On 1 December 2020 the Court of Appeal handed down judgment in Pimlett v Curo Places Limited EWCA Civ 1621 where prior judgments in the First-tier Tribunal and the Upper Tribunal were overturned.
If it wasn't for the bare trees outside my window and the threat of a "cold spell" later this week, we could almost imagine we were back in late spring and the crisis days of lockdown 1.0; government guidance is coming thick and fast with much of it hitting our screens late on a Friday, Treasury Directions are read avidly for glaring contradictions and news of the PM's health is shared from Downing Street.
Following Katherine's "heads up" in the ebrief, the Government has now confirmed that for claim periods post 1 December, employers will not be able to claim for employees who are serving their notice; either statutory or contractual. This includes employees who have resigned as well as any who are made redundant. We suspected this was coming down the track but it is now confirmed. This marks a change from the previous scheme and reiterates the Government's desire to keep as many people as they can on PAYE for as long as they can.
The change that has been made to the TUPE provisions is one of those that is small in syntax but hugely significant for those affected. The original guidance of 10 November appeared to suggest that employees who had transferred under TUPE after 1 September could not be furloughed by their new employer. This would rather negate the purpose of TUPE to protect the rights of the transferring employees. However, the guidance change on 12 November rectified this. It now states that "employees being claimed for should have been employed by their prior employer on or before 30 October 2020 and; transferred from them their old employer to their new employer on or after 1 September 2020; employed by either their old employer or new employer on 30 October 2020; and on a PAYE Real Time Information (RTI) submission to HMRC, by their old or new employer between 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee".
We have further clarification regards employees returning from maternity leave early in order to be furloughed. Earlier last week, the guidance gave no mention of agreeing to reduce the eight week notice period for early returners who prefer to be put on furlough at 80% salary rather than SMP. The 13 November guidance clarifies that an earlier notice period can be agreed and an employee can return and be placed on furlough according to that newly agreed date. Again a specific point but none the less key for those it affects.
The naming game
We knew from last week’s preliminary guidance that HMRC would be publishing employers who claimed under the CJRS. The Treasury Direction, dated 12 November, has now given more detail of what will be published. HMRC will publish not only the name of the employer who has claimed but also the amount claimed. This only applies to the December 2020 and January 2021 claim periods at present. The intention is presumably to sniff out fraudulent claims but it may impact some employers’ willingness to claim in genuine circumstances. If it carries on in February and March 2021, we can assume that the Government thought it worth that risk.
As always, we are only several emails away from new government updates and this update is correct at time of writing on 16 November.
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Please contact Libby Hubbard if you require any further information.
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Following Katherine's "heads up" last week, the Government has now confirmed that for claim periods post 1 December, employers will not be able to claim for employees who are serving their notice
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