| HR & EMPLOYMENT LAW
Jackie le Poidevin, Editor-in-Chief, HR Adviser |
How to Avoid the Pitfalls when Getting Workers’ Agreement to the Job Support Scheme
From 1 November, you can move furloughed staff – or even staff who have never previously been on furlough – onto the Job Support Scheme (JSS) Open. If your premises are forced to shut, you can put staff on the JSS Closed. Both schemes require you to get workers’ consent beforehand and HMRC has promised to provide guidance by the end of October on what to include in your JSS Open agreement. However, at the time of writing on 29 October, it still hadn’t published this. So, how should you go about getting workers’ agreement when we’re still missing this advice?
The Government’s factsheet says that to claim under JSS Open or Closed, you must ‘discuss’ your plans with your staff’ and ‘make any changes to their employment contract by written agreement’. Alternatively, you should reach a written collective agreement with a trade union.
The factsheet goes on to say that you must:
- Notify the employee of the agreement in writing.
- Make sure that the agreement is consistent with employment, equality and discrimination laws.
- Keep a written record of the agreement for 5 years.
- Make this agreement available to HMRC on request.
It then says that ‘the employee must agree to the new arrangement’. At this point, the factsheet no longer says the individual has to give written agreement. You seem to be able to get the employee’s verbal agreement and then simply ‘notify’ them in writing of the reduced hours or cessation of work (which, after lots of confusion, was the final position under the furlough scheme).
An Important Note About Dates
On JSS Open, it’s also important to note that the factsheet says, ‘Claims should commence from the later of the date that the employee starts working reduced hours or the date when working reduced hours is confirmed in writing, not when the decision is made.’ In other words, until you have something in writing (though we’re not entirely sure what that something should be), you can’t reduce the employee’s pay.
So What Should You Do?
My advice is:
1. Consult and Get Something in Writing Now
If you haven’t already done so, explain the scheme and your plans to staff. If you want to claim from 1 November, draw up something in writing (we’ll call it a notice but see next point) and distribute this immediately. If staff are willing and able to work but you don’t have the normal amount of work, or any work, available, you normally have to pay them full pay, unless they’re a casual or zero-hours worker.
So, if you want to switch staff seamlessly from furlough to JSS Closed or onto short-time working under JSS Open, they must receive their JSS notice by Sunday 1 November (or the first day of their normal working week if they wouldn’t work on that day).
Tip
If you may have to close at short notice if your area goes into Tier 3, or perhaps if there’s a new nationwide lockdown, explain the scheme upfront to employees, give them a draft notice to look at and ask them to make any objections known. Then you’ll be ready to issue a copy of the notice straight away if you do have to close.
2. Written Agreement is Best But…
Ideally, you’ll get staff to send you an email or reply slip clearly giving written consent to the temporary reduction in their hours. Otherwise, there’s a risk they might turn around, say they never agreed to the reduction and try to claim breach of contract or an unlawful deduction.
This seems a small risk when they’re getting most of their wages even when they’re not working and the alternative is losing their job altogether. If you want to claim from 1 November, you may feel you have no alternative except to issue a notice simply confirming that the changes the worker agreed to in your earlier discussions are coming into effect from that date.
If the person works the reduced hours (or no hours under JSS Closed) for some time without objecting, an employment tribunal is likely to find they gave their implied consent to the arrangement. But if you can get signed consent, this reduces the scope for a dispute and will give you peace of mind.
Tip
If you can’t get verbal or written agreement in time, you might ask furloughed staff to take unpaid leave or paid holiday, or extend their furlough at your own cost, while you finalise your JSS arrangements. Again, you’ll need their agreement (though you can force staff to take paid annual leave if you give them 2 days’ notice for each day of leave).
3. Reserve the Right to Make Changes
The Government has said it will review the JSS in January. We can assume it may make the scheme less generous at that point. Also, something unexpected may emerge when the detailed guidance comes out or your own needs may change. You should therefore reserve the right in your notice to:
- Change the number of hours the person works or the pay they receive if the terms of the scheme change.
