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SSP Rebate Scheme to Close

The COVID-19 SSP Rebate Scheme will close with effect from 30 September 2021.

This scheme has allowed employers with fewer than 250 employees (as of 28 February 2020) to apply to HMRC for reimbursement of up to two weeks’ statutory sick pay (SSP) per eligible employee for absences taken due to COVID-19. After 30 September, the funding of SSP will revert back to being met entirely by the employer: any absences after that date, which are related to COVID-19, will not be eligible for rebate.

It is also worth noting that employers will not be able to make a claim for any eligible SSP costs incurred up to and including 30 September after the earlier of (i) 31 December 2021 or (ii) one year after the last qualifying day in the period of incapacity for work to which the SSP costs relate.

For the government’s updated guidance to employers for claiming under the scheme, click here.

If you would like any advice in relation to the above changes, please contact a member of our employment team to arrange an appointment.

Can you Dismiss an Employee who is not Vaccinated against COVID-19?

It was widely reported on 6 August 2021 that CNN dismissed three employees for attending one of its offices without having been vaccinated against COVID-19. Reportedly, CNN had informed its employees that vaccines were mandatory if they report to the office or out in the field where they come into contact with other employees. Whilst this occurred in the United States, which has a different legal system to the UK and different employment laws, it raises the question: can an employer take a similar approach in the UK?

Unfair dismissal

As we reported in our recent blog, it will be compulsory for care home staff in England to be vaccinated from 11 November 2021, unless they have a clinical reason for not being so. But in the absence of a vaccination being a legal requirement, can an employer have a mandatory policy and dismiss an employee who refuses to get vaccinated?

In the UK, employees with over two years’ service have unfair dismissal protection.

Tribunals are likely to consider that it will be unfair to dismiss an employee for not being vaccinated, unless it is essential and necessary for the employee to carry out their role. A lot will depend on the type of workplace and the level of risk, and in particular whether there is contact with clinically vulnerable people.

One scenario which might make a dismissal of an employee who refuses to be vaccinated fair is where there is pressure from third parties, e.g. if a client or customer of the employer will only allow people on site who are vaccinated. If this were to arise, in the case of employees with more than two years’ service, the employer would still need to look at the possibility of alternative work for the employee and also make reasonable representations to the third party before proceeding to dismiss.

Discrimination

No minimum length of service is required for an employee to bring discrimination claims, and protection is also afforded to job applicants during the recruitment process.

Certainly, to apply a policy of mandatory vaccination to those who have a clinical reason for not being vaccinated will expose employers to claims of unlawful indirect discrimination on grounds of disability.

It is also possible that those with certain religious or moral objections to the vaccine might bring claims if they are dismissed, or overlooked for a position, for refusing to be vaccinated. For example, some religious groups may be concerned that animal products have been used in the vaccines. Although there is no gelatine in the COVID-19 vaccines currently available, shark liver oil is being considered as an adjuvant for one of the new vaccines. Some people may reject the vaccine because embryonic tissue was used to test or develop the vaccine. Others may have a strongly held belief that vaccines are harmful to public health (anti-vaxxers), and although this is unlikely to amount to a protected belief, such claims can still be time consuming and costly to defend.

If there is found to be indirect discrimination on a protected ground, this will not be unlawful if it is justified as being a proportionate means of achieving a legitimate aim. The legitimate aim part of the defence should be straightforward, as the employer would be seeking to protect the health and safety of staff, clients/customers and other third parties. However, employers outside of the health and social care sectors would struggle to persuade a tribunal that a mandatory vaccination policy would be a proportionate means of achieving that aim, as there are less discriminatory methods that could be applied such as regular testing and implementation of COVID- secure guidelines.

Employers who would like more information on these issues should contact a member of Lanyon Bowdler’s employment team.

COVID-19 & The Coroner’s Court

As the UK approaches another grim milestone of registering nearly 130,000 deaths due to COVID-19*, significant pressures have been placed upon those working for Her Majesty’s Coroner Service nationally, as different regions have had to cope with a considerable increase in death referrals being made.

*128,222 deaths as at 04/07/21, where death occurs within 28 days of a positive test (statistics here).

Under s.1(2) of the Coroners and Justice Act 2009 (“CJA”), a coroner is under a duty to investigate a death where there is reason to suspect that:

  • the deceased died a violent or unnatural death,
  • the cause of death is unknown, or
  • the deceased died while in custody or otherwise in state detention.

Anyone can refer a death to a coroner, but The Notification of Deaths Regulations 2019 set out the duty of medical practitioners to refer certain deaths to the coroner. The Notification of Deaths Regulations 2019 were also relaxed during the pandemic by The Coronavirus Act 2020 to allow a medical practitioner, who attended the deceased within 28 days before death (a new longer timescale, and could be by video call), or attended after death, to register the death in the normal way, by the medical practitioner completing a Medical Certificate of Cause of Death (“MCCD”).

Ordinarily, as COVID-19 is a naturally occurring disease, any death arising from COVID-19 would constitute a “natural death”. Where a person dies a natural death, a coroner has no duty to investigate under s.1(2) CJA because there is no reason to suspect that the death is “unnatural”. This is confirmed in the Chief Coroner's Guidance No. 34 paragraphs 17-23.

However, a coroner’s duty to investigate may be engaged where a natural death becomes “unnatural” due to some form of human error or mistake. The question of what amounts to a death by “natural causes” was considered in the case of R (Touche) v Inner London Coroner [2001] QB. In that case, on 6 February 1999 Laura Touche gave birth to twins, delivered by caesarean section. On 15 February 1999, tragically, she died. She was only 31. She died from a cerebral haemorrhage, the result of severe hypertension, possibly secondary to eclampsia. The medical evidence suggested that had her blood pressure been monitored in the immediate post-operative phase, her death would probably have been avoided.

