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National Lockdown 2021 – What impact will it have on staffing arrangements?

Reasons to choose Wilson Browne

On the back of the PM’s announcement of a third national lockdown, many businesses will be identifying what they can and cannot do and the impact this has on their staffing arrangements.

Happily, unlike the first national lockdown, many businesses will be able to continue. However, in order to do so safely, they will each need to undertake an assessment of their working practices against the current guidelines on ensuring their operations are Covid-19 Secure. This may see the introduction of additional safety measures they ask of their staff.

Additionally, there are likely to be a number of staffing challenges brought about by the new lockdown. A key challenge is likely to be for those with employees who are parents of children. Given the announcement that home learning will be applicable for the vast majority of school age children until well into February 2021, this will re-introduce the juggling difficulties experienced last year when schools were closed to all but the children of key workers.

Below we have collated FAQs on those matters we have most frequently advised on.

Where can I find up to date guidance for making sure my business is Coid-19 Secure?

There is a lot of useful guidance available to businesses which has been issued by the Government and ACAS. However, it can sometimes be difficult working out where to start so below are some links to help with this:

Government guidance

ACAS guidance

What additional matters should I be aware of in respect of pregnant workers?

Businesses must not discriminate against those workers who are pregnant, on/returning from maternity leave or breastfeeding. In compliance with legal obligations, key matters for businesses to be aware of include:

  • All businesses with pregnant workers and/or new and breastfeeding mothers must undertake a risk assessment in their workplace. Those assessments must now include additional considerations which are Covid-19 relevant such as the ability to socially distance in accordance with current requirements. The assessment will need to take account of how the woman travels to work – those who rely on public transport will pose additional questions for businesses.
  • Consideration must be given to whether reasonable adjustments could and should be implemented.
  • A careful approach must be taken when considering either furloughing or making redundant a member of staff who is pregnant and/or on maternity leave.

Can I furlough someone under the CJRS for the first time now?

The current Treasury Direction on furloughing staff is the Fifth Treasury Direction which can be accessed here

There is no express requirement in the Treasury Direction that a business can only furlough those staff members who have been previously furloughed. This means that, up to 31 January 2021, a business can furlough, for the first time, an employee provided they are a “qualifying employee”. New Directions are to be published covering the furlough leave arrangements for February and March 2021.

What about working parents?

Employees have a statutory right to time off for dependants. This is a right to unpaid leave and can be utilised to deal with emergencies – such as taking time to arrange contingency childcare arrangements when the schools have closed or a child is otherwise unable to attend school. However, this right is generally limited to one or two days and certainly not designed to cover the time it’s anticipated schools will remain closed during this third lockdown.

There are other types of statutory leave which may also be available to employees who are unable to work due to childcare obligations arising from the national school closure such as parental leave; additionally, employees may have a contractual right to paid or unpaid leave in this instance. Alternatively, employees may make an application to vary their hours to enable them to juggle both childcare and work. Any application for leave (statutory or contractual) or for a change to hours should be dealt with carefully to ensure there is no contravention of anti-discrimination laws.

Another option for employers may be the CJRS; in November 2020, the government guidance was updated to confirm that employees unable to work because of childcare responsibilities can be furloughed in the event they meet the “eligibility criteria”. However, it is the employer’s choice as to whether an employee should be offered furlough leave – and this may not always be in line with the needs of the business.

Ultimately, it will be a balancing act and all discussions and decisions should be documented and retained.

What if I have work to keep the employee occupied for some but not all of their working time?

An employee can be furloughed on either a rotational or flexible basis. Those employees on flexible furlough can work for any amount of time, and any work pattern but they cannot do any work for the employer during hours that it records them as being on furlough. Flexible furlough agreements can last any amount of time, therefore, given the minimum claim period is seven days (subject to some exceptions) the work pattern can be changed on a weekly basis.

Those hours worked are remunerated at 100% salary and the unworked hours can be paid either at the furlough rate applicable under the CJRS or up to 100% if the business is prepared to top up salary for the furloughed hours.

What can a business currently claim under the CJRS?

Under the extended scheme, employers can claim 80% of employees’ salaries, capped at £2,500 per month. Employers will still have to pay employers’ National Insurance and pension contributions. The government has confirmed that the 80% government contribution will be maintained until the scheme closes in April 2021.

Is there any documentation I need to put in place and keep?

Yes! It’s imperative that the business has in place a written agreement for each furloughed employee which sets out the hours they will work (if any) and the hours they will be on furlough. These agreements must be in place ahead of the furlough commencing and must be retained for a period of 5 years.

Records must also be kept for 6 years in support of claims made under the CJRS – the guidance says that you must keep records of :

  • the amount claimed and claim period for each employee
  • the claim reference number for your records
  • your calculations in case HMRC need more information about your claim
  • for employees you flexibly furloughed, usual hours worked including any calculations that were required
  • for employees you flexibly furloughed, actual hours worked

Is there anything else I need to know about furloughing staff?

There is a lot of detail in the government guidance and Treasury Directions. Key to be aware of at this time:

  • Claims, and amendments to claims, must now be made within a relatively tight timeframe after the claim month to which they relate. Acceptable excuses for missing these deadlines are very limited.
  • Employers cannot claim for any days on or after 1 December 2020 during which the furloughed employee was serving a contractual or statutory notice period for the employer (this includes people serving notice of retirement or resignation).
  • From 1 February 2021, HMRC will publish:
    • the names of employers who claim under the CJRS for periods starting on or after 1 December 2020, and
    • an indication of the amount claimed

This is unless the employer can show that publication would expose them or their workforce to ‘serious risk of violence or intimidation’.

  • Guidance and Directions change and/or are updated. It is therefore prudent to keep copies (electronically or in hard format) of that guidance or Direction in respect of which the employer is making decisions at any given time. Also, keep an audit trail of decisions made; especially in relation to claims under the CJRS as this may prove critical in the event those decisions are later challenged.

If you need any Employment advice, contact our Specialist team.

Jennie Jahina

Posted:

Jennie Jahina

Partner

Jennie is a Partner and Head of the Employment team.  A member of the Employment Lawyers Association, Jennie has 21 years’ experience and is an accredited CEDR Mediator. She acts for private sector organisations ranging from SMEs to multi-national companies and public sector organisations.