What Happens When The Furlough Scheme Ends?

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The Five Rs

The Coronavirus Job Retention Scheme (CJRS) was introduced in March by the Government to enable organisations to keep staff on payroll and not make them redundant but send them home. It served two purposes – ensuring people stayed at home at the height of the Covid-19 pandemic, whilst enabling people to keep their jobs. As it is fundamental to the employment relationship that the employer provides work and the employee undertakes work in order to avoid a breach of contact, the furlough period could only be put in place with the employee’s express agreement. “Furlough”, prior to March was not a term that had ever been used in relation to employment contracts/relationships.

Employers are now contributing to the scheme but with the Government still contributing 70%. In October employers will be contributing 20%. The Chancellor has made it clear there will be no further extensions to the scheme. It will end on 31st October.

So, what happens to the millions of people on furlough on 1st November:-

RETURN TO WORK – the ideal would be that the staff member returns to their job and full pay. There is no specified notice period that should be given to an employee that they are required to return, unless something specific was agreed at the start of the furlough leave.

REDUCTION IN HOURS/PAY – this can only happen if the staff member agrees to this. An employer cannot force a reduction in hours or pay. Some employees may be willing to agree to this to avoid losing their job.

REDUNDANCY – if the employer has become insolvent then there will be a redundancy situation. If the employer cannot afford to pay redundancy then the Government National Insurance Fund scheme may be able to assist employees. Employees will only be eligible for statutory redundancy pay if they have at least two years continuous employment. Redundancy pay should be calculated in accordance with the employee’s full pay, not any reduced pay whilst on furlough. If the employer no longer has a need, or has a reduced need for employees of a particular kind, this will fulfil one of the statutory definitions of redundancy. How the employer consults and selects those identified for redundancy will determine whether a dismissal for redundancy is fair in accordance with the Employment Rights Act 1996.

REMAIN AT HOME – the employer could discuss with staff the idea of working from home to assist with social distancing in the workplace. An employee cannot be forced to work from home if their contract of employment provides for a different place of work.

REFUSE TO RETURN – if an employee refuses to come back to work the employer will need to address the reason for the refusal and possibly address any concerns that mean the employee will not/cannot return, including if they are vulnerable and have worries about Covid-19 transmission.

If the employee is not invited back to work and/or is kept on reduced pay then this is likely to amount to breach of contract and potentially a constructive unfair dismissal.

Time is running out. If a genuine redundancy situation arises then the employer must still give notice that the employment is ending for this reason. The contract may dictate the notice period, but statutory minimum notice periods will apply in that one week’s notice for each complete year of service must be given, up to a maximum of 12 weeks.

If an organisation plans to make more than 20 staff redundant there must be a minimum consultation period before any notice of termination is given of at least 30 days.

It is going to be a difficult time for employees and employers so we are here to give the legal advice to guide you through it.

Contact Jennifer Carpenter, solicitor and partner with 20 plus years of providing employment law advice and representation to employees and employers.

Residential Property Boundary Disputes

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Does the Title Plan for a property determine the boundary for that property?

One of the most common misconceptions that we come across in our property dispute resolution department is that the H M Land Registry title plan denotes unquestionably the precise boundary for a property. If only matters were this simple. The title plan shows with a red line what is known as a “general boundary” only and therefore is of limited significance and use in determining the precise boundary.

A physical boundary may be marked by a fence, wall, hedge, stream, edge of a drive way to name just a few examples. It is necessary to look back at the initial conveyance for the property and if possible the original conveyance plan for more guidance on establishing the boundary lines where there is a dispute.

The historic background and information about the property and its boundary will also be relevant.

Where there is a boundary dispute we will conduct a site visit after perusing all available documentary evidence relating to the property. We will assist in engaging a surveyor if required and then do our upmost to achieve a swift resolution to the dispute, adhering to the Protocol for Disputes between Neighbours about the Location of their Boundary (The Boundary Disputes Protocol).

Adams Harrison Outside Meeting Area

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We welcome you to enjoy the pleasant surroundings of our secluded, private gardens in Saffron Walden to make a will or for other solicitor consultations by prior appointment. As a business we are committed to adhering to Government guidance, therefore we are only permitting visitors to our offices by prior appointment.

Our gazebo provides an alternative option for clients or contacts that would like to meet in person the lawyer advising them, whilst social distancing. We can offer, where appropriate, appointments inside our offices, also. We have Perspex protective screens in place. In the majority of cases we continue to provide legal advice via remote means. Click here for our full Covid-19 Policy.

Should you opt for an appointment in our garden you will enjoy views of St Mary’s Church. The largest church in Essex and a grade I listed building.

Call today for an appointment on 01799 523441 or send an enquiry to [email protected].