In Touche, it was held by the Court of Appeal that a death by “natural causes” should be considered an “unnatural death” where it was wholly unexpected and would not have occurred but for some culpable human failing. Lord Justice Brown stated that: “It is the combination of their unexpectedness and the culpable human failing [emphasis added] that allowed them to happen which to my mind makes such deaths unnatural. Deaths by natural causes, though undoubtedly they are, should plainly never have happened and in that sense are unnatural…”

In the context of COVID-19, this will be a fact-specific issue. It is well known that patients could contract the disease whilst in hospital as they are effectively “hubs” where the disease can spread from COVID-19 positive patients. Simply because a patient contracts COVID-19 whilst in hospital does not necessarily mean that the death was “unnatural” – it must be shown that the natural death was turned unnatural by a culpable human failing.

It would be fair to say that during the first wave, hospitals struggled to deal with the influx of COVID-19 positive patients and how to safely treat and isolate them away from the general hospital population, in addition to the difficulties of sourcing lack of personal protective equipment (“PPE”) for staff. Over time, proper PPE was sourced and provided; “Red zones” were set up for high risk patients (such as those who tested positive for COVID-19) who were isolated and treated by staff wearing full personal protective equipment; whilst “green zones” were established to treat patients considered at a medium to low risk.

Take one hypothetical example: Patient A is admitted into hospital with symptoms of stroke and is cared for on a low risk “green” ward. This ward had no COVID-19 positive patients when Patient A was admitted, and Patient A himself was COVID-19 negative upon admission. However, within a week, doctors and patients in the adjacent beds began to test positive and soon after Patient A also tested positive. He subsequently developed respiratory symptoms, and died 10 days later from hospital acquired COVID-19 pneumonitis. An internal investigation carried out by the hospital afterwards confirmed that staff members were not adhering to social distancing and that they were not changing PPE between patients, which caused an outbreak of COVID-19 on the low risk green ward.

In the above scenario, it is clear that the “culpable human failure” was the failure to adhere to social distancing and not changing PPE between patients, thus increasing the risk of staff-to-patient infection.

However, a coroner would then have to consider if that failure was causative – i.e. it was the failure to comply with social distancing and not changing PPE between patients that caused Patient A to become infected from COVID-19, and that he did not contract it naturally from some other means.

The question of causation was discussed in the case of R (Chidlow) v Senior Coroner for Blackpool and Flyde [2019] EWHC 581 (Admin) 12 March 2019 where it was determined that the culpable human failing must have contributed more than “minimally, negligibly or trivially” to the death, on the balance of probabilities.

In Patient A’s case, if it can be proven that the failure to comply with social distancing and not changing PPE between patients more than minimally, negligibly or trivially contributed to Patient A contracting COVID-19 and dying, this would render the death unnatural. In these circumstances, the coroner may then return a narrative conclusion which highlights the failings and causative link, and which would then be recorded for posterity on a Record of Inquest.

In summary, COVID-19 has posed significant challenges to Her Majesty’s Coroner Service – not only due to the sheer volume of deaths being referred, but also complex factual, medical and legal issues which a coroner is required to consider. As the death toll continues to rise (albeit at a slower rate than in 2020), it is likely that these pressures will continue for some time to come.

For more information, please contact our medical negligence team.

Testing Times for Separated Families

The pandemic has raised significant issues for separated parents who have had to struggle with making decisions for their children, often in the face of objection or disagreement from their ex-partner.

Under the Children Act 1989 the holders of parental responsibility cannot make unilateral decisions for their children. That is to say, they should not make decisions without the other parents’ consent.

The pandemic has meant parents have had to consider;

  • Can a child move between two households during lockdown?
  • If the child is home schooling, which parent should be responsible for that and can normal contact arrangements continue?
  • If the parents live a significant distance from one another, should the parent travel to the child’s’ local area for contact to avoid the child having to travel unnecessarily, if so what happens if the hotels and local amenities are closed?
  • If vaccination is extended for children, can the parents agree the child should receive the vaccination?
  • Now the most pressing decision is what should happen during the school holidays, can the children travel abroad?

Most families share the school holidays and often the only factor they have to consider is that the time falls within their allocated time with their child, so as not to fetter the other parents time. Or whether sufficient information has been shared with the other parent about hotel details, travel arrangements etc.

Now the government task force is due to report on 17 May and only then will parents know the exact rules for overseas travel regarding tests and jabs.

If all goes to plan parents will be able to go abroad from 17 May but that will not be the end of the matter.

COVID-19 tests with a negative result taken hours before travel will almost certainly be required for all those returning to the UK.

What happens, therefore, if you are returning at the end of a half term week or the end of the summer holidays, when the child has to go back to school? Should you run the risk of being stuck in a foreign country, unable to return if you or your child has a positive test result? A decision that will impact the child’s education.

What happens if one parent plans to go on their holiday the day after the other parent returns from their summer holiday? The second parent will be unable to go if the child is stuck and cannot return to the UK, or is having to quarantine.

Shielding to be Paused

Shielding is to be paused in England and Wales with effect from 1 April 2021.

