Monthly Archives: June 2020

New HMRC Guidance: Pay Coronavirus Job Retention Scheme (CJRS) Grants Back

A new Guide was published on 26 June 2020 but was somewhat eclipsed by the Third Direction being published later that same day.

This New Guide sets out the further detail of how to pay back if your business has over claimed in the CJRS.

We already knew the first way of repaying by correcting it in the next claim.

This Guide provides details of the second way (only when the business is not making a further claim) of making a payment direct to HMRC.

The Guide can be down loaded HERE

Third Treasury Direction

Third Treasury Direction (26 June 2020)

Following the extension to the Scheme to 31 October 2020 and the updated Guidance on 12 June 2020, the Chancellor signed a further (Third) Treasury Direction reflecting the extension to the Scheme to 31 October 2020. This much-expanded Direction was published on 26 June 2020 and sets out technical detail of the Flexible Furlough Scheme available from 1 July 2020 to 31 October 2020.

It is important to remember that it is the Treasury Directions that provide the legal framework for the Scheme and will take legal precedence over the Guidance.

The Third Treasury Direction consists of 43 clauses (up from 16 clauses in Second Treasury Direction) and has 30 pages. The previous Directions will continue to have effect, except where modified by this Third Direction.

It is divided into two parts: the first part contains the rules relating to the Furlough Scheme up to 30 June 2020 (Paragraphs 3 – 6); the second part (Paragraphs 7 – 43) sets out the rules for the Flexible Furlough Scheme available until 31 October 2020.

We have complied the following documents that hopefully will aid readers in understanding the Third Direction:

 

Step-by-Step Guide for Employers: Claim for your Employees’ Wages through CRJS

This 7 Step Guide has been updated with more information about flexible furlough and over payments. The Guide explains the information needed to make a CRJS claim and summarises the processes involved.

The 7 Steps are:

Step 1: Check you can claim

Step 2: Decide who will claim (an agent or you)

Step 3: Prepare to make your claim

Step 4: Calculate your claim

Step 5: Make your claim

Step 6: After you’ve claimed

Step 7: Making additional claims

The Guide can be downloaded (in pdf form) HERE

One other Guide was also updated confirming that if you are claiming for an employee with a temporary National Insurance number, you should contact HMRC.

GUIDE: Temporary National Insurance No

Coronavirus (COVID-19): NI Regulations – Latest Position

 

On 28 March 2020, the Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020 were implemented.  The Department of Health is required to review the legislation every 21 days and has published guidance on the restrictions.

The NI Executive have been making changes to the restrictions as and when it has been in the public’s interest to safely do so.  The table below shows the latest information on the current changes to the restrictions that have been put in place by the NI Executive due to the Coronavirus.  The table can also be accessed HERE

The majority of Northern Ireland’s COVID-19 restrictions are detailed in the regulations – these regulations, together with the revisions are available on the Department of Health website – Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 

Recovery Plan

A five stage recovery plan to ease the current restrictions was unveiled by the Northern Ireland Executive on 12 May 2020.  The five stages of the plan include steps for the following six different sectors:

Full details of the five stage recovery plan can also be accessed HERE

 

 

 

 

 

Northern Ireland’s Public Consultation on Parental Bereavement Leave and Pay (15 June 2020)

Introduction

Presently, Northern Ireland provides no legal entitlement to Parental Bereavement Leave or Pay for employed parents following the loss of a child.

In GB, Parental Bereavement Leave and Pay legislation was introduced on 6 April 2020; the current statutory payment is the lower of £150.20 or 90% of weekly earnings. Of this, at least 92% is recoverable from HMRC.

The Department of Economy stated in February 2020 that they wished to introduce similar measures in Northern Ireland as a matter of urgency. It has now launched this Public Consultation, which closes on 10 August 2020.

The Consultation Documents can be accessed HERE

There is also a helpful FAQ document which explains the key issues and how the right operates in GB.

We now welcome views from our Members on the areas set out below which will help form the basis of our Response.

The Consultation seeks views on:

  1. The definition of a ‘bereaved parent.’

In GB, the definition of a bereaved parent is centred on the notion of a ‘primary carer whose relationship with the child is parental in nature’. This broader definition extends the scope of the Parental Bereavement Leave and Pay beyond legally recognised parents. It extends eligibility to people such as legal guardians and others who have a legally recognised ‘parental’ relationship with a child.

