Howells Employment Updates: August 2020

The past seven months have been eventful to say the least. As a result of the pandemic, it has been a difficult period for businesses and we suspect there is more to come in the second half of the year.

In this updates post, we summarise the resent changes in the law and outline what to expect in the months to come.

The 2020 Timeline

13th March 2020 - Statutory Sick Pay (General) (Coronavirus Amendment) Regulations 2020: If an employee is self-isolating because of Coronavirus symptoms they may be eligible for SSP for every day they are self-isolating.

26th March 2020 - Working Time (Coronavirus) (Amendment) Regulations 2020: Emergency legislation was passed relaxing the restriction on carrying over the four weeks’ leave. Permit carry-over of any untaken WTD (Working Time Directive) leave where it was not reasonably practicable to take in the leave year “as a result of the effects of the Coronavirus”.

31st July 2020 - Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020:  Furloughed employees who are made redundant will receive their statutory redundancy pay based on their normal wages, rather than the reduced furlough rate. The changes will also apply to statutory notice pay and other entitlements.  

31st October 2020 - Coronavirus Job Retention Scheme: Rishi Sunak announced that the Coronavirus Job Retention Scheme (CJRS) will end on 31st October 2020. There is no intention to extend the CJRS any further at this stage.  

31st December 2020 - BREXIT Transition Period:  If the UK-EU withdrawal agreement applies then the transitional agreements under the agreement are expected to end on this date but may be extended for up to one or two years.

1st January 2021 - Immigration, Nationality and Asylum (EU exit) Regulations 2019:  The existing working rights for EU citizens entering the UK will end. A modified version of the current ‘Points Based System’ that is now in place exclusively for non-EU workers will extend next year to anyone who is not British and Irish. 

Read more: The UK is Introducing a New Immigration System – Here’s What You Need to Know

Coronavirus and the Law in 2020

The global pandemic has definitely made 2020 an interesting year to say the least! 

Coronavirus Job Retention Scheme (CJRS):

Rishi Sunak announced on 20th March 2020, the introduction of the CJRS which aimed to help support employers in order to avoid the need to make mass redundancies as a result of the Covid-19 pandemic. 

The introduction of CJRS, allowed employers to furlough their employees and from 1st July 2020 could place employees on flexible furlough leave. 

It is important to note that the agreement to furlough or flexi-furlough your employees are documented. HMRC has also asked that employers keep all documentation relating to furlough (written agreement, how many hours the employee worked, the number of hours they were furloughed for etc.) for 5 years, as HMRC will retrospectively investigate the claims that employers have made under CJRS. 

The CJRS will end on 31st October 2020. However, note that from 1st August 2020, the government has begun to wind down the CJRS. Please note below the following changes to the government contributions from 1st September 2020, as follows:  

If you have any specific queries regarding CJRS, please do not hesitate to contact us. 

Statutory Sick Pay

From 13th March 2020, employees and workers must receive any SSP due to them from their first day of self-isolation if it’s because:

• They have Coronavirus.
• They have Coronavirus symptoms.
• Someone they live with has symptoms.
• They have been told to ‘shield’ by the NHS (there is no longer a requirement to shield in England from 1st August 2020).
• They have been told to self-isolate by a doctor or NHS 111.
• They have been told to self-isolate because they have been in contact with someone who may have Coronavirus symptoms (as a result of ‘test and trace’).

August 2020 Updates

Some employers can claim back up to 2 weeks’ SSP they’ve paid to anyone, please click here for more information on how to claim.

Please note, that employees and workers are not entitled to SSP if they’re self-isolating after entering or returning to the UK and do not need to self-isolate for any of the reasons listed above.

For example, if you’ve been notified by the NHS that you have come into contact with someone with Coronavirus and must self-isolate. From 28th May 2020, an employee is entitled to get SSP for every day you were self-isolating. 

An employee should self-isolate if someone in their ‘support bubble’ or their ‘extended household’ has symptoms. From 6th July, an employee will be entitled to SSP for every day they were self-isolating. However, if the person with symptoms tests negative for Coronavirus, their eligibility for SSP ends the day after.

Returning to Work

Due to lockdown, the UK government urged employers to allow employees to work from home where it was possible. In other situations, certain businesses such as pubs, restaurants, hotels etc. were required to close. 

