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Are you starting to think about reopening your business and bringing your staff back to work?

Mansfield and Ashfield 2020 member Nicky Silver of Nicky Silver HR has the following tips to help you think about what you will need to get your employees back to work.

www.nickysilverhr.co.uk

This guidance covers:

  1. Furlough scheme update as at 29th May 2020
  2. Preparing to return to work
  3. Options to consider if there is no work available
  4. What if employees are refusing to come back to work?
  5. Holidays 
  6. What if an employee goes abroad after 8th June 2020 and needs to Quarantine for 14 days on their return?

 

  1. Furlough Scheme (CJRS) update 29th May 2020

Key dates

  • 10th June 2020 – This is the last date that employees who have NOT previously been Furloughed can be put onto the scheme.
  • 12th June 2020 – Further guidance on the new Flexible Furloughing Scheme and how employers should calculate claims will be published.
  • 30th June 2020 – The Furlough scheme closes to new claims.
  • 1st July 2020 – New Flexible Furloughing Scheme opens. Employees can return to work on either their normal contracted hours or on a reduced hours basis. They must be paid at their full contractual rate of pay for any hours worked. For any contracted hours or days that the employee is NOT required to work, the employer can still claim Furlough at 80% (up to a cap of £2,500) and reimbursement of employer National Insurance (NICs) and minimum Employer Pension contributions (where eligible).
  • 31st July 2020 – All claims under the “old” scheme must be submitted by this date, including reimbursement of National Insurance and 3% pension contributions where eligible (NOTE: it is reported that approximately 40% of businesses haven’t claimed back National Insurance and Employer Pension contributions as yet. Find out how to calculate 80% of your employee’s wages, National Insurance Contributions (NICs) and Employer Pension contributions if you’ve Furloughed staff due to coronavirus (COVID-19) at Claiming Furlough, NICs and Employer Pension contributions con)
  • 1st to 31st August 2020 – HMRC will reimburse 80% of wages for any days not worked. however, employers will no longer be able to reclaim employer NICs and minimum pension contributions.
  • 1st to 30th September 2020 – HMRC will pay 70% of wages up to a cap of £2,187.50 per month, with employers being required to pay 10% (to make up to 80% in total, up to a cap of £2,500).
  • 1st to 31st October 2020 – HMRC will pay 60% of their wages up to a cap of £1,875 per month, with employers being required to pay 20% of wages (to make up to 80% total, up to a cap of £2,500).
  • 31 October 2020 – The Furlough (CJRS) scheme closes.

Flexible Furlough Scheme – Important points

  • To be eligible for the grant, employers must agree any new Flexible Furloughing arrangements with their employee and confirm that agreement in writing (NOTE: make sure that you obtained agreement in writing to Furlough your employees in the first place and that if you extended or stopped their time on Furlough, that you confirmed that in writing too – please see my Resources section at the end of this Factsheet if you need any free template letters).
  • Employers will be able to make their first claim under the new scheme from 1 July 2020.
  • Employees can remain on Furlough without returning to work part time.
  • Wages can still be topped up to 100% at the employer’s expense.
  • When making a claim. employers will need to report any hours worked and the usual hours an employee would be expected to work in a claim period.
  • Claim periods will be a minimum of one week, but can be longer.
  • Claims cannot overlap calendar months, due to the scheme terms changing each month.
  • Retain Furlough related records for 6 years.