The clinically extremely vulnerable were last advised to shield in England from 5 January 2021, following the imposition of the current national lockdown. The Department of Health and Social Care has now published a notification letter for that group to the effect that from 1 April, they will no longer be advised to shield and will not be eligible for statutory sick pay on the basis of being advised to shield. It states: “Everyone is currently advised to work from home where possible. If you cannot work from home, you should go to work.” The letter also notes that employers are required to take steps to reduce the risk of exposure to Covid-19 in the workplace.

At the time of writing, the shielding guidance in England states that it was updated on 18 March 2021 but does not yet reflect the latest position.

The Welsh Government has also confirmed that shielding measures for the clinically extremely vulnerable will be paused in Wales from the same date. That group was last advised to shield from 22 December 2020.

The shielding guidance in Wales was also last updated on 18 March, and refers to this anticipated change. It confirms that, from 1 April: the clinically extremely vulnerable are to go to work if they cannot work from home, as long as the business is Covid-secure; that the guidance will be updated further on 31 March; and that a new letter will be sent to the clinically extremely vulnerable in Wales in the coming weeks.

For advice on any employment-related issues arising in connection with Covid-19, please contact me on 01952 211010 or email john.merry@lblaw.co.uk.

Furlough Scheme Extended to 30 April 2021

The Chancellor, Rishi Sunak, has announced that the Coronavirus Job Retention Scheme is being extended for an extra month, until the end of April 2021.

He has also announced the government will continue to pay up to 80% of wages until the end of the scheme. When the scheme was extended to 31 March, the government committed to that level of contribution only until the end of January, with the level of contribution after that date to be subject to a later review.

For the full announcement from the Treasury, click here.

Child Arrangements Over The Christmas Period – How Does This Work With The Christmas Bubble?

Christmas is a special time of year for families, especially children. This year will be unlike any other we have experienced before due to the unfortunate Coronavirus pandemic that has placed the country under national restrictions.

On 24 November the Government announced that there will be special provisions for making a Christmas bubble with friends and family during the festive period. In brief between the 23 and 27 December households will be able to form an exclusive ‘Christmas bubble’ composed of people from no more than three households. The guidance states that you can only be in one Christmas bubble and you cannot change your bubble, so how does this work for children of separated parents?

The President of the Family Law Division and Head of Family Justice provided guidance in March 2020, at the beginning of the pandemic, stating “where parents do not live in the same household, children under 18 can be moved between their parents’ homes”. This guidance was issued to ensure any arrangements made between parents, whether that be by way of a Court Order or between the parents themselves, is upheld despite the restrictions imposed as a result of the pandemic, to ensure children maintain contact with both parents.

When it comes to the Christmas period 2020, the Government has followed this guidance provided by the Head of the Family Justice and have stated that “children (under 18) whose parents do not live together may be part of both parents’ Christmas bubbles, if their parents choose to form separate bubbles. Nobody else should be in two bubbles.”

This means that where you have a child with another parent from a separate household, your child can freely move between yours and the other parent’s household and be in both of each person’s bubble. This does not mean you have to include the other parent’s household as part of your Christmas bubble. This will assist families in not feeling restricted, and allow them to share the festive period with other friends and family as per the general guidance, if they so wish. It does not prohibit you including the child’s other parent as part of your bubbles, but allows for flexibility. This guidance has put the child at the heart of the festivities, allowing them to enjoy their time with all parents without feeling they need to choose which bubble to be a part of.

If you are concerned about how to manage child arrangements this Christmas please contact our specialist family law team.

Distribution Agreements

Distribution agreements are the framework for commercial relationships between suppliers and distributors. They are very common within the commercial world and it is imperative that they are drafted to cover all eventualities. With Brexit looming, it is a vital time for companies and individuals entering into such agreements to reassess these agreements and consider the potential amendments that might be necessary to protect themselves come 31 December 2020.

Although the implications of Brexit on distribution agreements are currently uncertain and are dependent on negotiations currently taking place, there are a number of predicted changes that are worth considering in advance. Advanced discussions will help to better prepare you or your company for the future and will put you in a better position for negotiating new contracts.

There are a number of key issues to consider, these include:

  • Definitions within agreements currently in place – is the UK defined as an EU state or as part of Europe? If so, amendments will be necessary to reflect the changes to the European structure.
  • Are there any competition issues that are currently regulated under your agreement? Currently, EU legislation and regulations have been adopted into UK law. However, once the UK leaves the EU, it is likely that this legislation will diverge over time. Competition law is likely to diverge as it will be regulated in the UK by the Secretary of State and the Competition and Markets Authority, rather than EU bodies.
  • As a distributor or a supplier, are you responsible for obtaining certification for any products? There is some concern that UK ‘Notified Bodies’ (such as the British Standards Institution) and authorised representatives will no longer be accepted by the EU. This would mean that, any goods imported into the EU would need to be certified by EUbased institutions in order for the goods to be accepted.
  • Tariffs on goods leaving the UK to go to EU member states – as a member of the EU, no tariffs are required when goods are exported to other EU member states. However, once the UK is no longer a member of the EU, tariffs will be applicable to exported UK goods. These tariffs are often of low value but will certainly make the goods less competitive. Specific tariffs are implemented by the World Trade Organization.
  • Tariffs on goods entering the UK from EU member states – if you import goods from Europe or you are a multinational company, you are likely to face new tariffs when you import goods into the UK. The Government has published expected rates of such tariffs but at this stage, these are subject to change.

Supply chains are going to be imperative moving forward. Ensuring that you are able to get hold of the goods or materials, at a relatively low cost is likely to become more of a challenge given the tariffs coming into force. It might be worth reviewing your supply chain and/or finding alternative options to prevent you from paying excessive import tariffs.

