am continuing to do my other job?

You can be put on Furlough Leave by one employer and continue to work for another, if it is permitted within your employment contract. If you’re put on Furlough Leave by more than one employer, you’ll receive separate payments from each employer.

I am currently on another type of long-term leave, such as Maternity Leave or Adoption Leave. Can I take Furlough Leave?

It may be possible to end your other type of leave early with our agreement. You should not do so without discussing with us whether we are likely to have work for you if you do that. If you ended your other type of leave early and we had no work for you, it should be possible to put you on Furlough Leave.

What if I refuse to go on Furlough Leave?

If we have the contractual right to lay you off without pay, we may have to consider doing so if you are not prepared to accept Furlough Leave. If we did lay you off without pay, you would be entitled to a Statutory Guarantee Payment of £29 per normal working day for the first week of lay off, but would have to apply for state benefits thereafter. In other cases, we may have to consider a range of alternative options. We cannot rule out the possibility that this might include considering compulsory redundancy, however, this is not our preferred or intended option at present.

We cannot give you personal advice on what is the best choice for you, but we expect that going onto Furlough Leave is likely to be the best short-term financial option for most employees who we have no work for.

Example Furlough Agreement

FURLOUGH LEAVE AGREEMENT PARTIES COMPANY NAME (Company/we/us); and EMPLOYEE NAME (you).

MISCELLANEOUS AND DEFINITIONS

This agreement is a variation to your contract of employment, designed to implement and take advantage of the Government’s Coronavirus Job Retention Scheme (the Scheme). Furlough Leave is a period of leave agreed between the Company and you, enabling the Company to apply for financial assistance from the Government under the Scheme.

The Company considers you meet the qualifying conditions for the scheme, as published by the Government on 26 March 2020. As such, the Company is asking you to agree to be placed on Furlough Leave.

You confirm that you have read the Furlough Agreement Information Sheet provided to you by us and you are entering into this agreement of your own free will.

TERMS OF FURLOUGH LEAVE

We agree that with effect from DATE you shall be treated as being on Furlough Leave.

You shall not carry out any work for the Company, save for any education/training that you agree to undertake;

  • we shall pay you and provide you with benefits in accordance with clause 3 of this agreement

  • and your normal entitlement to pay and benefits under your employment contract will be

suspended; and During your period of Furlough Leave:

  • all other terms and conditions of your employment contract will remain in effect.

REQUIRED REMUNERATION/BENEFITS DURING FURLOUGH LEAVE

Whilst you are on Furlough Leave, we are required by law to pay you, and shall pay you, wages/salary in accordance with the Minimum Scheme Requirements. The Minimum Scheme Requirements are the minimum payments we must make to you in order to receive reimbursement from the Government for your wage/salary costs. If we are offering to pay you more than required under the Minimum Scheme Requirements during Furlough Leave, this will be set out in clause 4 below. We understand, but can give no warranty, that the Minimum Scheme Requirements in respect of your pay are as follows:

  • If your pay is a fixed amount in each pay period, we must pay you 80% of your basic pay for

  • each pay period (excluding fees, commission and bonus) as at 28 February 2020.

  • If your earnings are variable from one pay period to another, we will pay you 80% of your

  • Normal Pay for each pay period.

  • Your Normal Pay will be the higher of: Your pay for the same pay period in the

  • previous year; or

  • Your average earnings in the previous 12 months or the period of your employment

  • to date if less than 12 months.

In all cases, the wage/salary payments payable to you in terms of the Minimum Scheme Requirements shall be capped at £2,500 per month, before deductions.

Whilst you are on Furlough Leave, we are required by law to make, and shall make, employer’s pension contributions on your behalf at the minimum level required by auto-enrolment legislation, providing you meet the relevant statutory qualifying conditions We will deduct from your wage/salary payments the minimum corresponding employee pension contribution required by law.

COMPANY REMUNERATION/BENEFITS DURING FURLOUGH LEAVE

a Subject to clause 5 below, during Furlough Leave, the Company will:  Top up the percentage of your wage/salary payable to you in each pay period to NUMBER%  Disapply the cap of £2,500 on your monthly earnings  Increase the cap on your monthly earnings to £AMOUNT  Continue to pay your full employer’s pension contributions, provided you continue to authorise us to deduct from your wage/salary your full employee’s pension contribution, such authority to be given by your acceptance of the terms of this agreement  Continue to provide you with your normal benefits other than wages/salary and employer’s pension contributions, subject to any conditions imposed on us by our insurers where applicable;  Only provide you with pay and pension contributions in accordance with the Minimum Scheme Requirements.

GENERAL CONDITIONS DURING FURLOUGH LEAVE

a The payments made to you whilst on Furlough Leave will be subject to the normal deductions that we are required to make by law and/or in accordance with your contract of employment, including income tax, employee National Insurance contributions and employee pension contributions. b Annual leave will accrue as normal during Furlough Leave. You may take annual leave during the period of Furlough Leave to the extent permitted by the terms of the Scheme. The Company may give you notice in writing of any dates on which you are required to take annual leave during your period of Furlough Leave. During any period of annual leave, you will be paid in accordance with the normal terms of your employment contract.

Your Furlough Leave shall end on the earliest of the following events:

i if you are employed on a fixed-term employment contract, the date on which that contract expires, unless we mutually agree to extend the contract;

ii the Scheme ending (funding is currently promised by the Government up to 31 May 2020, although the Scheme may be extended);

iii either you or us ceasing to be eligible for funding under the Scheme; or iv us deciding, at our sole discretion, to cancel Furlough Leave and bring you back to work at any time, even where we decide to do so temporarily.