Beyond Content 01 Furlough After 30 June 2020 02 Flexible - PowerPoint PPT Presentation

Employment Law Webinar Flexibility: Furlough & Beyond

Content 01 Furlough After 30 June 2020 02 Flexible Working Requests 03 Flexible Contract Terms

Furlough After 30 June 2020 Stephen ten Hove

4 Employment Law Webinar CJRS after 1 July: Sources  Statement by Chancellor of the Exchequer: 29 May 2020  HMRC Guidance: 12 June 2020  Treasury Direction to HMRC: 25 June 2020

5 Employment Law Webinar CJRS: Which employers can claim from 1 July 2020? The criteria for eligible employers remain the same:  You cannot maintain your workforce because your operations have been affected by coronavirus?  If so, you may furlough employees and apply for a grant provided you record them as being on furlough

6 Employment Law Webinar Time limits to claim  You will not be able to make claims for July until 1 July 2020  Note: 31 July 2020 is the last day to submit claims for furlough grants for periods ending on or before 30 June 2020

7 Employment Law Webinar Which employees qualify for furlough payments?  The definition of “employee” for the purpose of furlough from 1 July is unchanged  But: you can only claim a grant in respect of employees for whom you have previously received a grant payment  That is: those previously furloughed for at least three consecutive weeks between 1 March and 30 June 2020. Last day 10 June 2020

8 Employment Law Webinar Which employees qualify for furlough payments? (2)  Finally, the maximum number of employees you may claim for after 1 July 2020 cannot exceed the maximum claimed for before 1 July  Exceptions:  Employees returning from statutory parental leave or a returning military reservist

9 Employment Law Webinar The definition of “work” and TUPE  The definition of “work” remains the same  Provisions as to TUPE remain the same

10 Employment Law Webinar Previous poll results  Are you planning to have employees both working part time and on furlough part time?

Are you planning to have employees both working part time and on furlough part time? Poll

12 Employment Law Webinar What changes from 1 July 2020?  You will be able to “flexibly furlough” employees  You can claim the grant for the hours your flexibly furloughed employees do not work when compared to the hours they would normally have worked during the relevant period  From 1 August the level of the grant available will be slowly reduced as follows:

13 Employment Law Webinar What changes from 1 July 2020? (2)  In August 2020: employers will have to pay employer NIC and pension contribution on furlough payments  In September 2020: employers will pay what they paid in August plus 10% of employee furlough cost. Furlough grant capped at £2,187.50  In October 2020: as September, but the employer contribution to furlough is 20% so furlough pay capped at £1,875.00

14 Employment Law Webinar Record keeping  You must keep a copy of all records for six years including:  Your agreement about terms of furlough with your employees  The amount claimed and claim period for each employee  The claim reference number for your records  Your calculations in case HMRC wish to see them  Usual hours worked for employees on furlough  Actual hours worked for employees you flexibly furloughed during period of claim

15 Employment Law Webinar Working out the claim  The maximum grant is £2,500 per month or £576.92 a week. If you claim for periods that are not one month or one week you will need to calculate a daily wage amount for each employee and then work out the number of calendar days during each month the employee is furloughed  In July, August and October daily rate: max. of £80.65 in September: a max. of £83.34  In September and October this is the max. amount you will have to pay a furloughed employee but the grant you can claim from HMRC will be lower

16 Employment Law Webinar Working out the claim (2)  From 1 July onwards you cannot make a furlough claim that covers more than one calendar month  Fixed pay is easier. Variable pay? Compare with same calendar period in 2019/2020 tax period or average wages tax year 2019/2020 or, if neither, average over remainder of tax year  HMRC will be “reasonable” so long as grant applications are honest and supported by documents. It also promises to update its Guidance with fresh calculation scenarios

17 Employment Law Webinar Working out the claim (3)  Recommend HMRC’s Guidance and not the Treasury Direction

18 Employment Law Webinar After October 2020?  The Treasury Direction does not definitively say that the CJRS will end on 31 October 2020

Flexible Working Requests Adam Williams

Do you anticipate an increase in flexible working requests over the next year? Poll

21 Employment Law Webinar Flexible working requests  Extent of the statutory right  Handling a request  Rejections and challenges  What lies beneath?  Surfing the wave

22 Employment Law Webinar Extent of the statutory right  Eligible employees (service/status), have right to:  make a request for a change to their terms of employment governing how and when they work  have that request dealt with in a “reasonable manner” and  only have their request refused for a prescribed business reason (s. 80G(1)(b)) and on correct facts  Ineligible employees can make an informal request

23 Employment Law Webinar Handling a request Request must Be dated, in writing, and state that it is made under s.80F ERA Reason for request? Set out change requested and intended start date ACAS Code Explain what effect, if any, it is perceived as having Discuss on employer and how this might be addressed and Deliberate over Confirm whether a previous request has been Deal made and, if so, when (without) Delay

24 Employment Law Webinar Rejections and challenges  Rejection must be based on genuine belief that a valid ground for refusal applied  Fairness and reasonableness not relevant, but assessment of factual basis for belief is  Consistency?  Appeals?  Claims  Typically within three months of outcome  Financial value is limited (<£5,000) but  Burden of dealing, and risk of order to reconsider

25 Employment Law Webinar What lies beneath?  Beneath the surface of any request for flexible working (formal or informal) might be  a discrimination complaint and/or  a resignation and constructive dismissal claim  Indirect sex; religion/belief; disability; part time/fixed term  Suddenly, ET is able to scrutinise the motive and legitimacy of the employer’s judgement/outcome  Objective justification (PMALA)  Discriminatory, or seriously flawed, decision making process could be a fundamental breach entitling employee to resign  ‘RORR’ test, for fairness of ‘dismissal’

26 Employment Law Webinar Surfing the wave  Build robust processes  Who will handle?  Will there be a moderator?  What’s the order of dealing/priority (reason, date of receipt etc.?  Reasons (will you insist, or would you rather not know)?  More time or trial as a modified acceptance (uncertainty)?  Impact of previous requests on subsequent  Rejections – ‘sub - optimal’ rather than unworkable?  Identify now/in advance relevant challenges that might apply to request from different parts of business, and (accurate) factual basis. Update in light of requests granted

How important is the engagement and knowledge of line management in dealing with FWRs effectively? Poll

Flexible Contract Terms Will Walsh

Do your employment contracts contain the right to lay off employees? Poll

30 Employment Law Webinar Increasing flexibility in contracts  Mobility clauses  Home working  Role flexibility  Flexibility on hours and shifts

31 Employment Law Webinar Cost saving measures  Lay-off and short-time working  Right to insist that holiday is taken at specified times  Pay in lieu of notice  Company sick pay

32 Employment Law Webinar Lay-off and short-time  Lay-off means no pay where no work to offer  Short-time means less than half pay because reduced work  Statutory Guarantee Payment for non-working days  Right to claim redundancy payment  Two years of service needed  Lay-off/short-time for four consecutive weeks or six weeks in 13 week period  Employee gives notice of intention  Can contest if reasonably expect resumption within four weeks  Employment Tribunal determines disputes

33 Employment Law Webinar Making contract changes  Phase over time  Consent  Termination and re-engagement

34 Employment Law Webinar Speakers Stephen ten Hove Will Walsh Adam Williams Partner, Employment Partner, Employment Partner, Employment 0207 822 1518 01293 558540 01483 467413 Stephen.tenHove@dmhstallard. Will.Walsh@dmhstallard.com Adam.Williams@dmhstallard. com com