Workplace considerations during Lockdown
Further to the Prime Minister’s announcement on 4 January 2021, England is now in a third national lockdown until at least 15 February 2021. Employers must take “every possible step” to facilitate remote working. In addition, certain businesses are required to close and the full list of businesses required to close can be found here.
This article looks at the impact of the latest lockdown on employment law and gives an update on the COVID-19 situation.
Furlough was a concept first introduced by the UK Government on 20 March 2020. Furlough allows employers to claim 80% of an employee’s usual salary for hours not worked, up to a maximum of £2,500 per month. You can check if you can claim for your employees’ wages through the Coronavirus Job Retention Scheme (CJRS) here.
The CJRS has now been extended until 30 April 2021. As previously under the CJRS, employers are still able to choose to top up employee wages above the scheme grant at their own expense if they wish. There are currently two arrangements for furlough either:
- Fully furlough – where employees do not work at all for the employer; or
- Flexible furlough – where employees work on a part time basis for the employer and are furloughed for their remaining contracted hours which are not worked.
It is imperative that businesses who are placing staff on furlough (either full or flexible) do so in writing as it is a fundamental change to the employment contract. We strongly advise the use of a signed furlough agreement, in advance of placing employees on furlough. In addition, businesses are legally obliged to keep a written record of the furlough arrangements for five years, as well as keeping records of how many hours employees work and the number of hours they are furloughed (i.e. not working).
The latest HMRC Treasury Direction has introduced tight new time limits for making claims under the extended CJRS, along with time limits for amending claims already made. The time limits for making new furlough claims under the CJRS are as follows:
|Claim for furlough days in:||Claim must be submitted by:*|
|December 2021||14 January 2021|
|January 2021||15 February 2021|
|February 2021||15 March 2021|
|March 2021||14 April 2021|
|April 2021||14 May 2021|
* there are very limited circumstances for missing the time limits, provided you have a “reasonable excuse” for failing to do so.
GOV.UK will be publishing information on employers who claim for CJRS on or after 1 December 2020. It will share the employer name and an indication of the value of the claim within a banded range.
Furlough and sick leave
Those employees who are clinically extremely vulnerable, at the highest risk of severe illness from coronavirus or off on long-term sick leave can be placed on furlough. It is up to employers to decide whether to furlough these employees. The CJRS guidance states employer does not need to be facing a wider reduction in demand or be closed to be eligible to claim. This conflicts with exceptional purpose of the CJRS which was that the scheme should only be used if operations have been affected by COVID-19.
HMRC have confirmed that it does not intend that the CJRS to be used for short-term sickness absence for staff that are not already furloughed. This means that those employees on short-term sick leave or self-isolating (and would otherwise be working but for their short-term sickness absence or self-isolation) should not be placed on furlough to circumvent paying any contractual or statutory sick pay.
Furlough and caring responsibilities resulting from COVID-19
Most primary and secondary children cannot go to school during Lockdown 3.0. Employees who have children of a school age may find themselves with a challenge of looking after children whilst working at home.
The government has confirmed that working parents dealing with school closures enforced as part of the new lockdown, and who are unable to work or are working reduced hours as a result of caring responsibilities arising from COVID-19 (including caring for children who are at home following the closure of schools or childcare facilities, or caring for a vulnerable adult in the household) are eligible for furlough.
The position is less clear in relation to furloughing an employee just because someone in their household is shielding. Specific advice should be taken in this regard.
What can employers use the CJRS for?
|Activities that are permitted under CJRS||Activities that are not permitted under CJRS|
|An employer can use furlough if it cannot maintain their workforce because operations have been affected by coronavirus (COVID-19).||An employer should not use furlough if their operations have not been affected by coronavirus (COVID-19), or if the employer receives public funding for staff costs, or if your employees are due to take paid leave.|
|Employers can require that holidays are taken during furlough provided twice as much notice is given to the amount of leave to be taken (for example, 2 weeks’ notice must be given to compel an employee to take 1 weeks’ leave).||Furlough cannot be used to cover the costs of notice periods. This is an important recent change. Employers can no longer claim under CJRS if the employee is serving their notice period (irrespective of how notice was given).|
|Employees who are flexible furloughed can work for any amount of time, and any work pattern but they cannot do any work for an employer during hours that they are recorded as being on furlough.||Employees who are fully furloughed cannot undertake any work for their employer whilst they are furloughed full time.|
|Employers can claim employees who were employed on 30 October 2020, as long as the employer has made a PAYE RTI submission to HMRC between the 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee.||This may differ where you have made employees redundant, or they stopped working for you on or after 23 September 2020 and you have subsequently re-employed them.|
|Using the entirety of the CJRS grant to cover the employee’s subsided furlough pay in the form of money (salary).||Using any element of the CJRS grant to net off to pay for the provision of any benefits or a salary sacrifice scheme. Where the employer provides benefits to furloughed employees, including through a salary sacrifice scheme, these benefits should be in addition to the wages that must be paid under the terms of the CJRS.|
HRMC have a useful online webchat resource for employers which can be accessed here.
What do employers need to consider during Lockdown 3.0?
- Review the workforce if the business is affected by COVID-19 and give consideration as to whether furlough (either full or flexible) is needed, including whether you have any working parents.
- Review affordability of “top ups” to furlough and , if necessary, seek to implement revised terms.
- Review accrued holiday entitlement and decide whether employees are to be instructed to take holiday during furlough in whole or in part?
- If employees can work at home, employers should discuss their employee’s working arrangements, and employers should take every possible step to facilitate their employees working from home, including providing suitable IT and equipment to enable remote working.
- With so many employees working from home, there is an assumption that everyone has a safe work environment. Unfortunately, this is not always the case and employers’ health and safety obligations extend to supporting workers who are, or they suspect may, be victims of domestic abuse for example so you should regularly check on the welfare of your employees.
- Where people cannot work from home, employers should take steps to help employees avoid busy times and routes on public transport. Employers are also reminded that COVID-19 secure guidelines should be closely followed to reduce transmission risk (Hands, Face, Space).
If you have any specific queries on this guidance note, please contact our employment team at firstname.lastname@example.org for any further advice. This general guidance is correct as at 07 January 2021 but may be subject to change which may or may not be notified to you. This update should not to be taken as advice and we strongly recommend that specific advice is sought if required..