10 Facts About Furlough Leave

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The Government’s Coronavirus Job Retention Scheme (CJRS) has been extended to the end of September 2021. However, from 1st July 2021, employers can only reclaim up to 70% of wages for hours not worked (up to the cap of £2,187.50 a month). Nevertheless, the employer must continue to pay at least 80% of the employee’s wages (up to the cap of £2,500 a month) for any furloughed hours. Therefore, from the start of next month employers will have to contribute 10% (up to the cap of £312.50 a month). It is optional whether an employer chooses to top up an employees’ wages above the 80%, but this cannot be reclaimed.

Did you know …

  1. There is no minimum period of furlough leave.
  2. Employees, directors and workers can be included in the Scheme.
  3. Decisions made by an employer as to who should be furloughed can amount to unlawful discrimination if the selection is based on any “protected characteristic” under the Equality Act 2010 (e.g. age, sex, race, religion, disability).
  4. Any reduction in pay whilst on furlough must be agreed with the employee, otherwise it amounts to a breach of contract.
  5. Holiday entitlement will continue to accrue for an employee during furlough leave.
  6. An employer can force an employee to use holiday entitlement whilst on furlough leave.
  7. Employers can carry out a redundancy consultation with employees whilst they are on furlough leave.
  8. Employees can be made redundant whilst on furlough leave, or at the end of furlough leave.
  9. If an employee receives a payment in lieu of their notice entitlement upon termination of their employment the CJRS cannot be used to help pay this.
  10. For the purpose of calculating an employee’s entitlement to various statutory payments, including redundancy pay, this must be with reference to their normal pay, not the pay received whilst on furlough leave.

For more detailed advice, whether you are an employee, worker or employer please consult with our employment specialist – Jennifer Carpenter, solicitor and managing partner.

 

COVID-19: Lord Chancellor’s Speech On Recovery Plans For Justice System

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On 4 June 2021, the Lord Chancellor, Robert Buckland QC MP, spoke at the Law Society, where he reflected on the justice system’s response to the pandemic and outlined the Ministry of Justice’s post-pandemic recovery plans for the justice system.

In his speech he spoke, in particular about:-

  • The pandemic “cementing” the need for remote hearings to be made available. Going forward, the MoJ wants the effective use of audio and video technology to remain an “integral part” of the justice system.
  • The use of remote hearings can increase court capacity, make the process “less intimidating” for vulnerable people, reduce the time spent travelling to a hearing and improve transparency in the justice system.
  • Judges should have the choice and flexibility in how they use audio and video technology, where appropriate. Changes will need to be carefully considered and discussed with the Lord Chief Justice and Rule Committees.
  • The nature of dispute resolution should be redefined, and courts should be used as a last resort.
  • A “fresh look” needs to be taken at how justice works, by looking at how the court experience can be improved for all users and building on what has been learned over the last 15 months, as to how new technology and “radical new methods” could improve the justice system of tomorrow.

Haverhill Show 2021

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Haverhill Show 2021

We are delighted to be a sponsor of this year’s Haverhill Show, being held on Sunday 4th July, at the Recreation Ground.

The show is Haverhill’s biggest community event and we are pleased to be able to contribute towards it raising money for local charities and good causes, who do important and valued work in the town.

We will be present at the show, making people and businesses in the local community aware of our services. Come and visit us at our gazebo on the day. We will be pleased to see you and talk with you.

Divorce And Making Your Will

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What happens to your Will if you get divorced or end your civil partnership?

When you divorce or end your civil partnership your former spouse/civil partner is treated as having died before you. Your former spouse/civil partner will not inherit anything from your estate unless your Will specifically stated that divorce or dissolution of a civil partnership would not affect the gift that was detailed in the Will.

In addition, if you had named your former spouse or civil partner as an executor in your Will (ie the person who collects in all your assets, pays off your debts and distributes your estate) they will not be able to act as your executor once you are divorced or after you have ended your civil partnership. If you had appointed your ex as your sole Executor, without any provision for a replacement, this would have to be rectified upon your death, which could cause delays and unnecessary costs.

Making a new Will

Unless there is good reason to the contrary the best time to make a new will is after decree absolute and after all outstanding financial issues have been settled. That is so that any future claim of an ex spouse can be properly quantified

It is especially important to make a will to ensure that your children are properly provided for.

Divorce also affects guardian appointments in a will. If the couple getting divorced have children together, and not from previous marriages, then the remaining parent shall continue to have responsibility for those children as that parent also has parental responsibility for those children. If there were children from a previous partner, and the wife, for example, had appointed the now former spouse as guardian in her will, this appointment would fail. The former spouse was not the biological parent of the child and therefore does not have parental responsibility for the child. He (or she) cannot be automatically empowered to continue to parent the child; he has to be chosen by the mother in her will. When this couple divorce, this appointment fails. If no other person is appointed, it shall be for Social Services to assess who is the appropriate adult to parent the child.