At this moment, we also cannot ignore COVID-19 implications. For example, if you are too heavily reliant on one distributor or supplier and their country of origin goes into lockdown, would you be able to work around this or would you be facing complications that you were not prepared for?

Ultimately, this area remains in flux. Now is the time to consider all of your contracts and relationships to ensure you are adequately prepared.

If you would like any advice or assistance in relation to a distribution agreement to which you are a party or you are soon to be a party, please contact our Commercial Department to arrange a call to discuss your options.

Furlough Claims - Time Limits

You might be aware of the new (quite short) timescales for lodging claims with HMRC for payments under the Coronavirus Job Retention Scheme (“CJRS”), which are as follows:

Claim for furlough days in

Claim must be submitted by

November 2020

14 December 2020

December 2020

14 January 2021

January 2021

15 February 2021

February 2021

15 March 2021

March 2021

14 April 2021

HMRC may accept a claim made after a relevant deadline if there is a “reasonable excuse for failing to make a claim in time despite taking reasonable care to do so” – provided that the claim is then made without delay after the excuse no longer applies.

Yesterday, the government amended its guidance to provide the following examples of what may amount to a reasonable excuse for missing a deadline:

  • your partner or another close relative died shortly before the claim deadline
  • you had an unexpected stay in hospital that prevented you from dealing with your claim
  • you had a serious or life-threatening illness, including coronavirus related illnesses, which prevented you from making your claim (and no one else could claim for you)
  • a period of self-isolation prevented you from making your claim (and no one else could make the claim for you)
  • your computer or software failed just before or while you were preparing your online claim
  • service issues with HMRC online services prevented you from making your claim
  • a fire, flood or theft prevented you from making your claim
  • postal delays that you could not have predicted prevented you from making your claim
  • delays related to a disability you have prevented you from making your claim
  • a HMRC error prevented you from making your claim

The New CJRS Treasury Direction

On 13 November, HM Treasury published its fifth Direction in relation to the furlough scheme. Treasury Directions form the legal framework for the scheme.

The new Direction:

  • formally extends the CJRS from 1 November 2020 until 31 March 2021;
  • sets out the detail of how the CJRS will operate between 1 November 2020 and 31 January 2021 (a further Direction covering February and March 2021 to be published in due course); and
  • withdraws the Coronavirus Job Retention Bonus.

The rules cover a wide range of issues including: eligibility; furlough agreements; claim periods; reference salaries; calculating usual hours of work; permitted activities during furlough; business succession (including TUPE); PAYE scheme reorganisations; and time limits for making claims.

Some key points are as follows:

  • Claims may not be made for any day that an employee is serving notice between 1 December 2020 and 31 January 2021. The Direction does not distinguish between notice of dismissal and notice of resignation.
  • It is now a condition of making a claim that the employer accepts that HMRC will publish information about CJRS claims on-line. This includes the name of the employer and a “reasonable indication” of the amount claimed. An exception may be made for employers who can show that publication would expose their workforce to “serious risk of violence or intimidation”.
  • Furlough agreements must be in place before the start of the relevant claim period (but may be varied during the claim period).

CJRS – Updated Guidance

As promised, the government updated its guidance on the furlough scheme on 10 November. The latest guidance for employers is here and that for employees is here.

Amongst other things, the updated guidance confirms that from 1 November, the scheme is open for employees who were employed on 30 October, as well as employees who were made redundant or stopped working on or after 23 September if they are then re-employed (provided that they were subject to a PAYE Real Time Information (RTI) submission to HMRC between 20 March and 30 October, or 23 September as the case may be, notifying a payment of earnings for them); and there is no longer a maximum number of employees for whom an employer can claim. (Up to 31 October, subject to limited exceptions, in any claim period employers could not claim for a greater number of employees than the maximum number for whom they had claimed in any claim period up to 30 June.)

As is well known, from 1 November employers can claim 80% of an employee’s usual pay for hours not worked, up to a maximum of £2,500 per month.

The guidance states that employees returning from maternity leave need to give 8 weeks' notice to end maternity leave early in order to be furloughed under the scheme. The guidance does not deal with the situation where employees who are not subject to a statutory obligation to provide such eight weeks’ notice (because the employer did not confirm the date upon which maternity leave would otherwise expire in writing) or otherwise where the employee and employer agree to shorten the eight week period. Therefore, for clarity, we await the updated Treasury direction, which will set out the formal rules of the extended scheme, and/or further updated guidance.

The employer must confirm in writing to the employee that they have been furloughed, and keep a written record for 5 years. Employers should also ensure that any furlough arrangements are introduced lawfully and otherwise effectively. We have updated our precedent furlough documents to take account of the extended scheme.

Employers can retrospectively implement furlough with effect from 1 November 2020, as long as the agreement to retrospectively claim furlough occurs on or before this Friday 13 November.

There seems to be a mistake in the guidance concerning TUPE. It states that employees who transfer under TUPE must have "been employed by their prior employer on or before 30 October 2020 and transferred from them to their new employer on or before 1 September 2020" whereas it should say: "been employed by their prior employer on or before 30 October 2020 and transferred from them to their new employer on or after 1 September 2020". See this Twitter exchange.

Notably, whilst the updated guidance confirms that, for the time being, employers can still claim under the scheme for furloughed employees, who are under notice of dismissal, it states that the government is reviewing whether this should continue, and the approach will change for claim periods starting on or after 1 December, with further guidance to be published in late November.

Wedding or Alarm Bells?