- Require the person to work different hours or return to their normal contractual hours before the JSS ends depending on the needs of the business.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Level of Support Under the Job Support Scheme Increased
The Job Support Scheme replaces the Coronavirus Job Retention Scheme from 1 November 2020, and will run for 6 months until 30 April 2021. There are two strands to the scheme – one for business that are able to remain open but due to difficulties arising of the Covid-19 pandemic are operating at reduced demand, and one for businesses that are forced to close as a result of local or national lockdown restrictions.
The original scheme was set out by the Chancellor in his Winter Economy Plan on 24 September 2020. The scheme was subsequently expanded to provide a higher level of support for closed businesses, before being further enhanced to provide greater support to businesses that were able to remain open.
Original Scheme
It its original format, to benefit from scheme, an employee had to work at least one-third of their usual hours. The employer was required to pay the employee at their contracted rate for those hours, and also for one-third of the employee’s usual hours that are unworked. The employer could claim a grant from the Government for one-third of the unworked hours (capped at £697.92 per month) with which to top up the employee’s pay.
As originally conceived, the scheme would have been very costly for employers, and it is doubtful whether many struggling businesses would have been able to afford to pay employees for one-third of their unworked hours.
Enhanced Support for Open Businesses
In response to the evolving nature of the pandemic, on 22 October 2020, the Chancellor announced an increased in the level of support available under the Job Support Scheme for open businesses.
To qualify for a grant under the scheme, employees will now only need to work a minimum of 20% of their usual hours. The employer contribution is significantly reduced – under the revised scheme, employers will need to pay the employee for the hours that they work, but only for 5% of their unworked hours. The employer contribution in respect of unworked hours is capped at £125 per month.
The Government contribution is significantly increased, maintaining the amount that the employee receives under the scheme. Employers will now be able to claim a grant equivalent to 61.67% of the employee’s unworked hours. This will be paid at the employee’s usual rate, subject to a cap of £1,541.75 per month. The cap bites where the employee usually earns £3,125 per month or more.
The grant received must only be used to cover the cost of topping up the employee’s pay. The amount that the employee receives under the scheme depends on the proportion of their usual hours they work:
- An employee working only the minimum of 20% of their usual hours will receive 3% of their usual pay.
- An employee working one-third of their usual hours will receive 77.78% of their pay.
- An employee working 40% of their usual hours will receive 80% of their usual pay.
This is reduced where the cap applies.
As under the original scheme, the amount received by the employee is subject to tax and National Insurance. The employer must report the pay and deductions to HMRC via RTI. It is important that this is done, as the grant is paid in arrears and HMRC will check the amount claimed against the amount declared on the Full Payment Submission before paying the claim. Grants are paid monthly in arrears, meaning that the employer must still pay the employee before they receive the grant from the Government. The first claim can be made from 8 December 2020 (for November 2020). Claims must be made online.
The employer must meet the cost of the employer National Insurance contributions and the employer contributions due under auto-enrolment on the full amount paid to the employee.
Worked Example
Amy works in a bar. The city in which the bar is situated is subject to Tier 2 lockdown restrictions. As a result of reduced demand, Amy’s hours are reduced, such that she works two 4-hour shifts each week instead or her usual five 8-hour shifts. This means that she is working 8 hours a week, rather than her usual 40-hour week. As she is working 20% of her usual hours, she can benefit from the Job Support Scheme for open businesses. Her unworked hours are 80% of her usual hours.
Amy is usually paid £1,800 a month.
Her employer must pay her for the hours she works. This equates to £360 (20% of £1,800).
Her employer must also pay her for 5% of her usual hours that are unworked. This equates to £72 (£1,800 x 80% x 5%). As this is less than £125, the cap does not apply.
Her employer can claim a grant from the Government of 61.67% of her unworked hours. This equates to £888.05 (£1,800 x 80% x 61.67%). As this is less than £1,541.75, the cap does not apply.
Amy receives £1,320.05 before the deduction of tax and National Insurance. This is equivalent to 73.3% of her usual pay.
