A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
Most of the time being an employment lawyer is like being a marathon runner; you just keep going at a steady pace, stamina and consistently getting it right are essential. This last week, however, we have had our sprinting spikes on. Three different pieces of Government guidance, one confusing Treasury Direction and some conflicting Statutory Sick Pay (SSP) Regulations mean we are all having to respond very quickly to update people, knowing that the position may change again at any moment, most likely when we have all just finished work for the weekend.
For your reference, here are the key reference documents for this briefing;
- Government Guidance for Employers 20 April 2020
- Government Guidance for Employees 17 April 2020
- Amendments to Statutory Sick Pay Regulations 17 April 2020
- Treasury Direction 15 April 2020
In our briefing of 14 April, we confirmed that employees who are shielding in line with public health guidance could be furloughed. However, the SSP Regulations published on 17 April, together with the Treasury Direction of 15 April, cast doubt again on this issue. The regulations stated that shielding employees were deemed sick for the purposes of SSP and so should be paid under that scheme. The Treasury Direction stated that employees who were on SSP could not be furloughed but must continue with the SSP scheme until that was exhausted. Putting these two together (which we don’t think the Government have done) would mean the following; shielding employees cannot be furloughed until they have exhausted their SSP entitlement.
However, this conclusion is at odds with the Guidance both in force at the time and the latest Guidance published on 20 April. Again, we assume that given the speed with which these schemes are being put together there has been an error in the Direction and we await clarification. In the meantime, given the clarity of the Guidance on shielding, we would not advise any changes to current furlough arrangements for shielding employees.
The Treasury Direction’s curveball last week stating that employers must have employees’ consent in writing for any period of furlough created confusion, further exacerbated by the subsequent Guidance. The Guidance does not confirm that written consent is required by furloughing employees. It states that “to be eligible for the grant employers must confirm in writing to their employee confirming that they have been furloughed. If this is done in a way that is consistent with employment law, that consent is valid for the purpose of claiming the CJRS (Coronavirus Jon Retention Scheme)”.
Again, we need further clarity, and clearly, the best course of action is to have an employee’s signed furlough agreement on file. However, in the absence of such agreement, and as we await further clarity, written notification of a period of furlough to an employee (retained for five years) and the employee not attending work after that letter or notification has been received is likely to be sufficient for claiming reimbursement of wages under CJRS.
The silence on holiday pay has been broken at last by the employees’ Guidance (see above). It states that holiday can be taken whilst on furlough and this does not break the period of furlough. In accordance with the Working Time Regulations 1998, holiday pay should be paid at an employee’s normal rate of pay. Therefore, where employees are furloughed at 80% of pay, employers will need to pay the additional 20%. This additional amount cannot be claimed back under the CJRS.
It further notes that if employees work Bank Holidays, then this will be included in furlough pay. However, if Bank Holidays are usually taken as leave, then these days will need to be topped up to 100% or holiday given in lieu.
Rather ominously, however, the Guidance does note that this policy on holiday is being kept under review! You will, therefore, need to make clear to employees that the right to take holiday during furlough is going to be kept under review.
Extension of the CJRS
As was hoped, the Chancellor announced on Friday afternoon that the CJRS will now be extended to 30 June 2020. Employers will be able to claim for 80% of furloughed employees’ wages up until that date (provided they qualify for the scheme).
HMRC online claim service
This is now up and running as of 20 April 2020. Employers will need the Government Gateway user ID and password that they received when they registered for PAYE online.
Please note that this e-briefing relates to certain specifics of the Guidance and Direction only and is correct at the time of writing, 21 April 2020. It is not a substitute for legal advice on your specific circumstances. We expect further developments on the CJRS over coming days and weeks. For further advice about the CJRS, please contact Matthew Wort or your usual contact in our employment team.
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