In this section, you'll find advice about topics including the Job Retention Scheme, alternate duties and leave on reduced pay to help you and your business through the coronavirus outbreak.

Workplace disruption guidance

Are there any measures that we should all be taking now to avoid and/or manage coronavirus infection within our workforce?

Yes, see SELECT’s Employment Guidance for steps you should be taking now, and how to manage absence from work while otherwise maintaining your business within the current restrictions.

 

What can I do to protect my company if the sites my workforce are on start shutting down due to the risk of coronavirus?

As the guidance from government continues to evolve, there remains some unclear messaging over whether work can or should continue on sites. SELECT is urgently seeking clarification from the Scottish Government and will provide further information as soon as we have it.

You should consult with all your workers who may be affected to discuss and agree the steps that the company may take if sites are shut down. You should outline any options that you think may work. These may include some of the measures listed below.

 

Participating in the new Job Retention Scheme

The Government has announced its plans for financial assistance to help employers retain employees for an extended period, although offering no work, and avoid lay-offs. It is called the Job Retention Scheme and, while little information has been published as to how it will work, we have set out below what we do know, which will be updated as more details are released.

What is the Job Retention Scheme?

It involves employers placing their employees on “furlough”. This is a term which is typically used in the US and essentially means putting employees on temporary leave of absence where they do not work and do not receive pay, but are retained on your books to be brought back in when you need them. Employers who do this will be able to obtain a grant from the Government to cover 80% of “furloughed employees” wages, to a maximum of £2500 per employee per month.

Which employers can access the scheme?

All employers can access it; there is no restriction on size or type.

How do I get the Government grant?

Guidance states that you will need to designate which of your workforce will be furloughed employees and then submit that information to HMRC, along with each employee’s earnings. You will then receive a grant to cover the 80% wages. More information is awaited from the Government on the online portal to be used to submit the information and what other information may be needed. The Chancellor has stated he hopes the first grants will be paid by the end of April 2020, and they will be backdated to 1 March 2020. The scheme is initially intended to run for three months but may be extended.

Which employees can be furloughed?

Theoretically any employee can be furloughed. They need to be on PAYE in order for you to be able to claim the grant for their wages. Guidance states that your ability to furlough an employee depends on their contract. It is not likely that employee contracts will include a specific right to use furlough. Although 80% of wages may not be an initially attractive option next to full pay, it is likely to be more attractive than redundancy which may be the end result if alternative options cannot be found. It may also be useful for employees who are struggling to find childcare.

You need to designate employees as furloughed, which means it is your choice. However, if you are not placing everyone on furlough, you should consider carefully who it should be. Think about whose skills will continue to be in demand through this difficult period.

While you may assume that the best thing to do is furlough those employees labelled as high risk by the Government, forcing them on to furlough without their input, and therefore forcing them on to 80% wages, may result in discrimination claims from those who allege they were made to do it because of their age, disability or pregnancy.

Where you need to select employees for furlough, it may be best to ask for volunteers across the workforce and if any high risk employees, who had previously been risk assessed as fine to still be in work, put themselves forward, it may well be appropriate to choose them first. There does not appear to be a maximum or minimum number of employees who can be furloughed.

An example letter that could be sent to a furloughed employee can be downloaded here.

If I put employees on furlough and I get a grant to cover 80% of their wages, do I have to make up the other 20%?

No, there is no requirement to do this, but you can if you wish.

 

Training

If there is a gap in the skills and qualifications of your workforce or they need to refresh or broaden their skills, a temporary reduction in workload may be a good time to for them to take on training. While most providers are no longer running ‘in-person’ training, online training on a raft of areas is available ranging from technical skills to soft skills like supervision and management skills.

 

Alternative duties

If you are able to provide work that is outside your workers’ normal and contractual duties, you should consult with your workers to:

  1. Explain the sort of alternatives duties you can offer
  2. Seek their input on any alternative duties that may be available
  3. Details of any trial periods that may apply

You should ask your workforce to:

  1. Comment on the proposals
  2. Raise and questions they may have
  3. Inform you of any preferences they may have about how and when they would any alternative duties

You should provide your workforce with the contact details of whom to contact if they have any questions, suggestions or comments about the proposals and confirm any terms that are agreed, in writing to each worker who may be affected.

 

Working reduced hours

Where you have some work but it is not enough to keep the whole workforce engaged for their normal contractual hours, reduced hours working may be a sensible way to ensure that the work available is fairly spread out among your workforce.

