By Ben Smith and Elliott Lauder - 5 November 2020
The short answer is that a lot has changed since March. Employers and HR professionals have had to grapple with perhaps the most sudden and unexpected changes to employment law seen for many years. Furlough, working from home, making workplaces 'Covid-secure’ and a second lockdown – it has been at times a bewildering pace of change (even for the employment lawyers!).
As we move into winter and lockdown 2.0, it is a good time to take stock of the employment law landscape and plan ahead. In this article we break down the key topics that employers and HR professionals need to be thinking about, both recapping what has changed to date and looking ahead.
Furlough and other financial support
Furlough
Furlough (aka the Coronavirus Job Retention Scheme) has been a major topic for employers to grapple with since March. The furlough scheme was due to close on 3 October 2020, but in a major shift, the UK government announced on 5 November that it would be extended until 31 March 2021.
From 1 November 2020, the furlough scheme will cover 80% of wages up to a maximum of £2,500 per month until at least January 2021, when the Government will review the level of employer contributions required. Employers will need to pay National Insurance Contributions and pension contributions. Employers will continue to be able to ‘flexibly furlough’ staff – reducing hours to a part time basis and claiming under the furlough scheme for unworked hours.
One major shift in the furlough scheme is that HMRC will publish details of employers who make claims under the furlough extension. This is expected to begin in December. More details on this are expected on 10 November.
Full guidance on the furlough extension will be published on 10 November.
Employer eligibility requirements:
- Employers do not need to have used the furlough scheme previously.
- Businesses across the UK can claim on the furlough scheme, whether they are open or closed.
- All previous eligbility requirements remain in place.
Employee eligibility requirements:
- Employees must have been on PAYE payroll on 30 October 2020. The employer must have made a PAYE RTI submission for the employee between 20 March and 30 October 2020.
- There is no requirement that the employee was previously furloughed.
- Employees must have agreed to the furlough arrangements and any changes to their terms and conditions of employment.
Furlough record keeping obligations for employers:
- Furlough letters (i.e. designating employees as furloughed) and similar communications must be retained for 5 years.
- Records of amounts claimed for each employee in each claim period must be kept for 6 years.
- Records of the calculations used to determine the amount to claim must be kept for 6 years (in case HMRC need further information about the claim or audit the claim in the future).
- For flexibly furloughed staff, more records must be kept for 6 years including records of hours worked and spent on furlough.
For more detail on the furlough scheme see our Furlough FAQs here.
Other support measures
As a result of the furlough extension, the introduction of the Job Support Scheme and the Job Retention Bonus has been postponed until further notice.
Home working and returning to the office
Home working
A big challenge for employers since March has been the sudden shift to a radically different way of working, with remote working the norm for many. As Covid restrictions continue and attitudes towards home working (from both employees and employers) shift, increased levels of home working looks likely to remain a feature of working life.
Employers should be:
- Keeping on top of the latest guidance on what businesses can be open and when (and for which employees) home working should be the default. Current guidance across all local Covid alter levels is that employees should work from home where they can effectively do so.
- Put in place clear policies and procedures for home working. See our working from home policy checklist here.
Returning to the office
As offices closed their doors in March and employers grappled with the change to homeworking, the conversation quickly turned to how and when they could get everyone back to the office. From 1 August, offices have been able to re-open again, given that they have been made “Covid secure”. However the brakes were halted on many employers plans for a gradual office reopening, when the government changed their messaging on 22 September advising people to work from home over winter where possible.
Despite this, offices can currently be open under all three of the tiered local lockdown measures, if they have carried out the necessary risk assessment and are Covid secure. For details on how to carry out an office Covid risk assessment and other guidance on health and safety measures required to open an office environment, see our health and safety checklist and HSE guidance below.
Holiday
-
New rules mean employees are entitled to roll over accrued but untaken annual leave where it was not reasonably practicable to use that leave in the current leave year “as a result of the effects of the coronavirus (including on the worker, the employer or the wider economy or society”.
-
This applies from 26 March 2020.
-
Carried over leave must be used in the 2 leave years following the year in which that leave accrued (meaning that leave accrued in 2020 must be taken by the end of 2022, assuming the employer’s leave year runs from 1 January – 31 December each year).
Statutory Sick Pay
A major shift in SSP has been the expansion of ‘deemed incapacity’ to include various types of self-isolation due to Covid-19 risks. Anyone falling into these categories will be entitled to SSP where they are unable to work from home (and subject to the usual eligibility requirements for SSP).
This includes:
- Those self-isolating for 10 days (or until the end of the isolation period, if earlier) because they have Covid-19 symptoms (however mild).
- Those self-isolating due to a positive Covid-19 test result.
- Those self-isolating because someone in their household has received a positive Covid-19 test result.
- Those self-isolating for 14 days (or until the end of the isolation period, if earlier) if someone in their household is isolating due to Covid-19 symptoms.
- Those who are shielding after receiving written notification from the government (not currently relevant in England and Wales as shielding has been paused).
- Those self-isolating following a notification through the contract tracing system that they have come into contact with a positive Covid-19 case and need to isolate.
- Those self-isolating for a period of up to 14 days on doctor’s advice prior to admission to hospital for surgery or other procedure.
Other key points on SSP are:
- The normal requirement for three “waiting days” before SSP becomes payable has been temporarily waived for sickness absence after 13 March 2020, meaning SSP will be payable from the first day of absence from work. This is a blanket change and also applies to sickness absence for non-Covid-19 related illness.
- From 28 March 2020, anyone notified by the UK Government’s ‘test and trace’ system that they have had contact with a confirmed Covid-19 case and are therefore required to isolate at home for 14 days will be eligible to receive SSP.
- Individuals who are self-isolating because they or someone in their household has Covid-19 or are shielding are able to obtain an ‘isolation note’ from the NHS website or NHS 111, rather than being required to visit their doctor in person, which will act as evidence for employers in relation to sick pay entitlement. ‘Isolation notes’ are not available to those who have been told to isolate by the ‘test and trace’ system. Instead employees should provide evidence of the notification received from the ‘test and trace’ system if the employer requires evidence of sick pay entitlement.
- Businesses with fewer than 250 employees will be able to claim back from the government the cost of providing SSP for up to 14 days to any employee absent from work due to Covid-19 (including if they are required under current guidance to self-isolate) where the first day of absence fell on or after 13 March 2020. The Coronavirus Statutory Sick Pay Rebate Scheme opened for claims on 26 May 2020.
If you or your organisation would like more information about any of the topics covered in this article, please get in touch with your usual GQ|Littler contact or email [email protected].