Lockdown is now being eased meaning that employees can now start return to work, where they were once required to work from home or their place of work closed. 

Please be aware that the rules are different in England, Wales, Scotland and Northern Ireland. 

If you are a business in England, please click here for gov guidance and please do not hesitate to contact us if you require advice on what is expected of your business.

The Welsh government have stated that businesses in Wales should: 

• Take all reasonable measures to ensure that a distance of 2 meters between all persons is maintained on the premises.
• Ensure that other reasonable measures are taken to minimise risk of exposure to the virus, for example, by limiting close face-to-face interaction and improving hygiene (providing hand sanitiser etc.).
• Provide information to those entering or working at the premises about how to minimise risk.

In addition to this, the Welsh government has set out five steps for businesses to follow to ensure that the business works safely and lawfully, to find out more information on the five steps which have been set out, please click here.  

Employees Who Refuse to Return to Work

You should provide employees with at least one week notice of their expected return to work.

You will need to consult with your employee as to why they do not want to return to work, discuss what the company has done to be Covid-19 secure and discuss any other options to ease their worries about returning to work. 

Once you have consulted with the employee, they still refuse to return to work and you have implemented all reasonable steps to comply with the safety measures. An employer can potentially take disciplinary action against an employee for unauthorised absence. 

However, you should be careful when considering taking disciplinary action against an employee to ensure that you do not discriminate against individuals.  It is advisable to seek advice before commencing disciplinary proceedings to make sure you do not fall foul of the law. 

Carry Forward Leave

The government passed emergency legislation on 26th March 2020 relaxing the restriction on carrying over four weeks’ leave as a result of Coronavirus. The purpose of the legislation is to support key workers for example, nurses who were unable to take their annual leave during the leave year as a result of the pandemic. 

The amendment allows for the carry-over of any untaken leave (four weeks) where it was not reasonably practicable to take it in the leave year “as a result of the effects of the Coronavirus”. Carried over leave may be taken in the two leave years immediately following the leave year which it was due.  

Government guidance suggests that the following factors should be considered in terms of whether it is reasonably practicable to take the leave in the relevant leave year:

• Whether the business has faced a significant increase in demand due to COVID-19 that would reasonably require the worker to continue to be at work and cannot be met through alternative practical measures.
• The extent to which the business’ workforce is disrupted by COVID-19 and the practical options available to the business to provide temporary cover of essential activities.
• The health of the worker and how soon they need to take a period of rest and relaxation.
• The length of time remaining in the worker’s leave year.
• The extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the effects of COVID-19.
• The ability of the remainder of the available workforce to provide cover for the worker going on leave.

Please note that you can require employees to take annual leave under the Working Time Regulations, if required, please contact us for further information.

Redundancy

The government has brought into force new legislation as a result of the pandemic. The new legislation ensures that furloughed employees receive statutory redundancy pay based on their normal wages, rather than a reduced furlough rate. 

In addition to this, the changes will also apply to statutory notice pay and other entitlements. As a result, notice pay should be based on normal wages not their wages under CJRS. The changes will also ensure that basic awards for unfair dismissal cases are based on full pay rather than wages under the CJRS.  

The aim of the legislation is to protect workers and ensure all furloughed employees who are being made redundant receive their full entitlement. 

Business Secretary Alok Sharma said:

“We urge employers to do everything they can to avoid making redundancies, but where this is unavoidable it is important that employees receive the payments they are rightly entitled to.”

The new legislation came into force on Friday 31st July 2020.

If you require advice on the redundancy process, please contact us for further information. 

Job Retention Bonus

Rishi Sunak announced on 8th July 2020, that the government were introducing the Job Retention Bonus (JRB).

The JRB is a one-off payment to employers of 1,000 for every employee who they previously claimed for under the CJR, and who remains continuously employed through to 31st January 2021. 

Eligible employees must earn at least £520 a month on average between the 1st November 2020 and 31st January 2021. 

Employers will be able to claim the Job Retention Bonus after they have filled PAYE for January and payments will be made to employers from February 2021. 

At present, we have not been provided with the full guidance. However, we understand that this will be published by the end of September. 

We will send out further guidance once this information has been published.

BREXIT

Transition Period Ends

The UK left the European Union at 11pm on 31st January 2020. 