The Consultation seeks view on all the parental relationships and who else should be included in the definition and why?

 

  1. Defining how and when Parental Bereavement Pay and Leave can be taken.

The Department recognises the need to strike the right balance between allowing as much flexibility as possible for bereaved parents with varying needs to grieve, and the need for employers to have a degree of certainty over when and how their employees can take Parental Bereavement Leave and Pay.

The GB Parental Bereavement Leave and Pay legislation provides for 2 weeks statutory paid leave. Parents can choose to take the 2 weeks consecutively or non-consecutively in blocks of weeks over a period of 56 weeks from the death of a child.

Do you think these are suitable for Northern Ireland or are there alternative provisions that would be more suitable for bereaved parents and employers here?

 

  1. Identifying what level and length of notice period would be necessary.

In GB, the level and length of notice varies as follows:

0 to 8 weeks after the child’s death or stillbirth

An employee must give notice before the time they would normally start work on the first day of the period they want to take off work or, in the case where it is not reasonably practicable for the employee to give such notice, then notice should be given as soon as it is reasonably practicable.

9 to 56 weeks after the child’s death or stillbirth

An employee must give at least one week’s notice before the start of the week or weeks they want to take off work.

Are similar provisions right for Northern Ireland or are there alternative provisions that would be more suitable for bereaved parents and employers here?

 

  1. Establishing what evidence may be required to show that an employee is entitled to leave and pay under the regulations.

The GB consultation sought views on what evidential requirement would be needed for an employee wishing to take Parental Bereavement Leave and Pay.

There, the vast majority of respondents said that evidence should mirror existing family leave entitlements. For some family leave entitlements, an employee must provide a written declaration of entitlement and in others, an employee is only required to provide evidence of entitlement if their employer asks for it.

What, if any, evidence should be required for entitlement to Parental Bereavement Leave and Pay in Northern Ireland?

 

  1. Parental Bereavement: statutory provision for payment

Parental Bereavement Pay in GB (for 2020) is paid at a statutory rate of £150.20 or 90% of weekly earnings (whichever is lower). Of this at least 92% is recoverable from HMRC.

To be eligible to receive the statutory payment in GB you must have served at least 26 weeks continuous service with your employer.

Do you agree with: 

 

  1. The Consultations states that over the past few years GB has made changes to employment policy and law while the position in Northern Ireland has remained static.

The Department is seeking views for other employment rights issues that could be considered as part of an employment rights strategy in Northern Ireland. It is intended that this strategy will take a more strategic, longer-term look at what employment law changes we should be making in Northern Ireland.

Commentary

We expect the absolute earliest that this legislation could be brought into force is October 2020, which is feasible if identical measures to GB are adopted.

Whilst we recognise that it is likely that Northern Ireland will adopt the identical counterpart measures in place in GB we are still keen to hear from any Member who has views on the proposals and the suggestions for other laws in which Northern Ireland could align itself to GB.

Members may recall that the previous Economy Minster was keen to have bespoke laws for Northern Ireland and in some instances departed significantly to the laws implemented in GB. However, the current Minister seems keen to align Northern Ireland more closely to GB. Therefore, the last question (6), seeking your feedback and comments on other employment law changes could have a real influence on the future direction of our economy.

Please send your responses to info@eefni.org

 

 

 

Flexible Furlough Guidance (12 June 2020)

Introduction

HMRC has published the long awaited Guidance on how the Coronavirus Job Retention Scheme is changing from 1 July 2020. The details are now contained in a series of updates to existing Guides and publication of new Guides. A number of detailed worked examples have also been provided to help demonstrate calculations and a summary page of the changes.

This commentary is divided into the following 4 parts; 

  1. Guides / Documents containing the changes.
  2. What we knew before this Guidance.
  3. What’s new and what has been clarified.
  4. Concluding comments.

GUIDES / DOCUMENTS AVAILABLE

The details of how the Scheme will operate is now spread out into the following Guides and documents:

  1. Updated Guide: Check if you can claim
  2. Updated Guide: Check which employees you can put on furlough
  3. New Guide: Steps to take before calculating your claim using the CJRS
  4. New Guide: Calculate how much you can claim
  5. Updated Guide: Claim for your employee’s wages online
  6. Updated Guide: Report a payment in PAYE Real Time Information
  7. New Document: Summary of the main changes
  8. New Document: Flexibly Furlough Worked Example
  9. Updated Document: Worked examples

WHAT WE KNEW BEFORE THIS GUIDANCE

On 29 May 2020 HMRC provided the broad details of how the Coronavirus Job Retention Scheme (CJRS) would change.

