COVID-19: What Employers Need to Know Thursday, 18 Ju June e - - PowerPoint PPT Presentation

COVID-19: What Employers Need to Know

Thursday, 18 Ju June e 2020 Employment Law Webinar

Furlough Scheme Update

Carl Vincent Girlings Solicitors

1) A brief history 2) New flexibility 3) Tapering of relief 4) Agreement 5) Annual leave 6) Sickness Absence

Summary

COVID-19 What Employers Need to Know: 18 June 2020

• A leave of absence from duty granted especially to a soldier

‘Furlough’

COVID-19 What Employers Need to Know: 18 June 2020

• Announced – 20 March
• Start date (back-dated) – 1 March
• HMRC Portal opened – 20 April (140,000 applications

relating to more than 1m employees received on day 1)

• Last date for ‘new’ furlough – 10 June
• 8.9 million employees
• End date – 31 October

A Brief History

COVID-19 What Employers Need to Know: 18 June 2020

• ‘Abusive’ claims or claims ‘contrary

to the exceptional purpose’

• f CJRS
• Furlough = employees instructed to cease work by reason of

circumstances arising as a result of coronavirus or coronavirus disease

• Payments in respect of furloughed employees arising from

the health, social and economic emergency in the UK resulting from coronavirus and coronavirus disease

Purpose

COVID-19 What Employers Need to Know: 18 June 2020

• HMRC reimburse the lower of

80% of salary or £2,500 per month plus Employer NICs & Employer pension contributions

Reimbursement

COVID-19 What Employers Need to Know: 18 June 2020

• Pre 1 July – ‘cease all work’
• Post 1 July – furloughed staff able to work part time

without jeopardizing furlough status

• No 3 week minimum period

Flexible Furlough

COVID-19 What Employers Need to Know: 18 June 2020

• Begins from 1 August

Tapering

COVID-19 What Employers Need to Know: 18 June 2020

• Reimbursement of employer NICs and pension

contributions stop

August

COVID-19 What Employers Need to Know: 18 June 2020

• HMRC contribution falls to lower of 70% of wages
• r £2,187.50; employer must top up to 80% of

wages (subject to the £2,500 cap)

September

COVID-19 What Employers Need to Know: 18 June 2020

• HMRC contribution falls to lower of 60% of wages
• r £1,875; employer must top up to 80% of wages

(subject to the £2,500 cap)

October

COVID-19 What Employers Need to Know: 18 June 2020

• Must be agreement on furlough
• Specify main terms
• In writing or
• Confirmed in writing by the

employer

• Keep record until 30 June 2025
• Update to reflect any post 1 July changes

Consent

COVID-19 What Employers Need to Know: 18 June 2020

• Holiday accrues
• Can be taken during furlough
• Normal remuneration
• Timing - Reg 15 WTR
• Carry over (4 weeks)

Annual Leave

COVID-19 What Employers Need to Know: 18 June 2020

• Relationship with SSP
• Long term sickness
• Shielding employees

Sickness Absence

COVID-19 What Employers Need to Know: 18 June 2020

• Generous scheme
• Well conceived
• Well executed
• But what next?

Conclusions

COVID-19 What Employers Need to Know: 18 June 2020

Redundancy and Furlough

David Morgan Girlings Solicitors

• How does the CJRS impact redundancy dismissals?
• How does furlough affect redundancy procedures?
• Pitfalls and practical advice

Issues

COVID-19 What Employers Need to Know: 18 June 2020

Can I make furloughed employees redundant?

• Early stated aim of CJRS

was “to avoid redundancies”

• This was revised – now:

“The scheme is designed to help employers whose

• perations have been

severely affected by coronavirus (COVID-19) to retain their employees and protect the UK economy.”

COVID-19 What Employers Need to Know: 18 June 2020

Can I make furloughed employees redundant?

• Guidance to Employees:

“Your employer can still make you redundant while you’re on furlough or afterwards.”

• But little explicit government guidance on

redundancies

COVID-19 What Employers Need to Know: 18 June 2020

Does furlough change the law relating to redundancy?

• No – the contract of employment of employment is

unaffected except with regards to the agreed terms

• f furlough leave
• An employee’s statutory rights are unaffected
• The law relating to redundancy remains in full force

and is unamended

COVID-19 What Employers Need to Know: 18 June 2020

Does furlough change the law relating to redundancy?

