Unique Employment Law Issues During COVID-19
The Coronavirus Job Retention Scheme and updates
HMRC has updated its guidance on 9 April and 15 April 2020.
Bond Adams Solicitors from their Leicester headquarters have updated matters to bring you the renewed guidance for its clients worldwide.
There is a great deal of confusion over the (Job Retention) JRS scheme and a number of situations arise as many employees are demanding to be furloughed.
Equally, a number of employees who have been selected to be furloughed due to being on the government’s most vulnerable list are demanding to work so that they receive 100% of wages instead of 80%.
Employers can now furlough and claim for employees provided they were on the PAYE payroll on or before 19 March – previously the scheme did not allow employees who were hired after 28 February 2020.
Employees who were made redundant or who stopped working for the employer after 28 February but before 19 March can also be furloughed if your employer reemploys you.
If an employee is sick or self-isolating, they can be furloughed if there is a good business decision as to why that needs to happen. This means the employee would be on to the furlough scheme and not the governments SSP scheme. This also means that if an employee becomes sick whilst they are on furlough it is up to the employer to make the choice on keeping them on the furlough scheme or the government’s statutory sick pay scheme.
If the employee is moved onto SSP, the employer can no longer claim for the furloughed salary under the Job Retention Scheme and the employer will be required to pay SSP, although a rebate for up to two weeks of SSP may be available
As an employer, if you have made a claim under the scheme, you must pay all of that money towards the employee’s wages, pension and other aspects. You cannot deduct any amounts for say any salary sacrifice schemes or any other aspects
What about holidays? will an employee lose their holiday entitlement if they are furloughed or self-isolating? Bond Adams Solicitors look at these matters at their Leicester headquarters.
With COVID–19 causing a lot of issues for employers especially on the issue of holidays, the government has made some changes to the Working Time Regulations 1998 (WTR). The change will allow workers to carry over up to 4 weeks of holiday for up to 2 years if issues relating to COVID-19 have meant it was “not reasonably practicable” for someone to have taken it.
For example, if an employee has been furloughed, then it would not have been reasonable to have taken it.
Also, if an employee has had to self-isolate by being on the governments’ compulsory list, again that helps the employee.
Let’s now look at some scenarios and questions
Employment Law still stands even under these unique circumstances
1. An employee is on the governments most vulnerable list and receives the letter. They are demanding to come back to work because they don’t want to receive only 80%. What are the options?
Clearly those that have received the letter have been told not to go into work and they cannot work from home, then an employer is entitled to take the safe step of following the government guidance and ensuring that you stay at home
2. An employee had been put on to the furlough scheme and now you are calling a number of employees back but not a few others? Can you do that?
You can do that and that is, unfortunately, a redundancy situation. The redundancy selection process is important to avoid any suggestion of it being unlawful although an employee can only bring proceedings for unfair dismissal if they have 2 years’ service. An employer has to make sure they don’t fall foul of any other matters where 2 years’ service is not needed such as choosing someone because they are unwell which could be disability discrimination etcetera.
3. An employee has been forced to self-isolate and cannot take their holiday. They want to carry it over to the new year.
In that scenario, the working time directive does apply and that is a legal entitlement
4. An employee has been furloughed and as an employee you want to deduct some costs of an accountant has charged to put a deal with the administration of communicating with HMRC as to setting up the scheme or the payroll provider sage has charged you for dealing with the administration. Can you apply those costs on to an employee?
The answer is no, all of the money that is given under the coronavirus grant scheme must be applied for an employees benefit.
If you are having employment issues as a result of coronavirus, we’d love to hear from you. Our Leicester based employment solicitors are working nationwide to help businesses like yours through this time.
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