You may wish to seek agreement on reduced hours rather than short-time working (see section 4 below for more information on short-time working) for the following main reasons:

  • Reduced-hours working can be agreed with and implemented for both employees and workers whilst the statutory provisions on short-time working are applicable to employees only
  • Reduced-hours working is more flexible and can cover any reduction in working time, whereas short-time working is limited to where the working hours are reduced such that the employee will receive less than half their normal pay
  • Reduced-hours working can apply indefinitely or for any period of time agreed with the workforce
  • There is no entitlement under reduced-hours working for workers to claim redundancy pay. Under short-time working provisions, by contrast, after four or more consecutive weeks or a series of six or more weeks (of which not more than three were consecutive weeks) of short-time working within a period of 13 weeks (see section 4 below) an employee can claim for redundancy.

You should, as a first step, look to stopping any non-contractual overtime subject to client requirement. You should then consult your workforce with a view to reaching an agreement on the introduction of reduced-hours working together with when and how it would be implemented.

The workforce consultation about your proposals for reduced-hours working should include:

  1. When reduced-hours working would be triggered
  2. Details of any trial period that would apply
  3. The working arrangements would be kept under review and workers will be notified of any changes that may need to be made
  4. The arrangements would be subject to client requirements
  5. How the work would be allocated (e.g. one week on/one week off or a set number of days/hours per week for all workers, working mornings only or splitting the workforce so that half work in the mornings and the remaining half work in the afternoons etc)
  6. If you can make such a commitment, explain that this will not affect their annual leave entitlement and pay for the annual leave
  7. Any other impact of the proposed arrangements on their work or contract.
  8. If the company needs to make redundancies, any notice and redundancy pay will be calculated on their normal contractual hours and not on the reduced hours.

You should ask your workforce to:

  1. Comment on the proposals
  2. Liaise any questions they may have
  3. Inform you of any preferences they may have about how and when they would be allocated work

You should provide your workforce with the contact details of whom to contact if they have any questions, suggestions or comments about the proposals and confirm any terms that are agreed, in writing to each worker who may be affected.

 

Annual Leave

One of the other options that you may wish to consider is the possibility of workers taking annual leave during a period when you do not have enough work for the whole workforce.

Under normal circumstances, if you require a worker to take annual leave at a particular time, you must give the worker twice as much notice as the number of days leave you require them to take. For example, if you require them to take a week of annual leave, you must give notice of this two weeks beforehand.

Among the issues you may need to discuss about annual leave when consulting your workforce are:

  1. The possibility of giving less than the notice required by law when you require workers to take annual leave. In other words, requiring workers to take annual leave at short notice of, for example, a week
  2. Staggering the annual leave among the workforce so that they all use up the same amount of annual leave as well as having the same opportunity to work. Examples may include the possibility of one set of workers working one week while another set is on annual leave and swapping this for the following week. Advising that any such arrangements would be subject to client requirements
  3. The impact on the company’s finances/cash flow if all, or the majority, of workers took annual leave at the same time
  4. Whether any of the workers would prefer to take other leave at present and save some annual leave for when they are able to return to work.

You should ask your workforce to:

  1. Comment on the proposals
  2. Raise and questions they may have
  3. Inform you of any preferences they may have about how and when they would be like to take annual leave

You should provide your workforce with the contact details of whom to contact if they have any questions, suggestions or comments about the proposals and confirm any terms that are agreed, in writing to each worker who may be affected.

 

Leave on reduced pay

If you are unable to provide work after your workforce has used up its annual leave entitlement, you may wish to consider some leave on reduced pay.

You should consult your workforce with a view to reaching an agreement on the introduction of leave on reduced pay together with when and how it would be implemented.

The workforce consultation about your proposals for leave on reduced pay working should include:

  1. When the leave on reduced pay would be triggered
  2. How length of time that the leave on reduced pay would apply
  3. Any notice to be given for the implementation of leave on reduced pay
  4. Any review periods to allow you to decide whether to continue with the ongoing arrangements or to move to lower or unpaid leave
  5. The level of pay e.g. a percentage of each worker’s contractual pay or a flat rate for all workers
  6. Any tapering arrangements, e.g. half pay for two weeks then 25% of pay for two further weeks then unpaid leave
  7. Any other impact of the proposed arrangements on their work or contract. If the company needs to make redundancies, any notice and redundancy pay will be calculated on their normal contractual hours and not on the reduced hours.

You should ask your workforce to:

  1. Comment on the proposals
  2. Raise and questions they may have

You should provide your workforce with the contact details of whom to contact if they have any questions, suggestions or comments about the proposals and confirm any terms that are agreed, in writing to each worker who may be affected.