• Still need to meet the definition of redundancy (s139

Employment Rights Act 1996)

• Cessation of business
• Reduced need for work of a particular kind

COVID-19 What Employers Need to Know: 18 June 2020

Does furlough change the law relating to redundancy?

• Still need to meet the requirements of a fair dismissal

under s98 Employment Rights Act 1996

• The determination of whether a dismissal is fair will

still depend on whether the employer acted reasonably in treating it as fair reason for dismissal

COVID-19 What Employers Need to Know: 18 June 2020

Does furlough change the law relating to redundancy?

• Still need to use a fair procedure
• Informing and consulting employees regarding the

redundancy proposal is fundamental to a fair procedure

• Employers need to consider how to conduct a fair

procedure while employees are furloughed

COVID-19 What Employers Need to Know: 18 June 2020

Furlough and Collective Consultation

• Where it is proposed that 20 or more employees are

dismissed with a 90 day period then the Trade Union and Labour Relations (Consolidation) Act 1992 is engaged.

COVID-19 What Employers Need to Know: 18 June 2020

Furlough and Collective Consultation

• Employers must:
• Facilitate the nomination and election of employee

representatives

• Collectively consult with those reps for a minimum of 30 or

45 days

• Provide the reps with access to employees

COVID-19 What Employers Need to Know: 18 June 2020

Furlough and Collective Consultation

• Consultation can take place during furlough
• It is explicit within the guidance that employees can

undertake representative duties for the purposes of individual or collective consultation while furloughed

• NO explicit confirmation that employees can be

consulted – this is implied from the fact that they can be made redundant

COVID-19 What Employers Need to Know: 18 June 2020

Furlough and Collective Consultation

• The traditional model of redundancy consultation

with face to face meetings, paper ballots and group meetings between representatives and their constituents may not be possible where employees are furloughed or are self-isolating

COVID-19 What Employers Need to Know: 18 June 2020

Furlough and Collective Consultation

• Points to consider (1)
• How to communicate the

proposed redundancy to employees who are on furlough and alternatives to a face to face meeting

• How to facilitate the nomination

and election of reps where employees are furloughed

COVID-19 What Employers Need to Know: 18 June 2020

Furlough and Collective Consultation

• Points to consider (2)
• How to hold meetings with elected reps given the

requirements of social distancing

• Is face to face possible or will online meetings take place?
• Do reps have the necessary IT access and knowledge?
• How to provide access for reps to the employees they

represent

• Will employees consent to contact details being shared?

COVID-19 What Employers Need to Know: 18 June 2020

Furlough and Collective Consultation

• Points to consider (3)
• How are selection pools and criteria impacted by furlough
• Take care to identify selection pools
• Simply identifying furloughed employees as at risk may lead to

unfairness and/or potential discrimination

• Take care with selection criteria and the assessment period

COVID-19 What Employers Need to Know: 18 June 2020

Individual Consultation and furlough

• Similar issues arise for the

individual consultation process

• Remember the right to be

accompanied and the need to make provision for a companion and a note taker at any meeting, whether face to face or online

COVID-19 What Employers Need to Know: 18 June 2020

Should dismissal be delayed to the end of the CJRS?

• This may not result in an unfair dismissal but it is

something an employer should consider, particularly if it is put forward by the employee in consultation

• The employer may have a good reason for rejecting such a

proposal, particularly given the increased costs of the furlough scheme over the coming months

• But consulting about how the consequences of the

redundancy can be mitigated forms part of a fair procedure, so employers should give this careful consideration

COVID-19 What Employers Need to Know: 18 June 2020

Furlough and Notice Pay

• No government guidance as to the rate at which

notice pay should be paid

• Employees with a statutory entitlement to notice or a

contractual entitlement which is no more than a week longer than the statutory entitlement are entitled to “a week’s pay” for each week of notice (s87(4) ERA 1996)

COVID-19 What Employers Need to Know: 18 June 2020

Furlough and Notice Pay

• Where employees have normal working hours this

will be a “sum not less than the amount of remuneration of that part of their normal working hours” (S88(1) ERA 1996)

COVID-19 What Employers Need to Know: 18 June 2020

Furlough and Notice Pay

• Employees who have a longer contractual entitlement

may only be entitled to the pay it was agreed they would receive in the furlough agreement