Confirmed cases of coronavirus are on the rise and greater restrictions are, once again, being imposed by the UK Government and the devolved administrations.

At the time of writing, Wales is due to come out of its national lockdown and England has entered its own.

Both nations have imposed various rules concerning gatherings at weddings and these have changed over time as the pandemic progresses.

Resultantly, couples who had planned to tie the knot in 2020 have been faced with a seemingly never ending amount of obstacles to overcome to get to their big day.

The Issue

Some of those, who have had their plans changed by the pandemic, have encountered issues with changing dates or reclaiming deposits from suppliers and venues. In the majority of cases, this isn’t a small amount of money, with the average cost of a UK wedding being around £21,000.

On 7 September 2020, the Competition and Markets Authority (“CMA”) in an open letter to the weddings sector highlighted concerns surrounding unfair practices by a minority of businesses, mainly relating to the cancellation of contracts and services due to the coronavirus lockdown restrictions.

Specifically, these issues were:

  • wedding businesses refusing to offer or give appropriate refunds where weddings are, or were, prevented from taking place by lockdown laws;

  • uncertainty about weddings that are affected by legal restrictions and government guidance as lockdown laws are eased; and

  • businesses seeking to rely on unfair contract terms.

The starting point is, the consumer should be offered a full refund where lockdown laws prevent or have prevented a wedding from going ahead as agreed. This refund being due even where the consumer has paid what the business claims to be “non-refundable” deposits.

There are circumstances where the business may be able to retain a proportion of the sums paid. This can include sums to cover services or products, which have already been provided, and a contribution to costs incurred by the business, which have a sufficiently direct connection with the contract.

Although, it is worth noting that there is no automatic legal right for a business to deduct its costs from a refund, but it may be able to where this could be considered as just taking all the circumstances into account.

Laws and Guidance

To make the issue that little bit more complicated, there is the added confusion surrounding lockdown laws and lockdown guidance.

Lockdown guidance is government issued directions concerning what people should or should not do and compliance with the guidance is not legally binding. Whereas, lockdown laws are legal restrictions on certain activities and include such laws as the rule of six and the requirement to self-isolate.

Consumers who choose to follow the government guidance should be treated fairly by the business and should not be misled as to the effects of that guidance.

However, where either party do not want to proceed due to government guidance, the situation is more complex. It will not always be clear what impact the government guidance will have on the contract.

It will be important to review any applicable pre-existing terms and conditions, specifically, clauses relating to cancellation, refunds, suspension of obligations or force majeure. A force majeure clause, if there is such a clause in the contract, will operate to relieve the parties’ obligations if a trigger event occurs, which is beyond the control of either party. In the absence of a force majeure clause, the parties would likely need to rely on the doctrine of frustration.

Where the contract has become frustrated, the parties are relieved from their obligations. There is potential for this to occur where lockdown guidance has made what was agreed impossible to perform. If the contract is frustrated, this will effectively end the contract. However, whether a contract is to be frustrated is highly dependent on the circumstances.

What Should You Do?

First of all, it is important to speak with the business itself, it may be possible to find a solution which benefits both parties. Whether this is a refund, a rearrangement or some other course of action.

If you cannot reach an amicable resolution, or you believe the other party is acting unfairly, you should consider why your dispute has come about; is it due to lockdown laws or guidance? If it is due to lockdown laws, your options will be greater and the situation will be clearer.

You should keep a record of what was agreed between you and the other party, and any documentation that you may have concerning the transaction.

If you have paid via credit card, your provider may be able to assist in obtaining a refund. This can be the case even where some of the deposit was paid via other means.

What Can Lanyon Bowdler Do to Help?

Our Dispute Resolution team has decades of combined experience in helping clients deal with all manner of disputes.

We will act quickly and professionally to settle the matter in your favour, and where possible, without the need for costly court proceedings.

Contact a member of our team today to see how we can help you.

Furlough Scheme Extended to March 2021

The Coronavirus Job Retention Scheme (“CJRS”), also known as the furlough scheme, will remain open not just until December, as originally announced by the Chancellor on 31 October, but until 31 March 2021.

From 1 November - 31 January the level of support available will mirror that available under the CJRS in August: for hours not worked by an employee, the government will pay 80% of wages up to a maximum of £2,500, with employers paying employer NICs and minimum auto-enrolment pension contributions. The extent to which employers are required to contribute to the cost of the scheme from February will be subject to review.

Full guidance on the extended scheme is due to be published on 10 November. However, we know this much from the HMRC policy paper:

  • Employers can claim even if they have not previously used the CJRS.

  • To be eligible employees must have been on the PAYE payroll on 30 October 2020.

  • Flexible furloughing is still allowed, as well as full-time furloughing.

  • Employees who have previously been furloughed continue to have their reference pay and hours based on the existing furlough calculations (as under the old scheme).

  • Employees who have not previously been furloughed will have a different pay/hours reference period. In basic terms, for those on a fixed salary, pay is based on 80% of the wages payable in the last pay period ending on or before 30 October 2020, and for those on variable pay, it is 80% of the average payable between the start date of their employment or 6 April 2020 (whichever is later) and the day before their CJRS extension furlough periods begins.

  • Employees can be furloughed if they are shielding in line with public health guidance, if they “need to stay at home with someone who is shielding”, or if they have caring responsibilities resulting from coronavirus (including a need to look after children).

  • Employees that were employed and on the payroll on 23 September 2020, who stopped working for their employer after that date can be re-employed and claimed for.

  • The Job Support Scheme and the Job Retention Bonus have been put on hold.

