Update on the job coronavirus job retention scheme
The support available via the Coronavirus Job Retention Scheme to employers has been reducing throughout the summer, with the Scheme providing first an 80% grant towards unworked furloughed hours pay (up to a cap of £2,500 per month), reducing to a 70% grant in July 2021, down to 60% in August 2021, and down to a lower end of 50% grant to cover furlough pay in September 2021.
Over the summer months there appears to have been increased job creation and recruitment. However, coming into autumn, it is possible that some employers will face difficult decisions regarding their employees as the Coronavirus Job Retention Scheme Scheme’s contributions reduce and come to an end by the end of September 2021.
Due to reduced activity or work availability, employers may be considering reducing their staff numbers and making redundancies after the Coronavirus Job Retention Scheme comes to an end. Any dismissal for reason of redundancy must be carried out by following a fair procedure. The employer must meet with affected staff to consult with them about the requirement for the redundancy dismissals. There are strict rules around the timing of any redundancy dismissals when the employer plans to make more than 20 employees redundant in any 90-day period (see section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992).
A failure to comply with the collective redundancy procedure can lead to claims against the employer for a protective award of up to 90 days gross actual pay (so not subject to the statutory cap on weekly pay).
Again, due to reduced work activity or work availability employers may explore the possibility of a transfer of all or part of their existing business to a different company. Usually, this would involve a relevant transfer and engage the Transfer of Undertakings (Protection of Employees) Regulations 2006 (the TUPE Regs). In the event of a relevant transfer that engages the TUPE Regs, both employers – the employer transferring the employees and the employer accepting the transfer of the employees – have a duty to inform and consult with all affected employees about the transfer and any economic, legal and social effects of the transfer. Failure to inform and consult can lead to claims against the transferring employer and the transferee employee for an award of compensation that can be up to 13 weeks gross wages (which is not subject to the statutory cap on the weekly wage).
If staff are to be returned to the workplace, an employer may consider applying a process of induction and training to re-integrate the returning furloughed employees and workers into the workplace effectively and to update all staff on the employer’s policies and procedures at this time. There may be new policies for staff to consider and familiarise themselves with, such as a Coronavirus Testing Policy, or Coronavirus Vaccination details request.
Sometimes it will be necessary to consult with employees and workers about making changes to their contracts of employment. Any variation to the contract of employment should ideally be done with the written agreement of both parties – that is with both the employee and employer signing the new copy of the contract that includes the new terms. However, there may be circumstances where an employer cannot reach agreement with employees about the proposed new terms of employment and seek to apply the new terms without the employees’ agreement. Such a process may lead to claims for unfair dismissal and breach of contract against the employer by the employees.
On returning staff to the workplace, it is important the employer complies with their obligations under the Health and Safety at Work Act 1972 and the Health and Safety at Work Regulations 1992. These provide that the employer must take reasonable steps to protect employees’ and workers’ health and safety at work. Reasonable steps would include carrying out a risk assessment of the risks posed by the workplace and this would include assessment of the risk Covid transmission risks and steps to mitigate such risks.
Here at Hanne & Co’s Employment Law department, we can assist and advise both employers and employees who, after the Coronavirus Job Retention Scheme comes to an end, may be undergoing:
- Redundancy dismissals;
- TUPE Regulations relevant transfers;
- Changes to contracts of employment;
- Providing tailored employment policies and procedures and updating those documents;
- Providing advice on carrying out risk assessments and meeting the employer’s health and safety responsibilities in the workplace;
- Providing advice and representation should there be a Tribunal or Court claim relating to employment.
If you require employment advice or assistance, please do not hesitate to contact Hanne & Co’s expert Employment Law Team on 020 7228 0017.