This week, we've heard that the government is paying the wages of 6.3 million workers (a quarter of the country's workforce) and the £8 billion cost is roughly the same as running the NHS. Helpfully, the Chancellor has stated that businesses will not face a cliff-edge at the end of June when the Coronavirus Job Retention Scheme (CJRS) is due to end. While we wait to see how the CJRS will be adapted to cater for a gradual return to work - an announcement is expected next week - there have been lots of other employment law developments which we report on here.

CJRS - guidance updated (again!) and checking for IT problems

HMRC has continued to tinker with its guidance on the CJRS, making changes on 30 April and 1 May. For those who are counting, we are now on version 9 of the employer guidance! The main changes in the last two updates are:

  • The guidance now states that employee and trade union representatives can undertake their activities for the purpose of individual and collective representation.
  • The relevant date for TUPE transfers and payroll consolidation has changed to 28 February 2020
  • A furlough period can be extended by any amount of time while an employee is on furlough
  • Family leave payments may need to be calculated differently if the leave started on or after 25 April (see our last article for details)
  • An employee who gets Maternity Allowance cannot get furlough pay at the same time so will need to give at least eight weeks' notice to terminate her maternity leave and will have to tell Jobcentre Plus to stop her Maternity Allowance if she agrees to be furloughed.

We have updated our FAQs in line with the latest guidance.

Helpfully, HMRC has set up a website where employers can check service availability and any IT issues before submitting a claim to the CJRS.

Employment tribunal (ET) hearings

The joint ET presidents have reviewed the direction they issued on 23 March concerning hearings listed up to and including 26 June. They have concluded that the direction should remain in force. This means that hearings listed on or after 29 June will remain in hearing lists and the ET will contact parties or their representatives to assess whether the hearing should be held in person or remotely. All in-person hearings due to start on or before 26 June are being converted to telephone case management hearings.

Going to a court or tribunal

HM Courts & Tribunals Service has published a guide for those who have been asked to attend a hearing in person at a court or tribunal during the pandemic. It explains that it has introduced social distancing measures and extra cleaning to protect court staff and users.

Avoiding discrimination during the pandemic

The Equality and Human Rights Commission has published some useful guidance on making non-discriminatory decisions in response to COVID-19 (eg in relation to furlough, sick pay and redundancy). It includes examples relevant to the pandemic to assist employers in making inclusive decisions and thereby avoid discrimination claims.

Grievance and disciplinary hearings during the pandemic

Acas has produced advice for employers and employees on disciplinary and grievance procedures during the pandemic. It includes a reminder that the law and the Acas Code of Practice still apply while social distancing and lockdown measures are in place. It points out that employers need to decide if it would be fair and reasonable to start or continue a disciplinary or grievance procedure while an employee is on furlough, following social distancing guidelines in the workplace or working from home.

A word of caution: some of the statements in the document relating to employees on furlough leave appear to contradict the HMRC guidance and Treasury direction that an employee cannot do any work for their employer while furloughed and must agree to cease all work for their employer. (For example, the advice states that an employee who is furloughed can chair a hearing or take notes at a hearing or during an investigation interview if they do it voluntarily.) We suggest that you take advice before involving a furloughed employee in an investigation or a disciplinary or grievance hearing.

Webinar: the impact of COVID-19 on employment and immigration law

We ran a very popular webinar on 5 May on the CJRS and the immigration and global mobility implications of COVID-19 in the UK and US. Our UK and US experts also answered delegates' questions on these topics. If you were unable to join us, you can watch a recording here (access password: Cgmr2CMm).