Extension to the CJRS

On 31 October 2020, HM Treasury announced that the Coronavirus Job Retention Scheme ("CJRS"), which was due to come to an end that day, would be extended until December in order to provide support to businesses and employees during the new national lockdown due to begin on Thursday 5 November.

The level of support available under the extended scheme mirrors that available under the CJRS in August: for hours not worked by an employee, the government will pay 80% of wages up to a maximum of £2,500, with employers paying employer NICs and minimum auto-enrolment pension contributions. Flexible furloughing is still allowed, as well as full-time furloughing.

The Job Support Scheme, which was scheduled to come into effect on 1 November, has been postponed until the CJRS ends.

An HM Treasury press release outlines the eligibility rules governing the extended CJRS. It states that neither the employer nor the employee needs to have previously used the CJRS, and that the scheme is available in respect of employees who were on the employer’s PAYE payroll by 23:59 on 30 October 2020.

Employers can claim the grant for the hours that their employees are not working, calculated by reference to their usual hours worked in a claim period. When claiming the CJRS grant for furloughed hours, employers need to report and claim for a minimum period of seven consecutive calendar days.

The press release states that employers are still “able to choose” to top up wages above the scheme grant at their own expense if they wish. Employers should remember, however, that without a valid contractual agreement (whether pre-existing or newly agreed) allowing them to reduce pay, it will be their obligation, and not a matter of choice, to continue to pay furloughed employees in full.

The government will confirm shortly when claims can first be made in respect of employee wage costs during November, but states that there will be no gap in eligibility for support between the previously announced end date of CJRS and the extension.

Amendment to the Job Support Scheme

HM Treasury has today announced that the Government contribution to employers’ wage costs under the Job Support Scheme (“JSS”) for open businesses will be increased, and the minimum percentage of normal hours that must be worked by an employee under the scheme will be reduced.

Employers will be required to pay not less than 5% of the cost of unworked hours, capped at £125.00 per month, instead of the 33% (uncapped) originally announced; and the minimum hours requirement is to be 20% of the norm, instead of 33%. The requirement for employers to pay all employer’s national insurance contributions and auto-enrolment pension contributions is to remain.

The government will now provide 61.67% of wages for hours not worked, up to a cap of £1541.75 per month - more than doubling the maximum payment of £697.92 under the rules as originally announced.

The scheme for businesses legally required to close remains unchanged. For details of that scheme, click here

The JSS, which was originally announced on 24 September 2020, opens on 1 November 2020 and is intended to run for six months.

The government’s full announcement can be accessed here and its modified factsheet for the ‘open’ JSS is here

Seven Months on and I'm Still Juggling the Balls!

Unbelievably five months ago I wrote about the challenges faced working and adapting to “lockdown” because of COVID-19 and now we are somehow in October, and whilst currently we are avoiding “lockdown” we are still adapting to a new working world!

The challenge in the early months of COVID-19 was balancing work with home, whilst having everyone around, and ensuring the needs of clients could be met. A challenge I initially thought would be for a couple of weeks but, which quickly, turned into a couple of months. However, I coped and the new working way evolved. I started work earlier, I home schooled, I carried out motherly duties, hairdressing duties, housekeeper duties and progressed my cases as far as I could, with the courts granting stays on cases where steps to progress just could not be taken. Even defendant insurers were being reasonable!

Then came the next challenge…..the end of lockdown. Hooray! I thought, things will go back to normal…children in school, husband back to work, dad moved back to his own home and I can go back to work to progress my clients’ cases with them getting medical examinations and rehabilitation.

I waited, with excitement, for the ‘announcement’ from the managing partner for the date to return to the office. I was ready….I had seen my hairdresser so no longer looked like captain cavemen, my nails were done and I had bought a new pair of shoes. Yep I was ready!!

But, in the announcement the managing partner said he was not in a rush to get us all back to our desks, that we needed to wait to see what the impact on the virus would be when the schools re-opened, along with the bars and restaurants. Whilst I was disappointed I still thought it would be okay, I believed we’d know in a month or so that all was going to be fine and we’d go back to normal!

The services our firm offers are vast and often clients need their legal advice without delay. The plan to remain in the status quo, with some staff working at home and some staff working in the office, meant the cases could continue to be progressed. Should the worst happen, with someone working in the office receiving a positive test for COVID, those who’d been at home could swap places, meaning the vital services for our clients would continue.

Another few weeks on and the challenge continues. Unfortunately, COVID-19 does not appear to be going anywhere any time soon and so the business, and its people, have had to adapt to a new working world, but we have successfully found a way to do it. Clients are having rehabilitation such as counselling just through a virtual platform rather than a face to face, they can have their medical examinations for the reports required to progress their legal case, even if they too are on the virtual platform, their cases can be progressed and settled, virtual platforms can be used for court hearings, settlement meetings and meetings with barristers. I now have my own office in the spare room where my dad used to be, so when my boss rings he no longer can hear the washing machine in the background!

So seven months on and yes I’ve still got this! I still work at home but, can see clients either in person by appointment or virtually, at a time when it is convenient for them, even if it is outside “normal” office hours, whatever they used to be! I can deal with the court process so deadlines can be met and cases can still be settled. Whilst I personally very much hope the new virtual world will not take over completely, and there will be some return in the future to the old normal working world of one to one contact, it is a way of life that does work.

Whatever the new “normal” may turn out to be, one thing is for sure, I have got this! We are more adaptable than we think and I have a lovely new pair of shoes to wear!!

