COVID-19: Our HR team answer your FAQs

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The impact of Coronavirus on UK businesses continues to evolve, and with the situation escalating daily, we at Business Clan wanted to make sure that all our clients have access to as many resources as possible. What follows below is a list of frequently asked questions, with advice and useful links to guide your decisions surrounding working practices and staff management. The list is by no means exhaustive and the situation is changing daily, so in the event that you cannot find the answer you need, or would like to talk to an HR expert, our team are on hand to support you.

For the latest information re the changes to the Coronovirus Job Retention Scheme from 1st July 2020 recently announced by the Chancellor please read our blog How will the Coronavirus Job Retention Scheme (CJRS) change after the end of June?

  • All individuals who are off sick because of COVID-19 are eligible for statutory sick pay (SSP) for the duration of their period of sickness, provided they meet the standard eligibility criteria for SSP. The government has pledged to meet the cost of this from day one to day fourteen, after which the cost of any ongoing SSP is the responsibility of the employer. Any right to additional company sick pay will be as per your contractual obligations and must be met accordingly. Sickness absence in relation to any other illness (non COVID-19 related) should be managed in the usual way and will not qualify for government support.
  • Employers are required to maintain records of sickness absence and SSP payments. These must include the reason why the employee was unable to work, the start and end dates of the period of sickness, details of the SSP qualifying days (i.e. the days when the employee is normally contracted to work) when an employee could not work, and National Insurance numbers of employees whose SSP you are claiming for.  These records must be kept for 3 years from the date of the claim.
  • Note that the government is working on but is yet to clarify the mechanism for SSP reimbursements. If this presents short term cashflow problems for your business, you may be eligible for the government new temporary Coronavirus Business Interruption Loan.
  • Fit notes are not being issued in relation to Coronavirus, and you should operate on a basis of trust. However, if you require evidence from your employees, then those in isolation can contact NHS 111 online for an isolation note, and those living with someone who has symptoms can visit the NHS website for a similar document.
  • It should be noted that furloughed employees (explained below) retain their right to SSP, and so should receive at least SSP rates during periods of sickness.  It is up to the employer to decide whether, in the event that a furloughed employee becomes sick whilst on furlough leave, to keep them on furlough at their furloughed rate or transition them onto SSP (and where possible make a claim as above for the first 14 days).  What is clear is that the two circumstances cannot co-exist; it is not possible for an employer to claim for both SSP and furlough rates of pay at the same time for the same employee. Likewise, sickness absence does not have a bearing on whether to select a particular employee for furlough leave, but where employees already on sick leave (short or long term) are selected for furlough for business reasons, they should be formally placed on furlough leave, paid at the furloughed rate, and no longer receive sick pay.
  • The government has announced the new Coronavirus Job Retention Scheme, designed to protect businesses and their employees from redundancy in the absence of available work.
    • The scheme is intended to support any entity unable to maintain payroll costs as a result of COVID-19, provided that they have a PAYE payroll scheme that was created and started on or before 19th March 2020, and have enrolled for PAYE online (this process take approximately 10 days). Businesses, charities, recruitment agencies (where agency workers are paid through PAYE), and public authorities are all covered under the scheme. You will need a Government Gateway ID and password in order to make a claim for the grant – if you do not already have one you can apply online here.
    • In order to qualify, employers must designate affected employees as ‘furloughed’ (which essentially means on a temporary leave of absence.  Unlike redundancy, they remain on payroll and usually return to their job at the end of the period of absence).  Affected employees must be consulted in line with employment law (either individually or collectively, depending on the numbers involved), but in the context of redundancy as an alternative, they are unlikely to quibble. Employers should write to those selected for furlough, informing them of the situation, and keep a record of the correspondence for at least 5 years.
    • Although it is not a specific requirement, it would be sensible to base your decisions on which employees to furlough on the same reasonable and fair basis as you would select employees in the event of redundancy. All the same laws of equality and discrimination will be applied to the process of selection for furlough.