Adams Harrison Outside Meeting Area Aug 2020 03 Adams Harrison Outside Meeting Area Aug 2020 02 Adams Harrison Outside Meeting Area Aug 2020 01

APIL Injury Prevention Week

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Injury Prevention Week Logo

The 17th August 2020 marks the start of Injury Prevention Week, a campaign for awareness of pedestrians and road safety which is held by the Association of Personal Injury Lawyers (APIL). Adams Harrison Solicitors are supporting this week. Our Anton Bilinski personal injury lawyer and member of APIL explains why:

APIL are committed to raising and finding ways to avoid unnecessary harm and suffering caused by victims of accidents. This week mainly concentrates on pedestrian and road safety. Particularly focusing on non-drivers and children as they return to school throughout August and September. By setting a good example you can make sure your child remains safe when out and about and encourage them to follow the highway code.”

Adams Harrison by supporting this week hopes to highlight how to avoid needless harm and suffering in the first place. Unfortunately we see first hand the devastating effects caused by victims of road traffic accidents and as a firm we continue to seek compensation of those that have suffered injuries sometimes life changing.

Adams Harrison Excellent Lexcel Audit Result July 2020

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Adams Harrison is excellent – it is official.

Adams Harrison has held the Lexcel accreditation since 1999 and over the last four days has undergone a rigorous full reassessment. The result being that the firm has passed with flying colours.

What is Lexcel?

It stands for Legal Excellence and is a Law Society accreditation in relation to legal practice management standards that is optional for law firms to attain. Lexcel defines quality management procedures in seven areas: structure and strategy, financial management, information management, people management, risk management, client care, and file and case management.

During the audit there were absolutely no findings of non-compliance and the auditor identified 40 areas of good practice, an increase of four from the annual assessment last year.

The auditor for the assessment, when reporting the outcome, stated that an increase in the number of areas of good practice was a “remarkable result”, particularly in light of the recent Covid-19 pandemic.

Within the auditor’s report he has stated that the firm has a very robust and tested disaster recovery and business continuity plan. Reference was made to the firm having the Cyber Essentials kite mark.

The auditor stated that “processes and systems are extremely well understood by staff, and are also very well embedded into both the operations, and culture, of the Practice.”

In relation to risk management the finding was: “The Practice should continue to be commended for the practical, effective and comprehensive approach it has taken to operational risk management” and “the processes are clearly effective, very well implemented and, taken together, continue to constitute a highly robust approach”. It was stated that Adams Harrison should be highly commended for the work done to remain compliant against the requirements of the Standard.

The auditor was of the opinion that the Practice continues to place “very significant emphasis on the levels of ongoing client care which it provides.”

The report states that “In Lexcel terms, Adams Harrison, continues to be an extremely well run, and extremely well managed Practice – made all the more noteworthy by the fact that it has been achieved in a period of ongoing change and significant uncertainty!!”

 

Further Government Announcement On Furlough Scheme

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Yesterday the Government announced that in relation to the Coronavirus Job Retention Scheme (CJRS) that whilst it will close to new entrants at the end of June this will not be applicable to parents on statutory maternity and paternity leave who return to work in the coming months even after 10th June cut-off date.

However, this will only apply where they work for an employer who has previously furloughed employees.  An important announcement that has dealt with what would otherwise would have been an unfair and discriminatory situation for those that have been on maternity or paternity leave.

Our employment law specialist, Jennifer Carpenter, solicitor and partner can answer any queries or concerns you have about furlough leave, employment terms, redundancy and other employment related issues.

Furlough Leave Update

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10th June 2020 – this is the last date for workers/employees not previously furloughed to be placed on furlough leave and for the employer to benefit from the Coronavirus Job Retention Scheme (CJRS). The scheme will close to new entrants on 30th June, meaning that from 1st July employers will only claim under the CJRS who have previously been furloughed for a minimum period of three weeks prior to 30th June. 10th June is the very latest to have had three weeks on furlough before the end of the month.

The CJRS will have greater flexibility come 1st July where furloughed employees/workers will be able to work less than their usual working hours and employers will pay them for the hours worked. The CJRS will continue to make furlough payments for the remainder of their normal hours that they do not work, up to a maximum.

IMPORTANT FACTS TO REMEMBER:-

  • There is no legal right or entitlement to be placed on furlough leave, although an employee/worker could make a request to be considered for such leave to their employer. It is, however the employer’s decision.
  • There is no right to receive redundancy instead of furlough leave.
  • There is no right to be placed on furlough leave as an alternative to redundancy.
  • An employer cannot force furlough leave upon an employee.
  • An employee cannot be required to use annual leave entitlement whilst on furlough leave.
  • Employers can furlough staff who are required to stay at home because they are shielding in line with Public Health Guidance, or because they need to stay at home with a family member that is shielding.
  • Non-discriminatory criteria must be used by the employer in selecting who to place on furlough.
  • An employer should be aware that a claim must not be made under the CJRS if it is abusive or otherwise contrary to the “exceptional purpose” of the CJRS, which is stated to be the payment of employment costs in respect of furloughed employees “arising from the health, social and economic emergency in the United Kingdom resulting from coronavirus and coronavirus disease”.
  • Employers are not legally obliged to “top up” the CJRS pay to the employee/worker.

