Flexibility: Furlough & Beyond - DMH Stallard
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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 20205 Employment Law Webinar
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 furlough6 Employment Law Webinar
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
20207 Employment Law Webinar
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 20208 Employment Law Webinar
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 reservist9 Employment Law Webinar
The definition of “work” and
TUPE
The definition of “work” remains the same
Provisions as to TUPE remain the same10 Employment Law Webinar
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
12 Employment Law Webinar
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:13 Employment Law Webinar
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
£1,875.0014 Employment Law Webinar
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 claim15 Employment Law Webinar
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 lower16 Employment Law Webinar
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 scenarios17 Employment Law Webinar
Working out the claim (3)
Recommend HMRC’s Guidance and not the Treasury
Direction18 Employment Law Webinar
After October 2020?
The Treasury Direction does not definitively say that the
CJRS will end on 31 October 2020Flexible 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 wave22 Employment Law Webinar
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 request23 Employment Law Webinar
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) Delay24 Employment Law Webinar
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 (25 Employment Law Webinar
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’26 Employment Law Webinar
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 grantedHow 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
30 Employment Law Webinar
Increasing flexibility in
contracts
Mobility clauses
Home working
Role flexibility
Flexibility on hours and shifts31 Employment Law Webinar
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 pay32 Employment Law Webinar
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 disputes33 Employment Law Webinar
Making contract changes
Phase over time
Consent
Termination and re-engagement34 Employment Law Webinar
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 comYou can also read