Beyond Content 01 Furlough After 30 June 2020 02 Flexible - - PowerPoint PPT Presentation

Flexibility: Furlough & Beyond

Employment Law Webinar

Content

01 02 03 Furlough After 30 June 2020 Flexible Working Requests Flexible Contract Terms

Furlough After 30 June 2020

Stephen ten Hove

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• Statement by Chancellor of the Exchequer: 29 May 2020
• HMRC Guidance: 12 June 2020
• Treasury Direction to HMRC: 25 June 2020

CJRS after 1 July: Sources

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The criteria for eligible employers remain the same:

• You cannot maintain your workforce because your
• perations have been affected by coronavirus?
• If so, you may furlough employees and apply for a grant

provided you record them as being on furlough

CJRS: Which employers can claim from 1 July 2020?

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• You will not be able to make claims for July until 1 July

2020

• Note: 31 July 2020 is the last day to submit claims for

furlough grants for periods ending on or before 30 June 2020

Time limits to claim

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• The definition of “employee” for the purpose of furlough

from 1 July is unchanged

• But: you can only claim a grant in respect of employees for

whom you have previously received a grant payment

• That is: those previously furloughed for at least three

consecutive weeks between 1 March and 30 June 2020. Last day 10 June 2020

Which employees qualify for furlough payments?

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• Finally, the maximum number of employees you may claim

for after 1 July 2020 cannot exceed the maximum claimed for before 1 July

• Exceptions:
• Employees returning from statutory parental leave or a

returning military reservist

Which employees qualify for furlough payments? (2)

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• The definition of “work” remains the same
• Provisions as to TUPE remain the same

The definition of “work” and TUPE

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• Are you planning to have employees both working part

time and on furlough part time?

Previous poll results

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Are you planning to have employees both working part time and on furlough part time?

Poll

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• You will be able to “flexibly furlough” employees
• You can claim the grant for the hours your flexibly

furloughed employees do not work when compared to the hours they would normally have worked during the relevant period

• From 1 August the level of the grant available will be slowly

reduced as follows:

What changes from 1 July 2020?

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• In August 2020: employers will have to pay employer NIC

and pension contribution on furlough payments

• In September 2020: employers will pay what they paid in

August plus 10% of employee furlough cost. Furlough grant capped at £2,187.50

• In October 2020: as September, but the employer

contribution to furlough is 20% so furlough pay capped at £1,875.00

What changes from 1 July 2020? (2)

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• You must keep a copy of all records for six years including:
• Your agreement about terms of furlough with your

employees

• The amount claimed and claim period for each

employee

• The claim reference number for your records
• Your calculations in case HMRC wish to see them
• Usual hours worked for employees on furlough
• Actual hours worked for employees you flexibly

furloughed during period of claim

Record keeping

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• The maximum grant is £2,500 per month or £576.92 a
• week. If you claim for periods that are not one month or
• ne week you will need to calculate a daily wage amount

for each employee and then work out the number of calendar days during each month the employee is furloughed

• In July, August and October daily rate: max. of £80.65 in

September: a max. of £83.34

• In September and October this is the max. amount you will

have to pay a furloughed employee but the grant you can claim from HMRC will be lower

Working out the claim

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• From 1 July onwards you cannot make a furlough claim

that covers more than one calendar month

• Fixed pay is easier. Variable pay? Compare with same

calendar period in 2019/2020 tax period or average wages tax year 2019/2020 or, if neither, average over remainder

• f tax year
• HMRC will be “reasonable” so long as grant applications

are honest and supported by documents. It also promises to update its Guidance with fresh calculation scenarios

Working out the claim (2)

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• Recommend HMRC’s Guidance and not the Treasury

Direction

Working out the claim (3)

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• The Treasury Direction does not definitively say that the

CJRS will end on 31 October 2020

After October 2020?

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Flexible Working Requests

Adam Williams

Do you anticipate an increase in flexible working requests over the next year?

Poll

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Flexible working requests

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• Extent of the statutory right
• Handling a request
• Rejections and challenges
• What lies beneath?
• Surfing the wave

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• Eligible employees (service/status), have right to:
• make a request for a change to their terms of

employment governing how and when they work

• have that request dealt with in a “reasonable manner”

and

• only have their request refused for a prescribed

business reason (s. 80G(1)(b)) and on correct facts

• Ineligible employees can make an informal request

Extent of the statutory right

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Request must Be dated, in writing, and state that it is made under s.80F ERA Set out change requested and intended start date Explain what effect, if any, it is perceived as having

• n employer and how this might be addressed and

Confirm whether a previous request has been made and, if so, when

Handling a request

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Reason for request? ACAS Code Discuss Deliberate over Deal (without) Delay

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• Rejection must be based on genuine belief that a valid

ground for refusal applied

• Fairness and reasonableness not relevant, but assessment
• f factual basis for belief is
• Consistency?
• Appeals?
• Claims
• Typically within three months of outcome
• Financial value is limited (<£5,000) but
• Burden of dealing, and risk of order to reconsider

Rejections and challenges

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• Beneath the surface of any request for flexible working

(formal or informal) might be

• a discrimination complaint and/or
• a resignation and constructive dismissal claim
• Indirect sex; religion/belief; disability; part time/fixed term
• Suddenly, ET is able to scrutinise the motive and

legitimacy of the employer’s judgement/outcome

• Objective justification (PMALA)
• Discriminatory, or seriously flawed, decision making

process could be a fundamental breach entitling employee to resign

• ‘RORR’ test, for fairness of ‘dismissal’

What lies beneath?

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• Build robust processes
• Who will handle?
• Will there be a moderator?
• What’s the order of dealing/priority (reason, date of

receipt etc.?

• Reasons (will you insist, or would you rather not know)?
• More time or trial as a modified acceptance (uncertainty)?
• Impact of previous requests on subsequent
• Rejections – ‘sub-optimal’ rather than unworkable?
• Identify now/in advance relevant challenges that might

apply to request from different parts of business, and (accurate) factual basis. Update in light of requests granted

Surfing the wave

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How important is the engagement and knowledge

• f line management in

dealing with FWRs effectively?

Poll

Flexible Contract Terms

Will Walsh

Do your employment contracts contain the right to lay off employees?

Poll

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• Mobility clauses
• Home working
• Role flexibility
• Flexibility on hours and shifts

Increasing flexibility in contracts

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• Lay-off and short-time working
• Right to insist that holiday is taken at specified times
• Pay in lieu of notice
• Company sick pay

Cost saving measures

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• Lay-off means no pay where no work to offer
• Short-time means less than half pay because reduced

work

• Statutory Guarantee Payment for non-working days
• Right to claim redundancy payment
• Two years of service needed
• Lay-off/short-time for four consecutive weeks or six

weeks in 13 week period

• Employee gives notice of intention
• Can contest if reasonably expect resumption within

four weeks

• Employment Tribunal determines disputes

Lay-off and short-time

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• Phase over time
• Consent
• Termination and re-engagement

Making contract changes

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Stephen ten Hove

Speakers

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Partner, Employment 0207 822 1518 Stephen.tenHove@dmhstallard. com

Will Walsh

Partner, Employment 01293 558540 Will.Walsh@dmhstallard.com

Adam Williams

Partner, Employment 01483 467413 Adam.Williams@dmhstallard. com