Extension to the Job Support Scheme

On 24 September 2020, the Chancellor announced the Job Support Scheme (“JSS”), as explained here. In its original form, the JSS would not provide support to businesses that are legally required to close their premises due to Covid-19 restrictions, meaning that employees are unable to work. Therefore, on 9 October, the Chancellor announced an extension to the scheme.

The extension will also apply from 1 November and will help businesses that are legally required to close their premises as a direct result of local or national Covid-19 restrictions, including those businesses that are required to provide only delivery and collection services. The extension will not apply to businesses that are required by local public health authorities to close following a specific workplace Covid-19 outbreak.

Currently, there is no exclusion for large employers based on a financial assessment test (as applies under the original JSS), but there is an expectation that large employers will not claim if they are doing well enough to make capital distributions.

For the extended JSS to apply to an employee, they must be off work for a minimum of seven consecutive days following an instruction from their employer to cease work as a result of restrictions applicable to the employer's premises. In addition, a Real Time Information (“RTI”) submission notifying payment to that employee to HMRC must have been made on or before 23 September.

The government will fund two thirds of eligible employees' normal pay, up to £2,100 per month, with payments to employers being made in arrears and subject to tax. The payments will only be made in respect of periods that an employee has ceased work altogether. The only contribution required from employers under the scheme will be to cover employer national insurance contributions and auto enrolment pension contributions, but employers may make additional the payments if they wish – and, indeed, they should bear in mind that as was the case under the Coronavirus Job Retention Scheme (“CJRS”), unless they have the benefit of a contractual lay-off provision which entitles them to do so, they will need the agreement of the employee, or otherwise appropriately effect an amendment to their employment terms, if they are to lawfully make reduced payments.

An employer does not need to have made claims under the CJRS to make a claim under the extended JSS.

When its premises re-open, an employer can claim under the original JSS if it meets the criteria applicable to that part of the scheme.

As applies in the case of the original JSS, an employee cannot be made redundant or put on notice of redundancy during the period in respect of which their employer is making a claim.

HMRC intends to publish the names of employers that have used the JSS, so that employees will be able to find out if their employer has claimed for them. This has not been a feature of the CJRS.

The extension will sit alongside the original JSS and the Job Retention Bonus scheme. The online claims service is expected to be available from early December 2020.

HM Treasury has published a factsheet with some of the details as to how the extended scheme will work. However, clarification and guidance from HMRC is needed on both parts of the scheme, with detailed HMRC guidance and a Treasury direction yet to be published. For example, it remains to be seen how the two parts of the JSS will work together for employers that re-open and exactly what rules will apply to large employers in respect of the different parts of the scheme.

This leaves employers with little time to put appropriate arrangements in place by 1 November. However, we are assisting employers with arrangements based on the information currently available, to include reserving their position in respect of any developments in the way the JSS is to operate.

Guidance on the Job Retention Bonus

On 8 July 2020, the Chancellor announced that employers will be paid a £1,000 Job Retention Bonus (“JRB”) for each employee they bring back from furlough under the Coronavirus Job Retention Scheme (“CJRS”) and continuously employ through to January 2021. The Chancellor advised that, for businesses to be eligible for the bonus, the employee must be paid at least £520 on average in each month from November 2020 to the end of January 2021 (equivalent to the national insurance lower earnings limit).

The government published a policy paper on the JRB on 31 July 2020 that provided further detail on the JRB and advised that further guidance would be published by the end of September 2020. In fact, the guidance was published on 2 October, in the form of claim guidance and minimum income threshold guidance.

On the same day, the Treasury published its fourth direction on the Coronavirus Job Retention Scheme (CJRS) (dated 1 October 2020). Treasury directions set out formal, legally binding rules as to how the CJRS operates. The fourth direction modifies the CJRS to establish the JRB. It also confirms that all CJRS claims must be made no later than 30 November 2020.

Eligible employers

The claim guidance advises that employers are eligible to claim a JRB in respect of an employee if they have furloughed the employee and made an eligible claim under the CJRS.

The fourth Treasury direction states that a qualifying employer for the purposes of the JRB is one who has:

  • A PAYE scheme registered on HMRC’s real time information (RTI) system for PAYE.
  • Made a CJRS claim in respect of an employee.
  • Delivered the required information to HMRC.

The required information is the PAYE information for relevant payments made by the employer in the period beginning on 6 April 2020 and ending on 5 February 2021.

Employers can still claim if they have made a claim for the employee through the [Job Support Scheme] (JSS).

However, the claim guidance states that employers cannot claim the JRB where they:

  • Have repaid the full CJRS grant to HMRC, regardless of the reason.
  • Made an incorrect CJRS claim in respect of the employee and they were not eligible under that scheme.

Further, no JRB claim may be made “if it is abusive or is otherwise contrary to the exceptional purposes” of the CJRS or the JRB.

Eligible employees

Employers can claim the JRB in respect of employees who:

  • Were previously furloughed and an eligible claim under the CJRS was made in respect of them.
  • Were continuously employed from the end of the last CJRS claim period the employer made in respect of them until 31 January 2021.
  • Are not serving a contractual or statutory notice period in respect of the termination of their employment on 31 January 2021. (The guidance states that this includes employees serving notice of retirement, and on the face of the wording of the Treasury direction it includes notice for any reason, whether provided by the employer or the employee.)
  • Meet the minimum income threshold.

Claim can be made in respect of individuals who are not employees, such as office holders or agency workers, as long as there was a claim under the CJRS in respect of them and the other eligibility criteria of the JRB are met.