 

Unpaid Leave

As the Coronavirus outbreak and its impact on the UK is largely unknown, it is advisable to discuss the possibility of your workers taking unpaid leave if the situation requires it.

Among the issues you may wish to discuss about annual leave when consulting your workforce are:

  1. When unpaid leave will be triggered
  2. The notice that you will give prior to implementing unpaid leave
  3. Any other impact of the proposed arrangements on their work or contract.
  4. You may also wish to give any assurances you are able to, on if the company needs to make redundancies, any notice and redundancy pay will be calculated on their pay for normal contractual hours.

You should ask your workforce to:

  1. Comment on the proposals
  2. Raise and questions they may have

You should provide your workforce with the contact details of whom to contact if they have any questions, suggestions or comments about the proposals and confirm any terms that are agreed, in writing to each worker who may be affected.

 

What are temporary lay-off and short-time working? Are there any special rules that apply?

Temporary lay-off occurs when an employee whose pay is based on being provided with work by you, when you are not able to provide such work.

You cannot claim for a furloughed employee’s 80% wage grant under the Job Retention Scheme if the employee has been laid off. If you have already taken the step to utilise lay off, you can get in touch with those employees and agree to change their current status from lay off to furlough. This would simply involve changing their pay arrangements from nothing (if not entitled to SGP), or SGP to 80% wages, as they are already not working.

Similarly, short-time working cannot continue during furlough, as during furlough no work at all should be carried out. You may wish to re-organise reduced work patterns to allow for some of those on short-time working to go back to full hours and the others to be furloughed. You should discuss this with employees first.

Those who are working under lay off or short-time working arrangements are not entitled to any pay other than statutory guaranteed pay for the first five days when no work is provided in a 13-week period. Currently the statutory guaranteed pay is £29 per day and will increase to £30 per day with effect from 6 April 2020.

Short-time working occurs when employees are not provided with work for number of contractual days each week, or for a number of hours during a working day and, as a result, they receive less than half their normal weekly pay.

There is no automatic right for employers to apply temporary lay-off or short-time working and under normal circumstances, not providing an employee with any work or reducing the employee’s weekly working hours and pay would leave the employer open to claims of breach of contract, constructive unfair dismissal and unlawful deductions from wages. Furthermore, the SJIB National Working Rules do not include any provision to implement these types of working arrangements.

In order to avoid being in breach of employment law provisions, there must either be a contractual right allowing the implementation of temporary lay-off or short-time working; or an agreement (confirmed in writing) between the employer and the employee(s) to introduce temporary lay-off before it is implemented.

An employee who has been on temporary lay-off or short-time working for four or more consecutive weeks or a series of six or more weeks (of which not more than three were consecutive weeks) within a period of thirteen weeks has the right to give you notice to terminate the contract of employment and claim redundancy pay. This is known as the notice of intention to claim.

The notice of intention to claim served by the employee must be in writing and must be the contractual notice or, where there is no contractual notice period or if the contractual notice is less than a week, the notice must be one week.

You can give counter notice, within seven days after the employee has served the notice of intention to claim. The purpose of the counter-notice is to inform the employee that you will contest the claim of liability to pay the employee any redundancy pay, and where the employee does not withdraw such notice he or she will not be entitled to a redundancy payment.

In order to serve a valid counter-notice, you must reasonably expect that the employee would, no later than four weeks after that date, enter into a period of at least thirteen weeks of employment where the employee would not be laid off or have been on short-time, and you must give a counter-notice no later than seven days after the original notice was made by the employee.

 

What’s the difference between an employee and a worker?

The above guidance refers to employees for some sections and workers for others as certain provisions apply only to employees (i.e. those with a contract of employment), whilst others apply to the wider group of workers who are defined as those who are working under:

  • A contract of employment (i.e. an employee); or
  • Any other contract where the individual undertakes to perform personally any work or services for the other party of the contract, where the other party is not by virtue of the contract a client or customer of any profession or business undertaking carried on by the individual.

 

What if I need to make my employees redundant?

The Government has asked employers to avoid making their employees redundant and has said that it will introduce measures pay 80% of employee’s wages up to a cap of £2,500 per month.

However, if as a SELECT Member you have no alternative other than to consider redundancy, please contact Fiona Cornwall, Employment Affairs Operations Manager, at fiona.cornwall@select.org.uk or Nic Jengaenga, Employment Affairs Adviser, at nicola.jengaenga@select.org.uk.