COVID-19 FAQs - 27 March 2020

  1. Updated Furlough Scheme

Last night the government announced detailed guidance about its Furlough scheme.

The principal features are:

  • The scheme should be live by the end of April.
  • It applies to employees including flexible and zero hours employees as long as they were on the payroll on 28 February 2020. 
  • If an employee has more than one employer they can be furloughed for each job. Each job is separate, and the cap applies to each employer individually.
  • The scheme is not intended for most public sector bodies. Where employers receive public funding for staff costs, and that funding is continuing, the government expects employers to use that money to continue to pay staff in the usual fashion – and not furlough them. This also applies to non-public sector employers who receive public funding for staff costs.
  • Both employer and employee must agree to the furlough and only employers can apply. Employers must write to employees confirming they have been furloughed.
  • Employees will remain on the payroll but will not be allowed to work. They may volunteer or undertake training (but must be paid at least the national minimum wage if they undertake training, even if this is more than 80%).
  • The government will pay the lower of 80% of regular wages not including fees commission and bonuses, or £2,500 plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that wage. Income tax and national insurance contributions will be deducted.  Employers may choose to top up the 20%.
  • Those made redundant after 28 February can be re-employed by agreement and placed on furlough instead.
  • Employers can claim for a minimum of 3 weeks and for up to 3 months from 1 March 2020, this may be extended.

Calculating Furlough pay:

  • For those employed for a full year, the employer can claim for the higher of either: the amount earned in the same month last year or an average of monthly earnings from the last year
  • For those employed for less than a year the employer can claim an average of monthly earnings since starting work. The same arrangements apply if monthly pay varies such (as if on a zero-hours’ contract).
  • For those who started work in February 2020, employers will pro-rata earnings from that month.
  • Bonuses, commissions and fees cannot be included as part of monthly earnings.

Furlough vs sick pay:

  • Those on sick leave or self-isolating because of coronavirus (COVID-19) should be paid company or Statutory Sick Pay (SSP) whilst on sick leave or self-isolating, but can be furloughed after this.

Shielding:  

  • Employees who are shielding in line with public health guidance can be placed on furlough.  For more detail on what shielding means please see government guidance here.

Please let us know if you have any comments or queries. The full government guidance may be found here.

  1. Coronavirus Act

The Coronavirus Act 2020 received Royal Assent on Wednesday.  The majority of the bill came into force immediately. This includes new state powers to: prohibit events and gatherings; shut down premises or limit entry numbers. There are also measures to protect residential tenants from eviction; temporarily close schools and conduct criminal hearings electronically.

However, many employment law measures require further statutory instruments (i.e. new regulations) to become law and provide clarity on their detail. This includes changes to Statutory Sick Pay and emergency volunteering leave.

  1.  Employment Appeal Tribunal

On 25 March 2020 the President of the Employment Appeal Tribunal announced several Provisional Arrangements during the Covid-19 pandemic.

Essentially, all hearings (whether in person or electronically) until 15 April 2020 are postponed. The President or a Judge may issue urgent directions electronically should it be deemed necessary.

During this period, the EAT will not be in a position to respond immediately to telephone enquiries and parties should expect delays. All communication must be via email for the time being.

The time limits for submitting and instituting appeals remain unchanged.   

A further announcement will be made before 10 April 2020 including whether these restrictions will extend beyond this initial period and any update regarding hearings taking place after 15 April 2020.  

When hearings resume, they will initially be conducted exclusively by telephone, Skype or other form of video link. 

  1. Employment Tribunals

Further to this week’s announcement from the President of the Tribunals that all in person hearings until 26 June 2020 have been converted to telephone preliminary hearings, London Central Employment Tribunal have announced that all hearings (including telephone or electronic hearings) have temporarily been postponed. In person hearings at London Central will not take place before the end of June at the earliest. Telephone hearings may resume on 30 March 2020 but this is not guaranteed.

These measures will unfortunately cause further delays to live employment tribunal matters at London Central (in addition to delays caused by the announcement earlier this week applicable nationally). Now that a precedent has been established, it is likely that other tribunals in different locations may follow suit and postpone all hearings, even those that could be conducted remotely. We will update you on developments in due course.

Cater Leydon Millard

27 March 2020

This FAQ document provides general guidance only and expert advice should be sought in relation to any particular circumstances