The Government announced on 31 October 2020 that the Coronavirus Job Retention Scheme (CJRS) also known as the ‘furlough scheme’, would be extended until 2 December 2020. The Job Support Scheme (JSS) which had intended to replace the CJRS has now been postponed.
It is expected that the JSS will replace the CJRS when it closes on 2 December 2020, subject to any further extension, and will be divided into two parts called JSS Open for those businesses that can continue trading and JSS Closed for businesses required to close.
Many businesses in the sectors worst hit by restrictions, especially those in entertainment, sport, arts and hospitality, will be relieved by the announcement to extend the furlough scheme. For many employees who have already been made redundant, the announcement will offer little consolation.
There is no requirement for employees to have been furloughed previously, but the Government confirmed that employees must have been on the payroll before midnight on 30 October 2020. HMRC confirmed on 2 November 2020 that if employees were on an employer’s payroll on 23 September 2020 (i.e. notified to HMRC on an RTI submission on or before 23 September) and were made redundant, they can also qualify for the scheme if the employer re-employs them.
It would be reasonable for employers to consider the option of furloughing employees now the scheme has extended as an alternative to redundancy until the scheme ends. However, there is no legal obligation on an employer to furlough its employees at risk of redundancy or to reinstate employees who have already been dismissed.
The main points of the CJRS extension are:
• The Government will pay up to 80% of their current salary for hours not worked, up to a maximum of £2,500
• Employers will have to cover the cost of the furloughed employee’s pension and National Insurance contributions
• The scheme is open to all types of businesses small or large, charitable or non-profit
• Employers have the flexibility to bring furloughed employees back to work on a part time basis or furlough them full time
• Employees can be on any type of contract e.g. casual employees
• When claiming the CJRS grant for furloughed hours, employers will need to report and claim a minimum of 7 consecutive calendar daysThe announcement to extend the furlough scheme came hours before the CRJS was due to end and on the same day as new national restrictions for England were announced to take effect from Thursday, 5 November 2020.
The new lockdown guidance for England advises that those over 60 or in the category of ‘clinically vulnerable’ (over 70 or with an underlying health condition) should minimise contact with others. It is important for employers to review and update risk assessments and to consult with employees who cannot effectively work from home. It is unclear what effectively work from home means. Employers are advised to consider carefully whether employees can come to work, taking into account the health, safety and wellbeing risks of attending the workplace and working from home and to keep adequate records.
The latest guidance advises those in the ‘clinically extremely vulnerable’ category (people with specific serious health conditions) to work from home and if advised not to go to work they may be eligible for Statutory Sick Pay (SSP) or Employee Support Allowance.
Employers should be extra careful with vulnerable workers to update risks assessments to take account of any new relevant circumstances and to consult with employees in the event it is not possible for them to work remotely. Failure to do so may increase the risk of health and safety, discrimination and whistleblowing claims.
It is worth noting that no overall ban on attending work where individuals cannot effectively work from home has been imposed, save where businesses have been ordered to close which includes non-essential retail, leisure activities, entertainment venues and personal care facilities. Further and more detailed legislation is expected this week, and therefore the rules relating to attending work may be amended or clarified in due course.
For further information, please contact Partner Sarah Chilton.