Our employment law specialist, Jennifer Carpenter, solicitor and partner can answer any queries or concerns you have about furlough leave, employment terms, redundancy and other employment related issues.

Furlough Leave Update Information

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All employers and organisations please be aware that in order to qualify for the subsidy from the Government’s Coronavirus Job Retention Scheme all employees/workers furloughed must have been given written instruction that they cannot do any work for the organisation that has placed them on furlough, and have consented to this in writing. This is contained in the Treasury Guidance to HMRC dated 15th April 2020.

The scheme has very recently been extended until the end of June.

For all your furlough leave questions answered, whether you are employer or employee, please contact our employment specialist Jennifer Carpenter, Solicitor and Managing Partner.

Some FAQs About Furlough Answered

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Some FAQs about furlough, answered by employment law specialist, Jenny Carpenter, Solicitor.

Do you have to be employed to be placed on furlough leave?

No, the Coronavirus Job Retention Scheme applies to the self employed, contractors and zero hour workers.

Can furlough leave be used for those shielding at home from Covid-19 as they are in the vulnerable group of individuals?

Yes, the Scheme Guidance makes it clear that those that are shielding in line with public health guidance can be placed on furlough leave by their employer. However, this is only the case if the employee cannot work from home and would otherwise be made redundant.

Can a worker/employee with caring responsibilities be placed on furlough leave?

Yes, if for example an employee is unable to work because there is no child care provision (particularly relevant as schools are closed) then they can volunteer for furlough leave. However, an employer is not obliged to place an employee/worker on furlough.

Can apprentices be placed on furlough leave?

Yes, and they can continue with training during this time, but not work.

Can a furloughed worker/employee undertake voluntary work whilst on furlough leave?

Yes. But not for the organisation that has placed them on furlough leave.

Can paid work be done by a worker/employee on furlough leave?

This depends. Paid work cannot be done for the organisation that placed them on furlough. However, if the worker/employee’s contract of employment permits them to have more than one job then there is no reason why they cannot take up paid work elsewhere.

Can a Nanny be placed on furlough leave?

Yes, the Guidance makes it clear that those employed by individuals can be placed on furlough. However, they must be paid through PAYE payroll and have been on the payroll as at 28th February 2020.

Can a director of a company be placed on furlough leave?

Yes, provided the decision is made by the Board of Directors and documented. It does of course mean that the director cannot then do any work for or on behalf of the Company during the period of furlough. The director can though carry out his/her statutory obligations under the Company Act 2006.

Employment Law Terms Explained

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As a result of the Coronavirus pandemic we are experiencing unprecedented employment circumstances and lots of different terms are being used to describe a worker/employee’s situation:-

Laying off

The employer provides the employee with no work, nor pay for a undefined period, but retains them as an employee.

Short time working

The employer provides less work (normally less hours of work) for less pay but retains the employee.
An employer should only impose one of the above if the contract of employment makes full provision for this, otherwise the employee would have a claim for breach of contract.
In certain circumstances where an employee is put on short time working or lay off they become entitled to claim a statutory redundancy payment. This is only where the employee has at least two years continuous employment with the employer and the statutory scheme for claiming redundancy pay is followed.
To be able to claim the employee must have been laid off or kept on short-time working (or a combination of both) for at least four or more consecutive weeks; or a total of six weeks (of which no more than three are consecutive) in any period of 13 weeks.

Redundancy

A potentially fair reason to dismiss under the Employment Rights Act 1996, either due to:-

  1. A place of work closure
  2. A company/business closure
  3. There no longer being a need, or there is a reduced for employees of a particular kind.

It is worth noting, however that notice must still be given to the employee that the employment is to be terminated.

Furlough leave

With the worker/employee’s consent they agree to go on paid leave for a minimum period of three weeks whereby they do not undertake any work and are retained as an employee. The employer can utilise the Government Retention Scheme and recoup up to 80% of staff wage costs via HMRC. The employer is not obliged to pay 100% of pay during furlough leave. Forcing an employee to be furloughed would amount to breach of contract. Therefore, it can only be done with the employee’s express consent.
There is no right to request furlough leave, nor any right to request redundancy as an alternative.

For advice as an employee or employer our employment law specialist solicitor Jennifer Carpenter is available at [email protected].