This confirmed that:

WHAT’S NEW AND WHAT HAS BEEN CLARIFIED?

 Agreement

The Guidance confirms that if you flexibly furlough employees, you will need to agree this with the employee (or reach collective agreement with a trade union) and keep a new written agreement that confirms the new furlough arrangement.

This may mean entering into a new agreement each time the flexible furlough working patterns changes unless your new agreement is carefully drafted and accommodates further changes. Whilst a verbal agreement with the employee is sufficient, it still must be recorded in writing. The new flexi furlough agreement should reflect the new working arrangement that has been agreed.

Flexible Furlough / Fully Furloughed

The Guidance confirms that you can continue to fully furlough employees if you wish and can have a combination of employees flexibly furloughed, fully furloughed and/or working.

Minimum Furlough Periods

Any employees you place on furlough prior on or before 30 June 2020 must be furloughed for a minimum of 3 consecutive weeks.

This clarifies a point that was previously ambiguous i.e. whether a previously furloughed employee could start a new furlough period after 11 June 2020 as there was no longer a full 3-week period. As we expected, this is permitted. The guidance clarifies that all furlough periods commencing in June 2020 must still be for a minimum of 3 consecutive weeks despite the fact that that period will end after 1 July 2020.

For example, a previously furloughed employee can start a new furlough period on 22 June 2020 that then has to continue for at least 3 consecutive weeks ending on or after 12 July 2020. After 12 July 2020, the employee can be flexibly furloughed for any period. However, after 1 July 2020, employers cannot make claims that cross calendar months, so the employer will need to make a separate claim for the period up to 30 June 2020.

From 1 July 2020, agreed flexible furlough agreements can last any amount of time. Employees can enter into a flexible furlough agreement more than once.

Although flexible furlough agreements can last any amount of time, unless otherwise specified the period that you claim for must be for a minimum claim period of 7 calendar days.

Holidays

Despite some commentary that holidays would be prohibited, the Guidance confirms that furloughed employees can continue to take holiday whilst on furlough. The Guidance continues to state that the position with holidays will be kept under review and therefore this could change.

The Guidance acknowledges that the employer and employee can agree to vary holiday entitlement as part of the furlough agreement. In relation to foregoing or buying back holidays, businesses can only do so in relation to any holidays above 28 days / 5.6 weeks.

The Guidance also states that employers have the flexibility to restrict when leave can be taken if there is a business need and the correct notice is given. However care needs to be taken when fixing holidays that previously the employee would have had discretion to choose. In those circumstances we suggest that you may want to contact us for further advise.

Training

The Guidance is unchanged in relation to training and so employees can continue to complete training during any furloughed periods.

Returning from Maternity, Shared Parental, Adoption, Paternity Or Parental Bereavement Leave after 10 June

HMRC previously confirmed that you can furlough those returning from the above types of statutory leave after 10 June 2020 even if you are furloughing them for the first time.

The guidance states that the following eligibility conditions will apply that:

In addition the Guidance permits you to adjust the cap by these newly furloughed employees. Its states that ‘employees you are furloughing for the first time (due to them returning from parental leave) should be added to any previous maximum.’ This means the maximum number of employees you can claim for is the maximum you claimed prior to 30 June 2020, plus any employees that you are furloughing for the first time due to them returning from parental leave.

Steps to take before calculating your claim using the Coronavirus Job Retention Scheme

This new Guide (number 3 above) is an important one to read for those engaged in calculating the wages and submitting claims. In addition those responsible for doing the calculations will also want to read the Worked Examples including how to calculate the amount you should claim for an employee who is flexibly furloughed.

This Guide covers:

Claim Periods

This is a complicated section setting out a number of do’s and don’t’.

The first day that you can make claims for days in July will be 1 July 2020; it is not possible to claim for periods in July before this point. The last day you can submit a claim for claim periods ending on or before 30 June is 31 July 2020.  After 1 July 2020, you cannot make claims that cross calendar months.

Where a previously furloughed employee’s three consecutive week period ends after 1 July 2020, you will need to make separate claims to cover the days in June and the days in July, even if the employee is being furloughed continuously.

