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Georgina Emerson
Georgina Emerson
Date Published: 5 Jan 2021
Last Updated: 11 Jan 2021

What are the options for Employers in latest Lockdown?

Employment Law Advice

On 4th January 2021 the Government announced that due to Coronavirus cases rising rapidly across the country, England would again be placed in a national lockdown. The Government’s key message is that everyone must stay at home and follow Government’s guidance immediately. “The single most important action we can all take is to stay at home to protect the NHS and save lives”.

National Lockdown is going to have an impact on businesses and employers will be wondering what their options are going forward for their staff. To reduce social contact, the regulations imposed by the Government require some businesses to close or impose restrictions on how some businesses provide goods and services. Further information in relation to the closure of businesses can be found here.

We have summarised some of the options available to employers:

Short term and emergency unpaid leave – dependants

Employees are legally entitled to a ‘reasonable’ amount of time off unpaid to deal with an emergency involving a dependant. A dependant could be a spouse, partner, child, grandchild, parent or someone who depends on the employees care. For example, if there is a sudden school closure or if a dependant falls ill with coronavirus, it may be that an employee requires time off to care for them or to make alternative arrangements.

There are no limits on how many times an employee can take emergency and unpaid time off for a dependant; Further information about What is likely to constitute an emergency is set out in detail here.

Unpaid and emergency leave is likely to be a short term measure.

Agreed Unpaid Leave

If there are no other options available, it is possible for the employer and employee to agree a period of unpaid leave. We suggest that this should be kept under review.

Furlough/flexi-Furlough

The Government has extended the Coronavirus Job Retention Scheme until 30 April 2021. Therefore, if employers are not able to maintain their employees due to the impact of the pandemic, they have the option to furlough their employees and apply for a grant to cover a portion of their employees usual monthly wage costs.

Employers can claim 80% of an employee’s usual salary for hours not worked, up to a maximum of £2,500 per month. Any entity can apply, including businesses, charities, recruitment agencies and public authorities.

Employers can claim for employees who were employed on 30 October 2020, as long as they made a PAYE RTI submission to HMRC between the 20 March 2020 and 30 October 2020, notifying a payment of earning for that employee. Employers do not need to have already claimed for an employee, prior to 30 October 2020, to make a claim.

Employers can flexi-furlough employees for any amount of time and any pattern of work, but still claim the grant for the hours not worked.

If an employer wishes to make a claim for furlough in December 2020, they must make the claim by 14 January 2021. They can no longer submit claims for periods ending on or before 31 October 2020.

Conditions

An Employer must have satisfied the following condition in order to be able to claim:-

  1. Created and started a PAYE payroll scheme on or before 30 October 2020;
  2. Enrolled for PAYE online; and
  3. Have a UK, Isle of Man or Channel Island bank account.

An employer can either fully furlough an employee, which means they cannot undertake any work for the employer while furloughed or they can flexibly furlough an employee. Flexibly furloughing an employee means they can work for any amount of time, and any work pattern but they cannot do any work for the employer during hours that the employer records them as being on furlough.

It is important that employers discuss the options with their staff and make any changes to the employment contract by agreement. Equality and discrimination laws apply in the usual way. If employers have any concerns or doubts about the rules and regulations surrounding the furlough scheme, they should seek advice. Further information can be found on the Government website here.

Flexible working

It may be that an employer can introduce some flexibility into the employees working arrangements. Some employers may already have integrated flexibility clauses into the employment contract, which means that they can agree to change the time of work, type of work or working environment.

If the employer does not have a flexible working policy or clause in the employment contract, it still might be possible to have a discussion with the employee to establish whether or not they would be willing to be flexible. For example, due to the coronavirus, it might be necessary to try new ways of working (i.e. working from home or fewer hours).

Critical Workers

The Government’s guidance on Critical Workers has recently been updated to include those whose work is critical to EU transition (Brexit). Despite the national lockdown, the Government has asked schools to remain open to provide access to full-provision teaching to children of Critical Workers (and vulnerable children). This should assist with ensuring that Critical Workers can continue with their work.

The Government’s defines Critical Workers as ‘parents whose work is critical to the coronavirus (COVID-19) and EU transition response include those who work in health and social care and in other key sectors outlined in the following sections:-

  • Health and Social Care
  • Education and childcare
  • Key public services
  • Local and national government
  • Food and other necessary goods
  • Public safety and national security
  • Transport and border
  • Utilities, communication and financial service. ‘

The full list of workers who fall into the category of ‘critical’ can be found here.

Working from home

The Government advises that everyone must not leave or be outside of their home except where they have a ‘reasonable excuse’. A ‘reasonable excuse’ includes for the purposes of work. The Government states that “you can only leave your home for work purposes where it is unreasonable for you to do your job from home, including but not limited to people who work within critical national infrastructure, construction or manufacturing that require in-person attendance.” Therefore, if an employee is able to work from home, they should, and an employer should encourage their employees to work from home and ensure that they have the facilities available to them to be able to do so (i.e. IT equipment). If it is not possible for employees to work from home, employers should ensure that appropriate safety measures are put in place to minimise transmission of the virus. Further guidance about working from home can be found here.

How can Ellis Jones assist you?

Our employment department is available to assist you with any employment related matters including navigation the furlough scheme guidance.

If you would like any advice or assistance, please contact our employment partner, Kate Brooks on 01202 525333 or email kate.brooks@ellisjones.co.uk.

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Georgina Emerson
Georgina Emerson