Ahead of the Prime Minister’s announcement, on Friday 9 October, the Chancellor set out an extension to the Job Support Scheme to help employees of businesses that are forced to close as a result of the new restrictions. The Job Support Scheme replaces the Coronavirus Job Retention Scheme (the furlough scheme) when it comes to an end on 31 October 2020. The Job Support Scheme will run for 6 months, from 1 November 2020 to 30 April 2020.
Nature of the Job Support Scheme
Under the Job Support Scheme, employers will be able to claim a grant to pay some of the wages of employees who are working fewer hours than normal. As long as the employee works at least one-third of their normal hours, the employer can claim a grant from the Government to pay the employee for one-third of their usual hours that they do no work.
The employer must pay the employee for the hours worked and also one-third of the unworked hours. Collectively, this ensures that the employee will receive at least 77% of their usual pay.
| HEALTH & SAFETY
Paul Smith, Editor-in-Chief, Health & Safety Adviser |
Employee has Covid: What to Say to Colleagues
Whether you call it a second spike, wave or surge, it’s clear that the pandemic is following the curve of the 1918 global Spanish flu outbreak, with an upturn in cases just when people were breathing a sigh of relief that initial numbers had reduced. Translate this to the workplace and our Ask the Experts Email Helpdesk has seen a rise in queries about how managers should respond to cases in their own workforce. Here, we point you in the right direction and highlight key traps to avoid.
A common scenario we are hearing from readers is that an employee has one or more of the three Covid-19 symptoms so then takes the three correct actions of staying away from work, self-isolating at home with his/her household and requesting a test.
But where does that leave the rest of the team who, up until the day before, were working closely with the colleague? Do they need to self-isolate and get tested? Even more confusing is the situation where an employee happens to have a test and then gets a positive result, even though they were asymptomatic (did not have symptoms). Emails then start flying; managers can find themselves under pressure to fill in the gaps in people’s knowledge and possibly reassure people about the extent to which they are at risk. So, what does the guidance actually say?
What the Guidance Means in Practice
- Anyone with symptoms should self-isolate and get a test. Household members should also self-isolate.
- Once the test result is known, the person (and their household) should follow directions from NHS Test and Trace.
- This will typically be ‘return to work’ (negative result, and the person is well) or ‘continue to self-isolate’ (positive result). With a positive result, NHS Test and Trace will ask for details of ‘close contacts’ so that these people can themselves be contacted and asked to self-isolate.
As a result, there is no action required by managers unless and until they are contacted by the Test and Trace service. Fellow team members and colleagues of the person should therefore:
- Continue to work normally, but
- Be vigilant for possible symptoms and
- If they get symptoms, follow the advice above.
Just as a reminder, the 3 key symptoms are (1) fever (raised temperature), (2) a new continuous cough and (3) changes to the sense of taste or smell.
If they themselves are told to self-isolate by NHS Test and Trace, they should do so; the same applies if their own household/bubble is self-isolating, perhaps because another family member has symptoms or is waiting for a test result.
Avoid the Pitfall of Disclosing Confidential Information
In these circumstances, it is extremely easy for managers to be drawn into disclosing confidential information, perhaps by email or even in team briefings. Often, this is driven by a well-meaning desire to reassure people and to respond to people’s concerns about their own health and the colleague’s wellbeing.
However, anything to do with an employee’s health must be treated as confidential, and the same applies by extension to any information you know about the colleague’s family members.
Don’t Speculate
Equally, it’s best to avoid offering reassurances that you are not in a position to give or speculating about the chances of test results being false. By the way, Covid tests (like all diagnostic tests) give both false positives and false negatives. As a result, some will be told they have Covid when they don’t (false positive); others that they don’t have Covid when they do (false negative).
We are therefore warning readers of the overriding principle that managers must not disclose any sensitive or confidential information about a colleague unless they have that person’s express consent. In practice, the simplest way to meet this requirement is not to disclose any confidential information at all.
We therefore recommend that your communications focus instead on:
- Reminding people of the situations in which they should avoid coming to work and self-isolate (even if self-isolating, it may well be possible for them to work at home).
- Asking them to continue to support your Covid-Secure precautions such as handwashing, social distancing and (where applicable) using screens and face coverings.