Flexibility: Furlough & Beyond - DMH Stallard

Employment Law Webinar

Flexibility: Furlough &
Beyond

Content   01

          02
               Furlough After 30 June 2020

               Flexible Working Requests

          03   Flexible Contract Terms

Furlough After 30 June 2020
Stephen ten Hove

4   Employment Law Webinar

    CJRS after 1 July: Sources
     Statement by Chancellor of the Exchequer: 29 May 2020

     HMRC Guidance: 12 June 2020

     Treasury Direction to HMRC: 25 June 2020

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    CJRS: Which employers can
    claim from 1 July 2020?
    The criteria for eligible employers remain the same:

     You cannot maintain your workforce because your
        operations have been affected by coronavirus?

     If so, you may furlough employees and apply for a grant
        provided you record them as being on furlough

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    Time limits to claim
     You will not be able to make claims for July until 1 July
        2020

     Note: 31 July 2020 is the last day to submit claims for
        furlough grants for periods ending on or before 30 June
        2020

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    Which employees qualify for
    furlough payments?
     The definition of “employee” for the purpose of furlough
        from 1 July is unchanged

     But: you can only claim a grant in respect of employees for
        whom you have previously received a grant payment

     That is: those previously furloughed for at least three
        consecutive weeks between 1 March and 30 June 2020.
        Last day 10 June 2020

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    Which employees qualify for
    furlough payments? (2)
     Finally, the maximum number of employees you may claim
      for after 1 July 2020 cannot exceed the maximum claimed
      for before 1 July

     Exceptions:

     Employees returning from statutory parental leave or a
      returning military reservist

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    The definition of “work” and
    TUPE
     The definition of “work” remains the same

     Provisions as to TUPE remain the same

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     Previous poll results
      Are you planning to have employees both working part
         time and on furlough part time?

Are you planning to have
employees both working
part time and on furlough
part time?
Poll

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     What changes from 1 July
     2020?
      You will be able to “flexibly furlough” employees

      You can claim the grant for the hours your flexibly
         furloughed employees do not work when compared to the
         hours they would normally have worked during the relevant
         period

      From 1 August the level of the grant available will be slowly
         reduced as follows:

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     What changes from 1 July
     2020? (2)
      In August 2020: employers will have to pay employer NIC
          and pension contribution on furlough payments

      In September 2020: employers will pay what they paid in
         August plus 10% of employee furlough cost. Furlough
         grant capped at £2,187.50

      In October 2020: as September, but the employer
         contribution to furlough is 20% so furlough pay capped at
         £1,875.00

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     Record keeping
      You must keep a copy of all records for six years including:
               Your agreement about terms of furlough with your
                employees
             The amount claimed and claim period for each
              employee
             The claim reference number for your records
             Your calculations in case HMRC wish to see them
             Usual hours worked for employees on furlough
             Actual hours worked for employees you flexibly
              furloughed during period of claim

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     Working out the claim
      The maximum grant is £2,500 per month or £576.92 a
         week. If you claim for periods that are not one month or
         one week you will need to calculate a daily wage amount
         for each employee and then work out the number of
         calendar days during each month the employee is
         furloughed

      In July, August and October daily rate: max. of £80.65 in
         September: a max. of £83.34

      In September and October this is the max. amount you will
         have to pay a furloughed employee but the grant you can
         claim from HMRC will be lower

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     Working out the claim (2)
      From 1 July onwards you cannot make a furlough claim
         that covers more than one calendar month

      Fixed pay is easier. Variable pay? Compare with same
         calendar period in 2019/2020 tax period or average wages
         tax year 2019/2020 or, if neither, average over remainder
         of tax year

      HMRC will be “reasonable” so long as grant applications
         are honest and supported by documents. It also promises
         to update its Guidance with fresh calculation scenarios

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     Working out the claim (3)
      Recommend HMRC’s Guidance and not the Treasury
         Direction

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     After October 2020?
      The Treasury Direction does not definitively say that the
         CJRS will end on 31 October 2020

Flexible Working Requests
Adam Williams

Do you anticipate an
increase in flexible working
requests over the next year?
Poll

21   Employment Law Webinar

     Flexible working requests
      Extent of the statutory right

      Handling a request

      Rejections and challenges

      What lies beneath?

      Surfing the wave

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     Extent of the statutory right
      Eligible employees (service/status), have right to:

             make a request for a change to their terms of
              employment governing how and when they work

             have that request dealt with in a “reasonable manner”
              and

             only have their request refused for a prescribed
              business reason (s. 80G(1)(b)) and on correct facts

      Ineligible employees can make an informal request

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     Handling a request
     Request must

     Be dated, in writing, and state that it is made under
     s.80F ERA
                                                              Reason for request?
     Set out change requested and intended start date
                                                              ACAS Code
     Explain what effect, if any, it is perceived as having      Discuss
     on employer and how this might be addressed and
                                                                 Deliberate over
     Confirm whether a previous request has been                 Deal
     made and, if so, when
                                                                 (without) Delay

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     Rejections and challenges
      Rejection must be based on genuine belief that a valid
         ground for refusal applied
      Fairness and reasonableness not relevant, but assessment
         of factual basis for belief is
      Consistency?
      Appeals?

      Claims
             Typically within three months of outcome
             Financial value is limited (

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     What lies beneath?
      Beneath the surface of any request for flexible working
         (formal or informal) might be
             a discrimination complaint and/or
             a resignation and constructive dismissal claim

      Indirect sex; religion/belief; disability; part time/fixed term
      Suddenly, ET is able to scrutinise the motive and
         legitimacy of the employer’s judgement/outcome
      Objective justification (PMALA)
      Discriminatory, or seriously flawed, decision making
         process could be a fundamental breach entitling employee
         to resign
      ‘RORR’ test, for fairness of ‘dismissal’

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     Surfing the wave
      Build robust processes
             Who will handle?
             Will there be a moderator?
             What’s the order of dealing/priority (reason, date of
              receipt etc.?

        Reasons (will you insist, or would you rather not know)?
        More time or trial as a modified acceptance (uncertainty)?
        Impact of previous requests on subsequent
        Rejections – ‘sub-optimal’ rather than unworkable?
        Identify now/in advance relevant challenges that might
         apply to request from different parts of business, and
         (accurate) factual basis. Update in light of requests granted

How important is the
engagement and knowledge
of line management in
dealing with FWRs
effectively?
Poll

Flexible Contract Terms
Will Walsh

Do your employment
contracts contain the right to
lay off employees?
Poll

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     Increasing flexibility in
     contracts
      Mobility clauses

      Home working

      Role flexibility

      Flexibility on hours and shifts

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     Cost saving measures
      Lay-off and short-time working

      Right to insist that holiday is taken at specified times

      Pay in lieu of notice

      Company sick pay

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     Lay-off and short-time
      Lay-off means no pay where no work to offer
      Short-time means less than half pay because reduced
         work
      Statutory Guarantee Payment for non-working days
      Right to claim redundancy payment
             Two years of service needed
             Lay-off/short-time for four consecutive weeks or six
              weeks in 13 week period
             Employee gives notice of intention
             Can contest if reasonably expect resumption within
              four weeks
             Employment Tribunal determines disputes

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     Making contract changes
      Phase over time

      Consent

      Termination and re-engagement

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     Speakers

     Stephen ten Hove               Will Walsh                   Adam Williams
     Partner, Employment            Partner, Employment          Partner, Employment
     0207 822 1518                  01293 558540                 01483 467413
     Stephen.tenHove@dmhstallard.   Will.Walsh@dmhstallard.com   Adam.Williams@dmhstallard.
     com                                                         com