Next steps

For further information about making a Will, please contact a member of our Private Client department for expert and professional advice.

Hayley Ford – Partner/Solicitor – Private Client Department.

Redundancy and Furlough Leave

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The Coronavirus Job Retention Scheme (CJRS) has been extended by the Government until 30th September 2021. However, from 1st July 2021 the level of the grant will be reduced and employers will need to contribute towards the cost of employees on furlough leave. Any employee/worker on furlough leave must receive as a minimum 80% of their pay, up to a maximum of £2,500 per month. In July employers will need to pay 10% and then 20% in August and September.

The CJRS is designed to help prevent staff from losing their job if they are unable to work as a result of the Covid-19 pandemic in circumstances where they would otherwise have been made redundant. There is, however no right to demand furlough leave from an employer, and no obligation upon an employee to agree to furlough leave if proposed by an employer. Guidance has already made it clear that furlough leave ,and therefore the CJRS, can be used for employees shielding, unable to work due to child care or other caring commitments. Presently, the scheme is most likely to be used by those in the hospitality, beauty and retail sectors but as the Government’s Roadmap moves forward this should reduce those unable to work due to pandemic related restrictions.

Does furlough leave have to be at full pay?

No, but for furlough leave to be lawful, and not in breach of contract, the staff member must give express consent, including to a reduction in their pay. An employer can choose to top up the pay to the full amount if they wish, but is only a legal requirement of CJRS that the employee receives a minimum of 80% pay (subject to the cap).

Does furlough leave have to be full time?

Since July last year furlough can be used flexibly so staff can work some of their contracted hours, or be on a rota system whereby they take it in turns with colleagues to be on furlough leave, or be working.
Can redundancies be made whilst staff are on furlough leave?
An employee can be made redundant whilst on furlough.

What is the position with regard to notice?

Full notice must be given and at full pay.

Is the rate of pay for redundancy affected for those on furlough leave?

Statutory redundancy payments for those that are eligible must be calculated by reference to a normal week’s full gross pay, not furlough pay rates.

If you are considering making redundancies then we can give you the legal advice and guidance to enable you to adhere to the statutory requirements and procedures; or to help explore alternatives with you. Please call us on 01799 523441

Thank You From The Laughter Specialists

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The Laughter Specialists LogoWe are delighted to have supported The Laughter Specialists, a Saffron Walden based charity that connects and interacts, through fun and laughter, with vulnerable children and young people in need:

“We are extremely grateful for your kind donation, and will be putting it towards spreading as much light, joy and laughter to the vulnerable children and their families, especially at the moment when Covid has made life all the more difficult for a lot of these families.

We really appreciate your support, thank you so much.”

Our generous donation was made by our Partners, following a nomination from our staff. It represents one of several made to local charities who provide services in the Saffron Walden, Haverhill and Sawston areas. Donations were made in lieu of sending company Christmas cards.

Uber Drivers Are Workers

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In a very recent February 2021 Supreme Court decision (Uber and others v Aslam and others [2021] UKSC 5), the employment tribunal decision that Uber drivers are workers within the meaning of UK employment legislation has been upheld. The decision reached was predominantly based on the degree of subordination and control to which the drivers were subjected by Uber making them workers, not self employed individuals. The court has also determined that the drivers’ working time included when they were logged in to the Uber app within the area in which they are licensed to operate and ready and willing to accept trips.

There has been an increase in the number of cases where it is necessary to determine whether an individual is either self employed or a worker. Many of these cases have involved couriers and drivers. Proving worker status is important to assert various rights that a worker would have, for example entitlement to receive national minimum wage and entitlement to paid annual leave. “Worker” is defined under section 230(3) of the Employment Rights Act 1996. However, Tribunals will not just look at how an individual has been labelled by the parties but the reality of the situation in practice.

This case is the fourth time the courts have reached the same conclusion regarding worker status. The significance of this case is that there is no further right of appeal from the Supreme Court and Uber must now deal with a situation whereby its drivers are workers. The financial impact for the company is likely to be significant. It may even change the way in which Uber can operate.

Now that worker status has been established this case will return to the employment tribunal, to determine the compensation due to the drivers in respect of their claims for holiday pay and unlawful deductions from their wages.

What can be learnt from this case? The courts will look to protect workers in spite of the contractual documentation they sign. If employers use complicated arrangements in an attempt to disguise the true nature of the working relationship it is likely to fail.

We can help by providing advice on the status of working arrangements for employers, employees, workers and contractors. All employers should be aware of any risk they may carry of having worker status claims brought by those that undertake work for them purporting to be on a self employed basis.