    • HMRC will reimburse eligible employers to a maximum of 80% of monthly wage costs (up to a max of £2500 per month or £576.92 per week, and excluding non-cash payments and discretionary commissions, tips or bonuses) plus the associated Employer’s National Insurance contributions and minimum automatic enrolment employer pension contributions on that wage. Pay will be backdated to 1st March 2020, if applicable (in other words, for any days dating back to 1st March when affected employees were officially on furlough and no longer working). The employee’s wage will be subject to the usual income tax and other deductions.
    • Government has now launched the portal via which employers will need to submit their claims. This will undoubtedly create cash flow issues for some businesses in the intervening period, and so, if necessary, you may wish to consider applying for the government’s new temporary Coronavirus Business Interruption Loan.
    • Employers can choose at their discretion whether to supplement some or all of the remaining 20% of pay, and for how long. However, there is no obligation for employers to top up the furlough pay to full salary, even if furlough pay rates fall below the National Minimum Wage levels. Good practice would dictate that whatever your decision, it should apply to all or none of your furloughed employees. Employers who are unable to meet some or all of the 20% shortfall in wage costs are obliged to consult on this temporary pay reduction with affected employees. Failure to follow this process would constitute an unlawful breach of contract. We can provide guidance and support on the correct procedure for consulting with employees on contractual changes.
    • Payments received by businesses under the Coronavirus Job Retention Scheme are made to offset deductible revenue costs and must therefore be included as income in the business’ calculation of its taxable profits for Income Tax and Corporation Tax purposes. Businesses can deduct employment costs as normal when calculating taxable profits for Income Tax and Corporation Tax purposes.
  • ‘Furlough’ essentially means a temporary leave of absence. It is not a term that has been previously used in the UK but given the unique set of circumstances UK businesses are facing, it is now very relevant.  Many businesses (including, but not limited to, those in retail and hospitality sector) simply cannot provide work for staff during this temporary period of closure but will need these staff back at work once business can resume. Unlike redundancy, furloughed employees remain on payroll and usually return to their job at the end of the period of absence.  In addition, they retain their employment rights to such things as redundancy pay, maternity rights, pension contributions and holiday accrual.
  • In the limited case of businesses whose premises remain open, furlough may also apply to some of your staff who are unable to attend work because they are shielding (or at home with someone who is shielding) based on government health guidance and whose work simply cannot be done from home. Likewise, for employees who cannot attend a functioning workplace (or work at home) because they have caring responsibilities directly stemming from the COVID circumstances (such as childcare, in the absence of their usual childcare or education facilities).
  • Importantly, employees designated as furloughed may not carry out any work at all for the employer during the furloughed period.  This includes the provision of any services or generating revenue in any way. Therefore, if staff can work at home (and with children around, in many cases) then you should continue to pay them (and they will not qualify as ‘furloughed’), even if that requires consulting to place them on reduced hours. Much depends on your business: the practicalities of whether certain work can be done remotely, what you can afford, how long you can afford it for, and how your decisions may impact business continuity.
  • Furloughed employees can do volunteer work or training –in fact this is encouraged–, provided this neither provides a service for your business nor generates revenue for it. Any compulsory training which they complete for their job whilst on furlough must be paid at least at National Living Wage / National Minimum Wage level, even if the amount of furlough pay they are receiving does not meet this minimum.
  • It is possible to move staff in and out of furlough as business needs dictate. However, the minimum length of any period of furlough will be three weeks. This is worth considering as it enables you to rotate staff in and out of the business as needed, and where applicable and possible.

Firstly, all employees who were on payroll on 19th March 2020 and meet the RTI requirement below are covered, including full-timers, part-timers, employees on agency contracts and employees on zero hours contracts. The RTI requirement is that they are on your PAYE system and were notified to HMRC on an RTI submission on or before 19th March 2020. It should be noted that any eligible employees who are on foreign visas can be claimed for; the grant does not constitute ‘access to public funds’, and employers can claim in respect of eligible employees on all types of visa. Unfortunately, anyone joining your payroll after that date (or yet to join but with a signed contract and future start date) will not be covered under this scheme and should apply instead for Universal Credit.

