A. Updates and reminders regarding the Coronavirus Job Retention Scheme (CJRS)
The Government extended the CJRS as part of the Spring Budget. New guidance has now been issued by the Government in respect of the extended CJRS for the period 1 May to 30 September 2021. Furthermore, a new Treasury Direction to cover this period has also been published. Whilst the extended CJRS is not significantly different from previous versions of the scheme, points to note in the new guidance and Treasury Direction include:
1. A change in eligibility requirements. For periods from 1 November 2020 to 30 April 2021, employers can claim a furlough payment from HMRC for employees who were employed on 30 October 2020, as long as they had made a PAYE RTI submission to HMRC between the 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee.
For periods starting on or after 1 May 2021, employers can claim for employees who were employed on 2 March 2021, as long as the employer has made a PAYE RTI submission to HMRC between 20 March 2020 and 2 March 2021, notifying a payment of earnings for that employee. Employers do not need to have previously claimed for an employee before the 2 March 2021 to claim for periods starting on or after 1 May 2021.
2. Guidance on reference dates. An employee’s reference salary for the purposes of calculating furlough pay will differ depending on when they started employment and previous furlough arrangements. New guidance on how to identify whether an employee’s relevant reference day is 19 March 2020, 30 October 2020 or 2 March 2021 is now available at the following link:
3. New requirements for calculation of furlough pay. The guidance includes changes to the calculation of furlough pay for employees with variable hours that are designed to take account of the fact that some employees may have been furloughed from March 2020 and to avoid this having an adverse impact on their furlough pay. Further details can be found at the following link, which also includes links to worked examples covering various scenarios and reference dates:
Any employer who is calculating furlough pay for periods from 1 May 2021 is strongly advised to review this update guidance.
4. Guidance on how to treat family related leave for furlough pay calculations. When using the “averaging method” to calculate average wages for employees with variable hours for claim periods starting on or after 1 May 2021, days spent on family-related statutory leave, statutory sick pay leave or reduced rate paid leave should not be taken into account. The exception to this rule is where an employee was on one of these types of leave throughout the entire period used to calculate their average wages. In this case, such days and related wages should be included.
5. New guidance on TUPE scenarios. In the event of a TUPE transfer, existing employers should ensure that information needed for future claims under the CJRS is passed on to the new employer (including an employee’s relevant reference day and details of 80% of the employee’s wages).
6. Confirmation of contribution rates. The level of contribution that HMRC will make to the pay of furloughed employees will begin to decrease in the coming months. The rates are as follows:
| May | June | July | August | September | |
| Government contribution: wages for hours not worked | 80% up to £2,500 | 80% up to £2,500 | 70% up to £2,187.50 | 60% up to £1,875 | 60% up to £1,875 |
| Employer contribution: employer National Insurance contributions and pension contributions | Yes | Yes | Yes | Yes | Yes |
| Employer contribution wages for hours not worked | No | No | 10% up to £312.50 | 20% up to £625 | 20% up to £625 |
| For hours not worked employee receives | 80% up to £2,500 per month | 80% up to £2,500 per month | 80% up to £2,500 per month | 80% up to £2,500 per month | 80% up to £2,500 per month |
B. Right to work checks – temporary measures to end
The Home Office has announced that the temporary COVID-19 adjusted right to work check measures will end on 20 June 2021.
The temporary changes, in place since 30 March 2020, have allowed right to work checks to be carried out over video calls and for job applicants and existing workers to send scanned documents or a photo of their documents to employers via email or a mobile app, rather than sending the originals.
From 21 June 2021, employers must once again either check the applicant’s original documents or check the applicant’s right to work online, if they have provided the employer with their share code.
When the temporary measures were implemented, employers were told that they would need to carry out follow-up checks on any employees who had a COVID-19 adjusted check within eight weeks of the temporary measures ending. However, the Home Office has now confirmed that retrospective checks will not be required. Employers will maintain a statutory defence against a civil penalty if the check undertaken was done in the prescribed manner or as set out in the COVID-19 adjusted checks guidance.
C. Calculating a week’s pay for furloughed employees
On 31 July 2020, the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 came into force, requiring employers to calculate various statutory payments, including redundancy and notice pay, with reference to a furloughed employee’s normal week’s pay rather than their furlough pay.
These regulations were amended in November 2020 and February 2021 to extend their duration to reflect subsequent extensions of the CJRS. On 20 April 2021, the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) (Amendment) (No 2) Regulations 2021 were made. They will come into force on 30 April 2021 and ensure that the Week’s Pay Regulations will continue to operate until 30 September 2021, reflecting the further extension of the CJRS announced in the March Budget.
D. Employment tribunals beginning to consider workplace issues related to pandemic
We are starting to see employment tribunal judgments from COVID-19-related cases that, while not binding, will likely be of interest to employer in relation to how the tribunal will approach such issues.
In Rodgers v Leeds Laser Cutting Ltd, an employment tribunal found that the dismissal of an employee who told his manager he would not return to work until after lockdown because he feared he would infect his children with COVID-19, was not automatically unfair.
The Claimant has brought his claim under sections 100(1)(d) and (e) of the Employment Rights Act 1996 (ERA 1996) which provide employees with protection from dismissal for exercising their rights to leave the workplace and take steps to protect themselves where they reasonably believe there is serious and imminent danger.
Mr Rodgers messaged his manager on 29 March 2020 to state that he would be staying away from his workplace “until the lockdown has eased” because he was worried about infecting his vulnerable children (a baby and a child with sickle-cell anaemia) with COVID-19. A month later, he was dismissed. Mr Rodgers did not have sufficient service to claim ordinary unfair dismissal. Instead, he alleged that he had been automatically unfairly dismissed for exercising his rights under sections 100(1) (d) and (e) of the ERA 1996.
The tribunal found that a reasonable belief in serious and imminent workplace danger had to be judged on what was known when the relevant acts took place. On the facts, such a belief could not be established, so sections 100(1) (d) and (e) were not engaged and the claim failed. In particular:
- Despite Mr Rodgers’ concern about COVID-19, he had breached self-isolation guidance to drive a friend to hospital on 30 March 2020 (the day after leaving work).
- Mr Rodgers’ message to his boss did not mention concerns about workplace danger and he could not show there had been any such danger. In March 2020, government safety guidance advised hand washing and social distancing. The employer had implemented both precautions.
- Mr Rodgers had not taken any steps to avert danger or raised concerns with his manager before absenting himself from work. This was not appropriate.
The tribunal rejected Mr Rodgers’ argument that COVID-19 created circumstances of serious and imminent workplace danger regardless of the employer’s safety precautions. It found that accepting this submission could lead to any employee being able to rely on sections 100(1)(d) and (e) to leave the workplace, simply by virtue of the pandemic.
This decision is not binding and turned on the specific facts. However, it demonstrates the importance of implementing appropriate COVID-19 secure measures. Employers who do so may reduce the risk of successful claims under sections 100(1)(d) and (e) by making it harder for employees to establish that the workplace is dangerous.
If you would like further guidance or advice on any of the issues raised in this note, please contact the Employment Department on https://taylorwalton.com/employment