BRIDGE Legal Update – 11 November 2020

11 Nov BRIDGE Legal Update – 11 November 2020

BRIDGE Legal Update

11 November 2020

Here’s a summary of the key points for our clients and partners covering the following key areas of change last week: –

  • Regulations governing lockdown arrangements in England;
  • Coronavirus Job Retention Scheme (CJRS) extended to March 2021; and
  • New guidance for the Clinically Extremely Vulnerable in lockdown

More guidance is due imminently on the extension of the CJRS and we will update you once we have the guidance.

1.  Regulations governing lockdown for England

The Regulations require various sectors to close or scale back during the lockdown and others will suffer a severe reduction in demand. The rules set these sectors out.

The furlough scheme is extended (see below) until March and can be accessed by employers throughout the UK.

Under these new lockdown Regulations, we are not permitted to leave our homes ‘without reasonable excuse’ subject to a list of exemptions under the new regulations governing lockdown, a key exemption being:

‘where it is ‘reasonably necessary’ to do so and where it is ‘not reasonably possible’ to work from home’

In our view the wording is tougher than it was in previous guidance – which stated that those who could ‘work effectively’ from home must do so.

This narrowing of the rules means employers should most certainly consider very carefully which roles on a job role basis may lawfully attend the workplace and we advise some record of that is kept.

We advise this because a breach of these rules by employee or employer attracts a criminal sanction!

2. Coronavirus Job Retention Scheme extended to March 2021

As you will know the Chancellor has announced a further extension to the CJRS, until the end of March 2021.

The extension applies UK-wide and the Job Support Scheme – which was due to commence in November – remains postponed for now.

Here are some key issues for employers on the extension of the CJRS:

  • Employers still have flexibility to use the CJRS for eligible employees for any time or shift pattern.
  • Employees will continue to receive 80% of their usual wages, up to the cap of £2,500 per month (pro-rated to the hours NOT worked).
  • Employers will only be required to pay NI and employer pension contributions – on average this is around 5% of earnings.
  • The Government will review the CJRS again in January 2021 and consider whether or not the economy has improved thus, allowing them to reduce the support. We presume more regular reviews may be forthcoming as the pandemic evolves up to March 2021.
  • Neither the employee nor the employer needs to have previously used the CJRS to make a claim now.
  • Employers can claim for employees who were employed and on PAYE on 30 October 2020.
  • Employers must have made a PAYE RTI – Real Time Information submission to HMRC between 20 March 2020 and 30 October 2020 – notifying payment of earnings.
  • Employees who were employed on payroll on 23 September 2020 and were made redundant or ceased working after can now be re-employed and claim under the extended scheme.
  • The employer must have made an RTI submission to HMRC from 20 March 2020 to 23 September 2020, notifying a payment of earnings for those employees.
  • For employees who meet all eligibility criteria – and were furloughed before – employers must use the same calculations from the scheme previously for calculating ‘reference pay’ and ‘usual hours’.
  • It is also worth noting that the Government have made clear that HMRC will:
    • publish details of those employers that make claims from December onwards;
    • full details of how they will do that shall be set out within the more detailed guidance which is imminent – we will update you when we know more.
  • The Job Retention Bonus will not be paid in February 2021 but a ‘retention incentive’ may be used later – again, we will update you on that too as soon as we can.
  • The Government have also confirmed that employers may:
    • furlough employees who aren’t able to work because they are shielding, in line with public health guidance (see below); or
    • have caring responsibilities due to coronavirus (that does include employees that need to look after children too).
  • A flexible furlough agreement that qualified / was made retrospectively with effect from 1 November will be valid – but it must be in place by 13 November 2020 – please seek our guidance on this if you are unsure, agreements do need to be in place.
  • We have been advising many employers on the CJRS. If we can help your organisation, please do not hesitate to get in touch.
  • Finally, on this section, HMRC have made clear that employees who were on the payroll on 23 September 2020 – albeit who were made redundant or who had ceased working will still qualify for the scheme – if the employer decides to re-employ them.

Please do note that re-employing may affect continuity of employment and other legal rights and each case should be assessed carefully.

3. Updated guidance for Clinically Extremely Vulnerable

Those that are clinically extremely vulnerable were advised in the recent lockdown announcement to stay away from work – even in cases where they could not work from home. The guidance makes clear that during this lockdown (up to 2/12/2020):

‘You are strongly advised to work from home. If you cannot work from home, you should not attend work for this period of restrictions.’

Interestingly the updated guidance has made clear that that those living with a clinically extremely vulnerable person should continue to go to work – of course if it is the case that they can’t work from home.

The updated guidance for the clinically extremely vulnerable also confirms as follows:

  • if they meet the eligibility criteria;
  • then they may be furloughed; or
  • they may be entitled to SSP where eligible.

All guidance referred to is available on the Government website