Minimum income threshold

Employees must have been paid a total of at least £1,560 gross during the three relevant tax months:

  • 6 November to 5 December 2020.
  • 6 December 2020 to 5 January 2021.
  • 6 January to 5 February 2021.

Employees must have been paid at least one payment of taxable earnings (of any amount) in each of the relevant tax months.

The minimum income threshold criteria apply regardless of:

  • How often an employer pays its employees.
  • Any circumstances that may have reduced an employee’s pay in the relevant tax periods, such as being on statutory leave or unpaid leave.

Only payments included as taxable pay will count towards the minimum income threshold. Taxable pay is the amount reported to HMRC through Full Payment Submissions via RTI. HMRC will check the information submitted through RTI to ensure that employees claimed for have been paid at least the minimum income threshold.

Further guidance on whether an employee will meet the minimum income threshold is set out in the minimum income threshold guidance, which includes examples of different employee scenarios.

TUPE

The claim guidance advises that employers may be eligible to claim under the JRB for employees of a previous business who transferred to them where:

  • The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) applied to the transfer.
  • The PAYE business succession rules applied.
  • The employees were associated with the transfer of a business from the liquidator of a company in compulsory liquidation where TUPE would have applied had the company not been in compulsory liquidation.
  • The employer claiming the JRB furloughed and successfully claimed for the employee under the CJRS as their new employer, and the employee meets all the eligibility criteria for the JRB.

An employer can therefore not claim the JRB for any employees who transfer to it after the CJRS closes on 31 October 2020.

How to claim

Employers will be able to make a claim for the JRB between 15 February and 31 March 2021.

The claim guidance states that it will be updated by the end of January 2021 with details of how employers can access the online claim service on gov.uk.

Before employers can claim the JRB, they will need to:

  • Have reported all payments made to the relevant employees between 6 November 2020 and 5 February 2021 through RTI.
  • Still be enrolled for PAYE online.
  • Comply with their obligation to file PAYE accurately and on time under RTI reporting for all employees between 6 April 2020 and 5 February 2021.
  • Keep their payroll up to date and make sure that they report the leaving date for any employees who stop working for them before the end of the pay period that they leave in.
  • Use the irregular payment pattern indicator in RTI for any employees not being paid regularly.
  • Comply with all requests from HMRC to provide any employee data for past CJRS claims.

When will payment be received?

No information has been provided as yet of how quickly HMRC will process claims. However, the claim guidance states that if HMRC are still checking an employer’s CJRS claims, it can still claim the JRB, but payment may be delayed until after those checks are completed.

Who keeps the payment?

The guidance makes it clear that employers do not have to pay the JRB over to the employee – and, indeed, the indication from the outset has been that JRBs are intended to be paid for the benefit of businesses and that they will therefore indirectly benefit employees by supporting their employer, as opposed to it being intended that they are to be passed on to employees.

Tax treatment

Employers must include payments they receive under the scheme as income when calculating their taxable profits for income tax and corporation tax purposes. However, individuals with employees that are not employed as part of a business (such as nannies or other domestic staff) will not have to pay tax on JRBs.

Shielding - Updated Guidance

Public Health England (“PHE”) has updated its guidance on shielding and protecting people who are clinically extremely vulnerable from Covid-19.

Shielding for the clinically extremely vulnerable was paused in England on 31 July and in Wales on 16 August. On 13 October, PHE updated its Guidance on shielding and protecting extremely vulnerable persons from Covid-19 (“the Guidance”). It aims to strike a better balance between keeping the clinically extremely vulnerable safe and reducing some of the potentially harmful impacts on their mental and social wellbeing associated with the previous strict shielding guidance. The Guidance sets out the steps clinically extremely vulnerable people can take to protect themselves at each local Covid alert level. The conditions automatically covered by the definition of "clinically extremely vulnerable" remain unchanged.

The corresponding guidance in Wales remains unchanged.

The government has stated that it will only reintroduce formal shielding advice for England in the very worst affected local areas for a limited time. This is to only apply to some, not all, very high alert level areas and is to be based on the Chief Medical Officer's advice. The government will write to individuals to inform them if they are advised to shield.

Those required to travel into a different local Covid alert level area for work should follow the guidance for whichever area has the higher alert level.

The clinically extremely vulnerable are advised to work from home where possible, but otherwise go into their workplace – unless they live or work in an area where formal shielding advice is in place and they have received a new shielding notification letter, in which event statutory sick pay will be available to those who qualify for it.

Those who are not advised to shield who cannot perform their normal role from home are advised to discuss temporarily changing their role or working pattern with their employer, for example, to avoid travelling in rush hour.

The Guidance includes a reminder that employers are required to take steps to reduce the risk of exposure to Covid-19 in the workplace, and that in the event that they fail to do so, the Health and Safety Executive and local authorities can take action which can range from the provision of specific advice, issuing enforcement notices, and stopping certain work practices until they are made safe – backed up by the potential for prosecution in the event that employers fail to comply with enforcement notices.

A point not spelt out in the Guidance, but which employers should keep in mind, is that a failure to make reasonable adjustments to enable a clinically extremely vulnerable employee to continue working might constitute a breach of the Equality Act 2010. There is reference, though, to the fact that employees with disabilities who need support to work at home or in the workplace can apply to Access to Work – which can also help assess whether an employee’s needs can be met through reasonable adjustments. Assistance may include a grant to help cover the costs of travel to and from work or practical support in the workplace (which can include the employee’s home); and confidential mental health support is also available.

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16 Oct 2020

Shielding - Updated Guidance

Public Health England (“PHE”) has updated its guidance on shielding and protecting people who are clinica...

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