  • If you made any of your payrolled employees redundant after 28th February 2020 but prior to 19th March 2020 as a direct result of the impact of COVID-19 on your business, they will qualify for furlough provided that you re-employ them (even if you do not re-employ them until after 19th March 2020) and place them on furlough instead.  This applies as long as the employee was on your payroll as at 28 February 2020 and had been notified to HMRC on an RTI submission on or before 28 February 2020. Continuity of employment should be reinstated, with their employment rights unaffected.
  • Similarly, employees who were placed on unpaid leave since 28th February 2020 and as a direct result of COVID-19, may be placed on furlough instead. Employees on unpaid leave who do not meet these criteria will not qualify for furlough. If an employee went on unpaid leave on or before 28 February, you cannot furlough them until the date on which it was agreed they would return from unpaid leave.
  • Sickness absence does not have a bearing on whether to select a particular employee for furlough leave, but where employees already on sick leave (short or long term) are selected for furlough for business reasons, they should be formally placed on furlough leave, paid at the furloughed rate, and no longer receive sick pay.
  • The key point here is that an employer cannot be in receipt of a government grant or compensation for both SSP and furlough pay for the same employee at the same time.  In turn, no employee should be on both sick pay and furlough pay at the same time.  It is an either/or scenario, and therefore up to the employer to decide whether to designate the employee as on sick leave or furlough leave, and then apply the appropriate rate of pay. The same rule applies for a furloughed employee who falls sick; they retain their right to sick pay, but in exercising that right they would forfeit their right (for the duration of the sick pay period) to their furloughed status.
  • The usual statutory leave and pay rules apply in such cases. However, for employees on any form of enhanced contractual maternity, paternity, shared parental or adoption pay, this counts as a wage cost and can be claimed back through the scheme.
  • For employees who earn a regular amount (the same each pay period) you should claim for 80% of their regular wages from their last pay period before 19th March 2020. You can claim up to a maximum of £2500 per month (or £576.92 per week). HMRC has created an online calculator which can be used for calculating very standard, regular wage costs (and which, at the time of writing was due to be updated to enable calculations for employees on variable pay); however, you will need to use manual calculations (or seek advice on how to calculate) in cases where the employee:
      1. receives top up pay in the claim period
      2. has returned from statutory leave within the last month (e.g. maternity leave)
      3. gets directors’ payments
      4. has been transferred under TUPE
      5. has been employed at separate times during the last year
      6. receives employer pension contributions outside of an auto-enrolment scheme
  • For casual staff on PAYE, whose monthly wage varies, this will be calculated based on 80% of either the same month’s earnings from a previous year, or average monthly earnings from the 2019-2020 tax year. For those who have been employed for less than a year, this obviously cannot apply, and you should apply for your 80% based on an average of their earnings since they started working for you. If they only joined in the last month, you will be required to make a pro-rata calculation for their earnings so far, and claim for 80% of that sum. The same £2500 per month (or £576.92 per week) maximum cap applies.
  • In all of these cases, you will then need to calculate and add in the relevant National Insurance contribution and pension auto-enrolment contributions.
  • When calculating wage costs for the purposes of the claim, you can include:
      1. regular wages
      2. non-discretionary overtime
      3. non-discretionary fees
      4. non-discretionary commission payments
      5. piece rate payments
  • When calculating wage costs for the purposes of the claim, you cannot include:
      1. payments made at the discretion of the employer or the client (such as tips and tronc payments, discretionary bonuses or discretionary commission), where there is no contractual obligation to pay and to which your employee had no enforceable right. When variable payments are specified in a contract and those payments are always made, then those payments may become non-discretionary and should be included as part of the wage calculation.
      2. non-cash payments
      3. non-monetary benefits in kind (e.g. company car) and salary sacrifice schemes (including pension contributions) that reduce an employee’s taxable pay. It is not normally possible for employees to switch out of salary sacrifice schemes save in exceptional circumstances, which can include a ‘life event’. The government has published guidance that it has qualified COVID-19 as a ‘life event’, thereby enabling employees to switch out of salary sacrifice by reason of the current pandemic. However, since this constitutes a change in contractual terms, it can only be done through consultation and agreement to vary the terms of the employment.