• But employment law commentators are speculating

that tribunals would be sympathetic towards claims from employees that they are entitled to full pay

COVID-19 What Employers Need to Know: 18 June 2020

Pitfalls

• Beware of the temptation to assume that

furloughed employees can be selected for redundancy because they have been furloughed

• Some employees were furloughed because

they were more at risk because of a disability, or because they had childcare issues, which could lead to discrimination claims

COVID-19 What Employers Need to Know: 18 June 2020

Pitfalls

• Do not assume employees check email
• Do not assume that all employees have access to the

technology needed for online meetings or the knowledge needed to take part

• Do review your data protection policies and

procedures and update employees whose details may be passed to employee reps

COVID-19 What Employers Need to Know: 18 June 2020

Pitfalls

• Do take care with the number of employees affected.

The definition of the redundancy for collective consultation purposes is wide

• For example if you propose to make 12 employees

redundant and require another 12 to change working hours then you may trigger a collective consultation

COVID-19 What Employers Need to Know: 18 June 2020

Getting back to business – managing the return to work during COVID-19

Paul McAleavey Girlings Solicitors

Topics we’ll cover

• The law and government guidance
• Preparing the workplace
• How to deal with employees’ rights to rely on

“reasonable belief of serious and imminent danger” protection

• Dealing with employees who are:
• Extremely vulnerable
• Vulnerable
• Living with someone who is extremely

vulnerable/vulnerable

• Data protection considerations

COVID-19 What Employers Need to Know: 18 June 2020

The law

• Employers are responsible for ensuring the health and

safety of their employees and those that are affected by their activities so far as reasonably practicable (sections 2 and 3, Health and Safety at Work etc. Act 1974).

• An employer must assess and review the work-related

risks faced by its employees and by others affected by the company's activities. This risk assessment must be "sufficient and suitable" (regulation 3, Management of Health and Safety at Work Regulations 1999 (SI 1999/3242)).

COVID-19 What Employers Need to Know: 18 June 2020

Preparing the workplace

• Government guidance
• Risk assessments
• Requirement to publish
• Communicate with staff

COVID-19 What Employers Need to Know: 18 June 2020

Practical steps

• Plan carefully
• Increased hygiene
• Respiratory control
• Manage transmission risk
• Cleaning
• Notices

COVID-19 What Employers Need to Know: 18 June 2020

Sections 44 and 100 of the Employment Rights Act 1996

• s.44(e)

An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done

• n the ground that in circumstances of danger which the

employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or

• ther persons from the danger.
• s.100 – the remedy

COVID-19 What Employers Need to Know: 18 June 2020

In practice

• Circumstances of danger –
• bjective test
• Reasonable belief of serious

and imminent danger – subjective test

• What if employee insists on

wearing PPE?

• Causation is key

COVID-19 What Employers Need to Know: 18 June 2020

Vulnerable employees (1)

Three categories: “Extremely vulnerable”

• Examples:
• Very serious respiratory conditions
• Pregnant women with underlying

health conditions

• Certain cancers
• Monitor government guidance
• Equality Act 2010 considerations
• Risks of forcing to work
• Alternative roles?

COVID-19 What Employers Need to Know: 18 June 2020

Vulnerable employees (2)

“Vulnerable individuals”

• Examples:
• Over 70 years old
• Pregnant but no underlying health conditions
• Less serious respiratory conditions
• Have s44 and s100 rights.

COVID-19 What Employers Need to Know: 18 June 2020

Vulnerable employees (3)

Employees living with someone who is vulnerable or extremely vulnerable

• Consult and discuss
• Inevitably fact sensitive
• Associative discrimination risks

COVID-19 What Employers Need to Know: 18 June 2020

Data protection considerations

• Don’t forget the GDPR and

Data Protection Act 2018

• Do you need temperature

checking?

• Record keeping
• Minimise intrusiveness and

record keeping

• Privacy assessments
• ICO guidance

COVID-19 What Employers Need to Know: 18 June 2020

Contact the Employment Law team

COVID-19 What Employers Need to Know: 18 June 2020

Carl Vincent – Head of Employment Law T: 01233 664711 E: carlvincent@girlings.com Paul McAleavey – Senior Associate Solicitor T: 01233 664711 E: paulmcaleavey@girlings.com David Morgan – Associate Solicitor T: 01233 664711 E: davidmorgan@girlings.com

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