Fact Sheet – SEISS and Flexible Furlough and SEISS update 29 05 2020

  1. Preparing to return to work
  • This isn’t one size fits all. Plans will be specific to your business. Consider the short term and longer term requirements of the business. What work needs to be done, by when?
  • Be prepared to be flexible and adjust your plans as you go along – we don’t know what is round the corner (another lockdown?).
  • Prepare for disruption to your plans due to the Test and Trace service advising employees to self isolate or staff having to go into quarantine after a holiday (see section 6). What is your plan B? Who will cover the work of individuals if they can’t do their jobs as planned?
  • Communication is key. Be open and honest with your staff and give as much information as possible. Employees will be more inclined to raise a grievance if they feel they haven’t been treated fairly. So demonstrate to them what you are doing and why you are doing it.
  • Keep staff updated on any plans and safeguarding measures being put in place.
  • Give as much notice as possible of any changes that will affect them.
  • Who do you need to return to work? If you don’t need all staff to return, use a list of criteria to objectively assess and fairly identify the employees who will return first eg skills to do the required job, experience, attendance record, qualifications, disciplinary record, attitude to work etc.
  • Consider:
    • Who your critical workers are and who you want to retain in the business (those with specific skills, hard to replace, bring value to the business)?
    • Do you have any staff who have been told to shield for 12 weeks? Have they been told to continue shielding? They can be placed on Furlough at the company’s discretion.
    • Can people be temporarily redeployed to alternative work?
    • Encourage staff to complete training while furloughed to help them prepare for their return. Think about whether your staff need new skills such as training in new H&S processes or rules (social distancing, handwashing, kitchen usage etc) technology changes (eg using Zoom), mental health / anxiety /  stress management etc? Note: Training time must be paid at least their relevant National Minimum Wage.
    • Some employees may feel stressed or anxious about returning to work:
      • Provide all employees with access to Mental Health / Wellbeing courses.
      • Arrange Mental Health First Aider Training.
  • Once you have decided who is coming back, write to employees to confirm when they will be coming off furlough and returning to work (part time or full time).
  • Make sure you
  • If you have anyone who was in their Probationary Period prior to being furloughed, write to them to explain that their Probation has been on hold from [xx date] and will recommence on [xx date] until [xx date].
  • Document everything and keep records for at least 6 years in case of employee disputes or audits by HMRC eg decision making processes, emails, notes of meetings, letters, briefings / communications, evidence of work volumes etc
  1. Options to consider if there is no work available
  • Furlough – Put employees onto Furlough for a further period of time?
  • Flexible Furlough – from 1st July 2020, agree reduced working hours with some or all staff and use Flexible Furloughing to top up wages on days when work isn’t available?
  • Lay staff off temporarily – if your existing employment contracts allow you to lay staff off, then you will be able to give your staff advanced notice that you are going to apply the relevant clause from a specific date. You may also need to make Statutory Payments to your staff while they are laid off. For further information see: Making staff redundant: Lay-offs and short-time working – GOV.UK
  • Redundancies – Be very mindful of how any potential redundancies are communicated as this is going to be a very difficult time for some people. Continue to support your staff and treat their health and welfare as a priority. 
  • The Furlough grant cannot be used to make a redundancy payment to an employee.
  • The Furlough scheme can be used to contribute towards an employee’s Notice Pay, at 100% of their normal salary (employer will need to top up any furlough payments to 100%).
  • Consider keeping employees on furlough for as long as you can (subject to the scheme changes, scheme end date and notice periods)
  • If making someone redundant, all existing UK redundancy procedures, consultation processes, notice periods etc must be applied.
  • Confirm everything in writing and retain for 6 years.
  1. What if employees are refusing to come back to work?
  • Be fair and reasonable.
  • Staff are not obliged to return to work if the environment is not safe and the company is not fulfilling its H&S obligations and their is “serious or imminent danger”
  • Bear in mind employees may be concerned about travelling on public transport, worried that the workplace is not safe, have childcare issues as schools are still closed, have suffered a bereavement due to COVID-19 etc
  • However, if an employee has not been advised by the government or medical practitioner to stay at home, then you can expect them to come back to work.
  • Speak to employees individually to understand what they feel is stopping them from coming back.
  • Explain the position that the business is in, why you need them to return to the workplace.
  • Ask what you can do to make them feel able to return to work and try to find solutions that suit both parties.
  • As a temporary measure offer holiday or unpaid leave (confirm in writing with an end / review date)?
  • If the employee has childcare issues due to schools being closed:
    • Can they temporarily work different hours / days / weekends on a temporary basis?
    • Can they work from home for all or part of their hours?
    • Is it possible to temporarily redeploy them to another role that enables them to work from home or different work patterns?
    • Ask how they would normally deal with childcare eg during school holidays?
  • If they are living with someone who is shielding:
    • They don’t have to shield themselves, but should follow social distancing guidelines. Shielding Guidelines
    • On a temporary basis, give them a job in the workplace away from others?
  • If they are concerned about using public transport:
    • Introduce staggered start times so that they can travel off-peak?
    • Provide them with the guidelines for using public transport Safer Travel Guidance for Passengers
    • Ask how long they feel they will not be able to use public transport for? Can you accommodate that amount of time away from their job? Do they need to consider finding a job closer to home?
  • If you feel that the reasons for not returning are not valid: 
    • Ask them to confirm their reasons for not returning in writing, so that you can give a formal response?
    • Temporarily suspend their pay while the matter is resolved and confirm when it will be reviewed?
    • Offer a short period of holiday or unpaid leave before you expect them to return?
    • Consider a phased return, only paying for hours worked? But take care – if this is done during June, it may have an impact on how much you can claim for under the Furlough scheme in the future eg if calculating claims based on average pay.
    • Offer a visit the workplace when it is quiet to see what measures have been put in place?
    • Ask them to confirm if they still wish to work for the company?
  • As a last resort, begin the disciplinary process for failure to follow a reasonable instruction and / or being AWOL – seek advice first!

