Job Retention Scheme – Latest Update
At the back end of last week, the government released the latest version of their CJRS guidance. The guidance is now is accompanied by a booklet setting out how to make a claim and broadly speaking, is unchanged, from previous iterations however there are two new and welcomed developments.
Representation at Disciplinary, Grievance and Redundancy meetings during Furlough Leave
The new version of the guidance makes clear that whilst on furlough, employees who are union or non-union representatives may undertake duties and activities for the purpose of individual or collective representation of employees or other workers. However in doing this, they must not provide services to or generate revenue for, or on behalf of their employer’s organisation or a linked or associated organisation.
Whilst the government’s guidance could have been clearer in terms of whether those “non-union” representatives had to have been specifically and previously elected for this purpose, this is perhaps an unlikely requirement. It therefore seems that it will not be a breach of the furlough leave requirements if an employee (whether previously elected as a representative or not) were to accompany a colleague at a disciplinary or grievance meeting or a redundancy consultation. We would however, recommend that an employee who is required to act a companion in this regard is paid full pay for their time.
Given the way in which the latest guidance is worded we would recommend that you take advice from us in respect of any formal process that you may need to follow with your employees during the furlough leave period so that we can ensure that all considerations are taken into account before you proceed. In general terms though, we would say the following:
- The current guidance extends to employee “representation” only. Line managers and HR managers who are on furlough leave would be unable to supervise any formal process. This would amount to working or providing a service to the employer. Only those employees who are not on furlough should run the process
- Employees who are being disciplined or who have raised a grievance can probably participate in their own hearing even if they are also furloughed. It seems unlikely that participating in one’s own grievance or disciplinary process is providing services to the employer.
- When it comes to witnesses, in the absence of any specific guidance, staff who are witnesses in proceedings involving a colleague could be providing services to the employer in breach of the furlough restrictions. To avoid this risk employers may be advised to place the proceedings on hold until any furlough period has ended.
Directors on Furlough
The latest guidance states that company directors who only pay themselves once a year are now also eligible to claim under the CJRS as long as they meet the relevant conditions, which includes being notified to HMRC on an RTI submission on or before 19 March 2020, which relates to a payment of earnings in the 19/20 tax year.
Regulations governing the Calculation of Maternity and other Parental Payments for Furloughed Employees
On 25th April, The Maternity Allowance, Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay (Normal Weekly Earnings etc.) (Coronavirus) (Amendment) Regulations 2020 (SI 2020/450) came into force.
The Regulations confirm that in the case of SMP, where a woman is on furlough during part or all of the relevant maternity period and her normal pay is reduced as a result, her normal weekly earnings for the purposes of eligibility and the rate payable for statutory maternity pay will be calculated based on the pay she would have received if she were not furloughed (i.e. 100% of her wage and not 80%).
The same principle applies to other parental payments.
The government’s latest guidance can be found here and the booklet advice here.
As always, if you would like to discuss any of these developments or anything to do with furlough leave please contact a member of the Employment Law Team on 01274 864999.