Since our last article on 9 April, the Coronavirus Job Retention Scheme has opened for claims, the HMRC guidance has been updated a number of times and there have been various other developments in relation to employment law and practice. We summarise the main changes here.

The Coronavirus Job Retention Scheme

The biggest development is that the online portal, which employers need to use to make a claim, went live on 20 April. According to HMRC, on the first day 185,000 employers submitted claims with a total value of £1.5 billion, and 1.3 million employees were reported as being furloughed. The portal includes an online calculator tool to enable employers to work out how much they can claim, which was updated on 22 April to cover more employment circumstances. Various accountancy firms have also developed tools to do the calculations. In order to make a claim, employers will need a Government Gateway ID and password and will need to be enrolled for PAYE online. Claims should be paid in around six working days. 

HMRC has warned that the scheme is a target for organised crime. Employers should therefore be very careful when making a claim that they are using the official HMRC portal.

The scheme has been extended until the end of June. HMRC amended its guidance on the scheme on 9, 15, 17 and 20 April. A Treasury direction, setting out the legal basis for the scheme and how it will be administered, was published on 15 April. There are too many changes to summarise here but we have updated our FAQs to take account of these developments.

In the first reported case under the scheme, the administrators of Carluccio's Ltd sought a ruling from the High Court as to how they could lawfully put employees on furlough. The Court held on 13 April that the scheme was available to the administrators of a company in administration if there was a reasonable likelihood of rehiring the workers, eg following a sale of the business. The Insolvency Act 1986 would be interpreted to give super priority to employees who had agreed to be furloughed, which meant that payments would be payable to them when the grant monies were received. The High Court also held that, because of the wording of the letter in this case, an employee's consent to a variation of their contract of employment for furlough purposes could not be inferred from their silence or lack of objection. This decision was given before the Treasury Direction was issued, which states that agreement to furlough must be obtained in writing. Case: In the Matter of Carluccio's Ltd (In Administration) [2020] EWHC 886 (Ch).

Employment tribunals and the Employment Appeal Tribunal

The Employment Appeal Tribunal (EAT) Rules 1993 have been temporarily amended with effect from 10 April so that a hearing before the EAT can be conducted by electronic communication (including by telephone) if it is just and equitable to do so and the parties and members of the public attending the hearing can hear what the EAT hears and see any witnesses seen by the EAT. An EAT user help guide sets out advice on how to lodge an appeal and what is happening to appeals at the moment:.

As from 16 April, the EAT has been holding remote hearings via telephone, Skype and other internet-based platforms in a limited number of appeals. Parties will be asked for their views but the judge will take the final decision. Where a remote hearing is not practicable, it will be postponed. If a case is postponed, it will be given priority for a new hearing date. Members of the public and the press will be able to attend remote hearings but the recording of proceedings will not be permitted.

The tribunals judiciary published a user help guide on 15 April, which covers the employment tribunals (ETs) in England and Wales, and Scotland. The key points are:

  • The majority of salaried employment judges are working from home
  • All contested full hearings up to 26 June have been postponed and have been converted to telephone case management hearings
  • Preliminary hearings and some final hearings are being conducted remotely
  • Greater reliance is being placed on active case management and alternative dispute resolution (such as judicial mediation and early judicial assessments).
  • Urgent hearings are being prioritised.

See here for details.

We understand that ET claims are still being served and, where possible, this is being done by email. Claimants are being encouraged to provide an email address for service, and larger employers are being encouraged to provide a central email address. Parties are being urged to co-operate with each other and to reduce the number of documents to what is needed for the hearing.

HMCTS has revised its guidance on telephone and video hearings during the coronavirus outbreak. The amended guidance is here.

Statutory sick pay

Statutory sick pay (SSP) was extended to those who are shielding or are extremely vulnerable from 16 April, and they are now treated as being incapable of work. This means that employees who are shielding can be paid SSP if they are not furloughed and cannot work from home.

On 17 April, the Government published updated guidance on how to reclaim SSP. This applies to employers with fewer than 250 employees as at 28 February 2020 and will give them a rebate covering two weeks' SSP for an employee who is unable to work because they have coronavirus, cannot work because they are self-isolating or are shielding in line with public health guidance. The online service to reclaim SSP is not available yet.