  • Any benefits that are usually provided in addition to the wages covered under the Job Retention Scheme must be covered by the employer. Any decision to withdraw additional contractual benefits must be done in the lawful and correct manner, through consultation process where necessary. Please contact us for advice on this if you are unsure.
  • Much more detail is provided on the HMRC website, and we recommend a thorough review of this before you finalise and submit your claim via the portal.  There is very specific guidance provided, with some useful example calculations, and advice on how to accurately calculate the employer’s NICs and pension contributions.  You can access the relevant page for further detailed information here.
  • Employers will need to submit information regarding furloughed employees and their earnings to HMRC via their new online portal, which is now up and running.
  • HMRC will require you to provide certain details via the portal, including your ePAYE reference number, your Self Assessment Unique Taxpayer Reference or Corporation Tax Unique Taxpayer Reference or Company Registration Number, the number of employees being furloughed (plus their names, National Insurance Numbers, and payroll or works numbers), the claim period (start and end date), the amount being claimed, your business bank details, and your contact details. HMRC may retrospectively audit any aspect of your claim, and you should retain all the records and calculations in respect of your claims.
  • You will need to calculate the amount of each employee’s claim, bearing in mind you can only claim for 80% of wage costs up to a maximum of £2500 per month (or £576.92 per week), plus adding in the NICs and employer’s statutory minimum pension contributions associated with those wage costs. Note that the cut-off date for applying furlough has been amended (now 19th March 2020, but previously 28th February 2020). If, based on previous guidance, you have calculated your claim based on the employee’s salary as at 28 February 2020 (and this differs from their salary in their last pay period prior to 19 March 2020) you can choose to still use this calculation for your first claim. The minimum period of furlough per employee is three weeks.  You can, however, make as many claims as you need to during the time that the scheme remains open – thereby enabling you to roll people in and out of furlough as the needs of the business require.
  • For employers furloughing less than 100 staff, you will be required to enter each employee’s information (name, NI number, payroll or works number, claim period and claim amount) directly into the system. For those furloughing in excess of 100 staff, you will be required to upload one file containing all the aforementioned information for affected employees.
  • Claims cannot be amended once submitted, however, you can save a claim and finish it up to 7 days later. Approved claims will be reimbursed by HMRC via BACS payment. After submitting your claim it is estimated that you should receive funds within 6 days. You are required to retain all records relating to the claim for 6 years (the claim reference number, the dates of the claim period, the amount claimed, and your calculations).
  • In RTI, you must report the amount of grant you receive and pay to an employee, in the same way you would report their normal pay.  You should make RTI submissions on or before the date you pay your employee.  Where employers have continued to pay employees during a period of furlough, in advance of receiving ant payments under the scheme, they do not need to make any further RTI submissions when they receive the grant that reimburses those payments made in advance.
  • No information has been provided by government as regards the end of this process. However, it is clear that after the scheme is closed, it will be the decision of individual employers, based on the prevailing business circumstances, whether roles remain available or whether alternative action, including redundancies will be necessary.
  • In the latter event, statutory and contractual procedures must be applied and followed. As with all potential redundancy situations, employers will be required to consider every possible alternative solution. Where it is anticipated that business may pick up eventually, it may be prudent to consider shorter term solutions such as unpaid leave or reduced hours (by consultation and agreement) in order to protect longer term job security and staffing levels.
  • The 80% wage guarantee under the Coronavirus Job Retention Scheme will not cover casual or zero hours staff unless they are on the PAYE system. Nor will it cover income for self-employed individuals, such as freelancers.
  • For the self-employed, the government has announced the deferral of income tax payments that would have been due in July 2020 (now not due until Jan 2021). This is an automatic entitlement with no action required by individuals.
  • The government has also unveiled an unprecedented support package to cover the millions of self-employed and freelance workers, in the form of a taxable cash grant, worth up to 80% of their trading profits (to a maximum of £2500 per month), where trading profits have been adversely affected by COVID-19.
  • Unlike employees on furlough, the self-employed may continue to work whilst claiming under the scheme.
