Second lockdown in England: HR implications

In a response to the financial implications of the Covid-19 pandemic, the government implemented a number of financial support packages including the Coronavirus Job Retention Scheme (CJRS).

The CJRS was implemented in March 2020, originally paying 80% of furloughed employees wages up to a cap of £2,500. Employees would not work for the period that they were furloughed.

The CJRS was due to close on 31 October 2020, to be replaced by a new initiative, the Job Support Scheme (JSS). However, following the Prime Minister’s announcement on 31 October 2020 that England must enter into a second national lockdown, the extension of the CJRS was also announced.

Additionally, the Prime Minister’s announcement impacts on advice on working from home.

CJRS

Timing

• The CJRS which was due to have closed on 31 October 2020, has now been extended until December. No specific date in December has been provided, but we presume it will close when the lockdown ends. Currently, the second national lockdown in England is scheduled to end on 2 December 2020.
• The JSS was due to commence on 1 November 2020 but has been postponed to avoid the two schemes operating simultaneously.The JSS will start when the extended CJRS closes.
• Although the lockdown announced on 31 October 2020 is not due to start until 5 November 2020, the government has said that there will be no gap in eligibility for support between the previously announced end-date of CJRS and this extension. Therefore, presumably the funding under the extended scheme will be available from 1 November 2020, before lockdown starts.We await updated government guidance relating to the same.
• It seems that the extended CJRS will be available across the whole of the UK, even though the lockdown only applies to England. Again, this will be determined by updated government guidance on the matter. Further information and guidance has been promised shortly.

Terms

• The extended CJRS will operate on the same terms as the original CJRS, as it operated in August 2020. The government’s contribution will revert to August 2020 rates i.e. 80% of wages, up to £2,500, with employers meeting the cost of National Insurance Contributions and pension costs for unworked hours. This means that employer costs will be approximately 5% per employee.
• The reversion to August rates means that the extended CJRS is more generous than the JSS.
• Flexible furlough will be allowed in addition to full-time furloughing.
• Employers will have to meet the cost of hours worked, as normal.
• Eligibility for extended furlough has been widened: employees must be on an employer’s PAYE payroll by 23:59 on 30 October 2020 in order to qualify for the scheme. This means a Real Time Information submission notifying payment for that employee to HMRC must have been made on or before 30 October 2020.
• It seems that there is no requirement that employees must have previously qualified for the scheme or been furloughed for a minimum of three weeks.
• As with the original CJRS, employers will have the option to top up furlough wages to full pay.
•  According to an HMRC Bulletin (available here) it will be possible to re-employ people who have been redundant and place them on the furlough scheme, provided they were on payroll on 23 September 2020.

Comment

While we await further government guidance, many employers will have issued notice of redundancy, in anticipation of the CJRS closing. Agreement with employees will, therefore, need to be urgently sought if employers intend to rescind notice of redundancy and move employees onto furlough instead.

Employees will need to be issued with urgent updates on the position, confirming that any agreement to transfer onto JSS arrangements cannot now go ahead and employees will either be asked to

• extend their existing furlough arrangements, or
• start a new period of furlough.

As at the start of the CJRS, employee agreement will be needed if an employee’s employment is not already covered by furlough arrangements. Please do contact me, or your usual TLT contact, if you require assistance with drafting a new furlough agreement or if you original furlough arrangements need updating.

Workplace attendance

Homeworking

In September 2020, the government guidance changed, so that those who could work “effectively” from home were required to do so. That advice has not, strictly speaking, changed following the announcement on 31 October 2020. However, it seems that there has been a shift in emphasis, as the guidance states that workers should only travel to work if they cannot work from home – for example, if they work in construction or manufacturing.

It seems likely that employers must now permit homeworking, despite holding any views that it is not as effective as working in the office.

Clinically vulnerable and clinically extremely vulnerable workers

Clinically vulnerable people are advised to be extra careful to follow the rules and ensure that frequently touched areas in their workspaces are cleaned.

Those who are defined as clinically extremely vulnerable to the virus, i.e. people with serious health conditions, are advised to work from home. If such employees cannot work from home, the government has advised that they do not attend work. These employees may be eligible for Statutory Sick Pay or Employment Support Allowance. Comprehensive government guidance on the matter is expected imminently.

Comment

Employers must give serious consideration to whether tasks can be fulfilled at home and if there is an absolute necessity for employees to attend the workplace. Employers should be particularly mindful of whether clinically vulnerable or clinically extremely vulnerable employees may be classed as disabled.  If they are, reasonable adjustments should be considered to facilitate the employee’s working environment at home.

The government’s guidance on the new national restrictions is available here and a press release on the furlough scheme extension is here. Further updates and guidance are expected imminently. We will keep you updated via these Briefings and our dedicated Employment Law Twitter feed @TLT_Employment

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at 3 November 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.