We are currently in a transition period, which keeps the UK bound to the EU’s rules. Until the transition period ends, most things will stay the same, for example:

• Travelling to and from the EU
• Freedom of movement
• UK-EU trade

The transition period provides the UK with some breathing space while new UK-EU negotiations take place. These talks will determine what the future relationship between the UK and EU will look like. 

The transition period is due to end on 31st December 2020, but may be extended for up to one or two years.

Immigration, Nationality and Asylum (EU Exit) Regulations 2019

On 1st January 2021, the existing working rights of EU citizens entering the UK will end. 

A modified version of the current ‘Points Based System’ that is now in place exclusively for non-EU workers will extend next year to anyone who is not British or Irish. Certain EU and non-EU nationals covered under the existing provisions will also be exempt.

If you have any queries in respect of how the UK Immigration Rules will affect you, please do not hesitate to contact us. 

A Reminder of Changes from April 2020

Termination Payments

Termination payments above £30,000 to be subject to employer’s national insurance (Class 1A NICs).

Written Statement of Terms

From 6th April 2020, you are required to provide all workers with their written statement of terms on or before the first day of employment. The written statement must include additional particulars of employment as follows:

• Days of the week the worker is required to work
• Whether the working hours may be variable
• How any variation to hours will be determined
• Any paid leave to which the worker is entitled
• Details all remuneration and benefits
• Any probationary period
• Any training entitlement provided by the employer, including whether any training is mandatory and/or must be paid for by the worker.

Information and Consultation

To request workplace discussions about topics such as redundancy proposals, currently a minimum of 10% of the workforce is required to agree. However, from 6th April 2020, this will be reduced to 2%, which could have an impact on smaller businesses (must have at least 15 employees).

Parental Bereavement Leave and Pay

Parental Bereavement Leave provides for at least two weeks’ leave for employees following the loss of a child under the age of 18 or stillbirth after 24 weeks of pregnancy.

The leave may be taken as a single block of two weeks or as a separate block of one week and may be taken at any time in the period of 56 weeks after the child’s death. 

Parent’s with at least 26 weeks’ continuous service with their employer and weekly average earnings over the lower earnings limit will also be entitled to Statutory Parental Bereavement Pay (SPBP). 

If an employee qualifies for SPBP they will be paid at the statutory rate of £151.20 per week or 90% of their salary, whichever is the lower. SPBP will be administered by employers in the way as existing family-related statutory payments.

The employee must inform you of:

1. The date of death
2. The date they choose the absence to begin
3. Whether they intend to take one or two weeks of bereavement leave

If the employee intends to take any week to be treated as bereavement leave in the first 56 days of the child’s death, they must notify the employer before they are due to start work or when reasonably practicable. 

If the employee intends to take any week to be treated as bereavement leave after the first 56 days of the child’s death, they must give the employer one weeks’ notice. 

IMPORTANT TO NOTE: an employee may not cancel any week of parental leave which has already commenced. 

Read more: What is the Parental Bereavement Leave Bill and What Change Will It Bring?

Agency Workers

As of 6th April 2020 Swedish Derogation provisions will be abolished. The regulation will provide that all agency workers will have a right to pay parity after 12 weeks. 

By no later than 30th April 2020, agencies must provide agency workers whose existing contracts contain a Swedish Derogation provision with a written statement advising that, the provision will no longer apply from April 2020. 

In addition to this, from 6th April 2020, all employment businesses will be required to provide agency workseekers with a Key Information Document containing prescribed information, including:

• Type of contract
• Minimum expected rate of pay
• How they will be paid and by whom
• Any deductions or fees
• Any non-monetary benefits they will be entitled to
• Any entitlement to annual leave and payment.

Holiday Pay 

The amendment will increase the reference period for determining an average week’s pay (for the purposes of calculating holiday pay) from 12 weeks to 52 weeks or the number of complete weeks for which the worker has been employed.

The aim of the government is to ensure that workers who do not have a regular pattern throughout the year are not disadvantage by having to take their holiday at a quiet time of the year when their weekly pay might be lower. 

Let Howells Solicitors Help

If you have questions about any of the points raised above, or any other aspect of the law, our friendly and knowledgeable team can help. Please get in touch to speak to our experts today.