Claim periods starting on or after 1 July 2020 must start and end within the same calendar month.

Although flexible furlough agreements can last any amount of time, unless otherwise specified, the period that you claim for must be for a minimum claim period of seven calendar days. This may mean that your claim periods will differ from the pay periods you use.

When claiming for employees who are flexibly furloughed you should not claim until you are sure of the exact number of hours they will have worked in the claim period. However it does also state that if your employee works more hours than you have informed HMRC you should correct it in your subsequent claim. You will be asked to declare this in your next claim that will then be reduced by the amount of overpayment.

Claim periods must be for a minimum of 7 days. You can only claim for a period of less than seven days, if the period you are claiming for includes either the first or last day of the calendar month, and you have already claimed for the period ending immediately before it.

Working out your employee’s usual and furloughed hours

This will only apply if the employee is flexibly-furloughed and not if fully furloughed.

HMRC distinguishes between employees with fixed / usual hours and those with variable hours. Variable hours are described as those who do not have contracted fixed hours or their pay depends on the number of hours they work. It provides a step-by-step method for working out variable hours and a hyperlink to other examples.

The Guidance states that the working pattern does not have to match their pay period and provides the example that an employee can be contracted to work 40 hours per week but paid monthly.

Calculating how much you can claim

This Guide (number 4 above) then sets out the steps to calculate your furlough claim in any claim period. It breakdowns the calculations for: wages; national insurance contributions and; pension calculations. It is another Guide that those responsible for the calculations will want to know.

Whilst a detailed summary of it is beyond this commentary one example may help understand the basis of the calculations:

‘Work out your employee’s minimum furlough pay

The minimum furlough pay is the lesser of either:

If your employee is flexibly furloughed the minimum furlough pay depends on their working and furloughed hours.

  1. Start with the lesser of:
  1. Multiply by the employee’s furloughed hours.
  2. Divide by the employee’s usual hours.

This is the minimum amount you must pay your employee for the time they are recorded as being on furlough. You can choose to pay more than this but you do not have to.

If any of the furlough hours are taken as paid holiday or annual leave, you need to top up the pay for these hours to the employee’s full contracted rate.

Work out how much you can claim for your employee’s furlough pay

For periods ending on or before 31 August 2020 you can claim a grant for the full amount of the minimum furlough pay.

For periods starting on or after 1 September you will need to calculate the grant amount as follows:

  1. Start with the amount of minimum furlough pay.
  2. Divide by 80.
  3. Depending on which month you’re claiming for, multiply by:

A couple of noteworthy points:

We understand that HMRC will be providing a file upload template to complete for claim periods starting on or after 1 July 2020.

CONCLUDING COMMENTS

Notwithstanding that the calculations and claims under the new Flexible Furlough Scheme are fiendishly complicated, the flexible furloughing scheme itself is very welcome. It will allow your Company to bring the workforce back in a phased way while continuing to receive financial support under the Scheme. Hopefully it will also allow Companies some breathing space to take stock, recover, retain jobs and avoid potential redundancies, if not all then some.

Companies should now:

As always we will continue to keep you updated with any developments that occur and please contact the Legal Team if you have any questions.

Presidential Guidance – 11 June 2020

We have received the attached communication from the President of the Office of the Industrial and Fair Employment Tribunal regarding the position with Final Hearings and Tribunal Hearings.

This Presidential Guidance confirms that all Final Hearings and Preliminary Hearings to determine matters such as jurisdictional issues (such as time points etc) or whether a deposit order should be made, which are currently listed from 1 July 2020 to 30 October 2020, are now postponed with immediate effect.

It also sets out the Tribunal’s intention to list Review Case Management Preliminary Hearings in all cases subject to the implementation of arrangements to facilitate remote hearings.

If Members have any questions about a case please do not hesitate to contact us. We will continue to keep you updated as and when any further information is received.

Presidential Guidance 11 June 2020

Exception To The 10 June Cut Off Date For Furloughing

Yesterday, HMRC announced an exception to today’s (10 June) deadline date for furloughing. The exception applies to parents on statutory maternity and paternity leave returning to work in the coming months who will still be eligible to be furloughed even, after 10 June cut off date.

Such employees will only be able to be furloughed if they work for an employer who has previously furloughed employees.

Only limited details have been provided in HMRC’s announcement; more details will be published on 12 June 2020.

The Government’s announcement can be accessed HERE

 

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