Important: 

  • Document all discussions and decisions.
  • This is a good time to re-issue your company Disciplinary Policy, reminding staff of the consequences of failing to comply with H&S requirements and putting others at risk.
  • If you have employees working from home:
  • Check that your Insurance covers any equipment that you are providing to them at home.
  • Review your Data Protection / GDPR policies and procedures. What additional security measures do staff need to take when working from home?
  • To minimise the chances of an employee resigning and claiming constructive dismissal, make sure they are treated fairly and reasonably, in line with all existing UK employment procedures and laws.

5. Holidays 

  • Holiday continues to accrue as normal for employees who are on Furlough.
  • To avoid a backlog, you can tell your staff when to take holiday, giving twice the amount of notice to the amount of time being take ie 2 weeks notice for 1 week’s holiday. Holiday Entitlement During Coronavirus
  • Any holiday taken must be paid at 100% (ie until the end of August, 80% Furlough and 20% Company top up / September – 70% Furlough and 30% Company top up / October – 60% Furlough and 40% Company top up).
  • Carrying over up to 4 weeks of leave for up to 2 years is for key industries / key workers and only if employees have not been able to take the time off.
  • Update your holiday policy and share it with staff:
    • Holidays already booked may be cancelled by the operator at the last minute – Do employees come to work or still take the holiday?
    • If someone is told to self-isolate and can’t go on holiday – Statutory Sick Pay or still take the time off as holiday?
    • From 8th June 2020 people returning from abroad will need to quarantine for 14 days – What is your policy going to be for dealing with this? – See some points for consideration in the next section.

6. What if an employee goes abroad after 8th June 2020 and needs to Quarantine for 14 days on their return?

  • The government has said that Quarantine rules will be reviewed every few weeks.
  • There are currently some exclusions to the regulations, including returning from countries such as Ireland and coming to the UK to work for the NHS. Full details of the scheme can be found at: Entering the UK
  • Employees should ideally still take the annual leave that they have booked (unless you need them back at work? You can ask them to cancel their holiday if you give the same amount of notice as the time being taken off eg 1 weeks notice to cancel a holiday of 1 week).
  • Going on holiday abroad and taking the associated risks is voluntary and the employee’s personal choice.
  • Government guidelines currently state “essential travel” only. Coronavirus – Safer Travel Guidance
  • Identify which employees may be impacted ie who has holiday abroad booked or is thinking of taking a holiday abroad in the next few months
  • The company is under no obligation to pay staff while in quarantine after a holiday, just Statutory Sick Pay (SSP).

Claim back Statutory Sick Pay paid to employees due to coronavirus (COVID-19)

  • Consider holidays on a case by case basis eg will they lose money on a holiday they have already paid for?
  • Potential options:
    • Work from home (if possible)?
    • Take additional holiday?
    • Take unpaid leave?
    • Swap with someone on Furlough ie going onto Furlough for a minimum of 3 weeks after the holiday?
    • Work additional hours to make up for the 2 weeks (if possible)?
    • If only just booking the holiday now, decline their leave request if you can’t accommodate the time off?
  • Furlough is NOT an option when there is work available for your staff to do.

Useful Resources

Government Guidelines

Free Mental Health & Wellbeing support

If you would like copies of any of any of my Free resources below, or need any additional help or advice, please get in touch:

Email ns@nickysilverhr.co.uk

Tele 07913 121290

  • Free Template letters:
    • For employees to agree to being Furloughed
    • Furlough extension
    • Confirming the terms of coming back to work on reduced hours (1st July 2020 onwards)
    • To confirm to employees that Furlough is coming to an end and when they will be returning to work.
  • Free Factsheet: Support for Employees During COVID-19 – detailing a number of free financial and wellbeing support services.
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