Contact our employment specialist Jennifer Carpenter, Solicitor and Managing Partner, for more detailed and specific advice.

Support For The Friends of Bellbird School, Sawston

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Friends Of Bellbird School

Friends Of Bellbird School Logo

We are delighted to have received a letter from The Friends of Bellbird School, Sawston ,thanking us for “our kind and generous donation” towards their Christmas Raffle. The school raised over £1,100 for its 377 appreciative children, staff and parents. This represents one of several annual donations that the Partners of Adams Harrison kindly give, in support of charities and other organisations in the Saffron Walden, Haverhill and Sawston communities.

When Making A Will; Letter Of Wishes

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When making a Will, it is also possible to add a separate letter of wishes which can expand on certain clauses within your Will.

Letters of wishes act as a guide to your executors on your wishes but are not legally binding.

A clause within your Will dealing with your funeral directions often simply states whether you wish to be buried or cremated and where. In a separate letter of wishes you can go into further detail about the type of service you would want, the music to be played and instructions on your headstone. This letter can then be amended as often as you wish without the need for your Will to be amended which would incur costs.

It is sometimes necessary to set up trusts within your Will for beneficiaries who, for whatever reason, are not to benefit absolutely from you. In a letter of wishes you can give instructions to your Executors (who become the trustees of your trust) on how you would like your trust to be administered. For instance, you could ask for an annual income to be paid to a beneficiary. You can also advise on when lump sums could be released such as for the purchase of a house, wedding etc. Trust clauses in Wills specify that the trust is administering by the Trustees and do not go into more detail, by preparing a letter of wishes you can expand on your instructions.

It is sometimes the case that you do not wish to include certain people in your Will. If this is challenged in the future the courts may require more information on your reasons. You can prepare a detailed statement giving your reasons which could then be used as evidence in court.

Where you are appointing guardians in your Will for children under 18, you may wish to set out your wishes to those guardians. You could give instructions on how you would wish your children to be raised and educated.

Rather than including lists of personal items in your Will and to whom they are to pass, these can instead be included in a letter of wishes. Again, this letter can be changed as often as you like without the need for your Will to be amended. As personal possessions increase and change over time, the letter can be easily changed to reflect this.

The use of these documents prevents your Will being overly complicated and lengthy. The Will itself relates to facts and the law behind it.

Brexit and the Implications for Employment Law in the UK

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The UK left the EU on the 31st January 2020 following ratification by the UK and the EU of the Withdrawal Agreement. A transition period then applied until 31st December 2020. During this time for most purposes the UK was treated as if it were still a member of the EU. Therefore, most EU law continued to apply to the UK. It is the European Union (Withdrawal) Act 2018 that ended the supremacy of EU Law in the UK and prepared the legal framework for the UK to withdraw from the EU. The Act meant a conversion of EU law into UK law as it stood at the moment of exit. Meaning that any UK Laws derived from the EU remained applicable. Therefore, this means that any employment legislation derived from the EU remains applicable in the UK, but just on a different constitutional basis.

There is now an end to the principle of the supremacy of EU law to the effect that it no longer applies to any UK enactment or rule of law passed or made on or after 31st December 2020. The supremacy of EU law continues to apply in the UK where there is an inconsistency between an EU directive and UK domestic legislation and the directive was implemented before the end of the transition period, any inconsistency in the law should be resolved in favour of the EU directive.

Regulations have been enacted that have determined that the Court of Appeal in England and Wales are not bound by retained EU case law. This does, however, raise concerns with regard to creating uncertainty in relation to employment law matters. How to interpret retained EU law since the end of the end of the transition period on 31st December 2020 is tricky to determine.

Decisions will now rest with the UK Government as to whether it should retain, amend or repeal the UK employment law that has been derived from the EU. The most likely areas of law to be subject to change are:-

  • The Working Time Directive 1998. The UK has the Working Time Regulations 1998 that govern working time and holidays. There may be an overhaul of the way holiday pay works as this is currently a complicated area due to the effects of several previous European Court of Justice decisions.
  • Agency Worker Rights – This is an area that could see an overhaul as the Agency Worker Regulations 2010 are quite complex and unpopular.
  • The Transfer of Undertakings Protection of Employees Regulations (TUPE) provide the rules for business transfers. These can be difficult to apply in practice.
  • The Equality Act 2010 – this deals with discrimination legislation in relation to workers’ protections. The Government has already indicated that it does not want to reduce the protections as set out in this legislation. However, there may be some changes to discrimination based claims.

As it is early days since Brexit only time will tell as to how exactly this will impact on the future of employment law in the UK. Watch this space …

For all employment law related advice and representation please contact Jennifer Carpenter solicitor and partner.