It has been another busy week for employment lawyers and HR professionals, as we get to grips with a new way of working and the seemingly endless queries arising from the furlough scheme. There have been a number of developments in relation to employment law and practice, which we summarise here.
In our bulletin of 2 April, we said that it was not clear how the furlough scheme applied to sponsored workers because of the requirement to pay a defined minimum salary. The UKVI has now published advice for Tier 2, 4 and 5 sponsors, which states that if an employer cannot pay the salaries of sponsored employees because it has temporarily reduced or ceased trading, it can temporarily reduce the pay of sponsored employees to 80% of their salary or £2,500 per month, whichever is less.
It also provides that any reductions have to be part of a company-wide policy to avoid redundancies and all employees must be treated the same. It is not clear what this means but the employer should not furlough sponsored workers only, as this could lead to allegations of discrimination. The reductions have to be temporary and the employee's pay must return to the previous level when these arrangements have ended. More here.
When HMRC updated its guidance on the furlough scheme last weekend (see below), it specified that foreign nationals are eligible to be furloughed.
At the end of last week, the Presidents of the Employment Tribunals (ETs) in England and Wales and Scotland jointly issued a set of FAQs arising from the COVID-19 pandemic. They cover various topics, such as:
- converting hearings to telephone case management discussions (CMDs)
- complying with orders and directions
- judicial mediation
- time limits
- technology and etiquette in video hearings
- what to do if you are concerned that your organisation will miss an ET1 claim form sent by post to the usual address.
The document explains that ETs are currently prioritising a limited range of applications, such as for interim relief in whistleblowing cases and dismissals where an individual has lost accommodation tied to their employment. You can read the document here.
We are finding that CMDs are being used to relist cases for final hearings, and some ETs are struggling for judges so telephone CMDs are being cancelled at short notice.
Anecdotally, we are hearing that judges at CMDs are focussing on whether the case has been prepared for a final hearing, when the parties are available for a final hearing, whether a final hearing could be conducted virtually, and whether the case could be resolved in the meantime by judicial mediation.
Following a temporary closure, London Central employment tribunal is due to re-open for remote hearings on 14 April, which will be limited to CMDs and judicial mediations.
HMRC guidance on reclaiming SSP
HMRC has published guidance for employers on claiming back payments of statutory sick pay made in connection with COVID-19. The rebate scheme applies to employers with fewer than 250 employees as at 28 February, who can claim back up to two weeks' SSP paid to an employee who is unable to work due to COVID-19 or who is self-isolating at home. It applies to periods of sickness starting on or after 13 March 2020. Employers will be able to make online claims when the system has been set up. More information is here.
Updated guidance on the Coronavirus Job Retention Scheme
With the Resolution Foundation estimating that at least one third of all private sector employees could be furloughed at a cost of up to £40 billion, it is not surprising that there has been a great deal of interest in the furlough scheme and that it has prompted lots of questions. On 4 April, HMRC updated its guidance on the scheme. Although it helpfully filled in a lot of the gaps that were in the original guidance issued on 26 March, it still does not address some of the areas where we have received the most queries, such as holidays.
The amended guidance makes it clear that employees who have been dismissed for any reason since 28 February can be rehired and furloughed and that an employee can start a new job while furloughed, as long as the contract allows this. It sets out in more detail the individuals who can be furloughed, who now include workers, directors and members of LLPs, as long as they are paid via payroll.
We have updated our FAQs to take account of the new guidance.
STOP PRESS: the HMRC portal will be launched on 20 April so employers will be able to start making claims then. The first reimbursements are expected to be made on 30 April.
The Government has produced updated guidance on coronavirus and apprenticeships. It confirms that apprentices on furlough can continue their training as long as it does not provide services to or generate revenue for their employer. Training should take place remotely or via e-learning where possible and assessment should be done remotely, with assessments postponed where necessary. Breaks in learning will be permitted and where apprentices are made redundant, steps will be taken to find them alternative employment within 12 weeks so that they continue their apprenticeship. The document confirms that the apprenticeship levy will still have to be paid by employers during the pandemic.