  • The funds will not be forthcoming until June 2020, however, will be paid in a single lump sum and, where applicable, backdated to 1st March 2020. In the event of this causing short term cashflow issues, there is recourse to the Coronavirus Business Interruption Loan.
  • This scheme applies to any self-employed individual who traded in 2019/2020 (and intends to trade in 2020/2021, and whose trading profits for 2018/2019 (or on average across the tax years 2016/2017, 2017/2018, and 2018/2019) did not exceed £50,000. It is also a requirement that the majority of income comes from self-employment.
  • HMRC will only use those tax years for which a self-assessment tax return has been filed, as a means of calculation of average income, and in respect of tax year 2018/2019, there is a grace period of up to 23rd April to file late if you have not done so already.
  • No action is required, as HMRC will contact those individuals eligible for this scheme and invite them to make an online application. Please be wise to the potential for scam emails and calls.  HMRC does not send texts or make call asking for bank details.
  • Grants will be taxable and must be declared in the tax return by January 2022. It is also worth noting that the Chancellor has made clear his intention to level the playing field on income tax across the employed and the self-employed – but this will be at a future point, albeit one to watch.
  • A lot of business owners unfortunately fall between the two schemes offered by the government.  There is no compensation provided on either the Self Employment Income Support Scheme or the Coronavirus Job Retention Scheme for any portion of income paid through dividends. The Self Employment Income Support Scheme pays out on 80% of trading profits (up to a max of £2500 per month) but allows the self-employed to continue running their business and working.  Company owner-managers running their own incorporated businesses are not eligible for this self-employed scheme, but may be eligible for the Coronavirus Job Retention Scheme (CJRS) in relation 80% of any PAYE element of their income (which is likely to be small, if they were adopting tax efficient measures – and again is capped at a max of £2500 per month).  They would have to have been on PAYE on 19th March 2020 to qualify. The CJRS approach would also require them to furlough themselves and do no further work that provides a service to or revenue for the business (the only exception to this ‘no work’ rule would be carrying out any duties which are necessary for the fulfilment of statutory obligations as a director. There are seven clearly defined statutory obligations, and care should be taken not to ‘overstep’ these as it would place you in breach of the rules of furlough). In the case of a small (possibly one or two-man) business would mean moth-balling the business for the foreseeable future, which may not be a practical option for many.
  • The government has now provided more clarity on the situation for office holders (including salaried company directors), salaried members of Limited Liability Partnerships (LLPs) who are designated employees for tax purposes, agency workers, and limb (b) workers (a ‘worker’ who is registered as self-employed but provides a service as part of someone else’s business, generally carrying out the work personally). All of these are covered under the CJRS, in respect of their PAYE income, and subject to the requirement to have been on the PAYE system by 19th March 2020:
    1. Office holders – furlough must be agreed between the office holder and the party that runs PAYE on their income. If the office holder is also a company director, the guidance below also applies.
    2. Company directors – the decision to furlough a company director should be formally adopted as a decision of the company, noted in the company records, and confirmed in writing to the relevant company director being furloughed.
    3. Agency workers – it falls to the agency, as their direct employer, to decide on and manage the furlough arrangements.  However, if you are reliant on regular services of an individual in this category, it is likely that such a decision would be made in consultation with your business, as it would entail withdrawing the provision of service.
    4. Salaried members of LLPs – the decision to furlough in this case may require a variation on the terms of the LLP agreement, by formal decision of the LLP, in order to accurately reflect the changes that furlough will impose (such as ability to carry out work, impact on remuneration).  The reference salary for the claim would be the LLP member’s profit, excluding any element that was awarded based on individual or partnership performance. You must only include payments that are not affected by the overall amount of the LLP’s profits or losses, whether these are fixed or variable (in the latter case without reference to the overall amount of the profits or losses of the LLP).
  • A number of employers are either bringing forward by agreement (or giving notice to enforce) accrued annual leave, or time off in lieu. However, if enforcing leave, you must provide notice that is twice as long as the duration of the leave itself. Where you cannot furlough staff but may be able to manage without them for a shorter period than furlough, this could be an option.
  • For those who can work, consider flexibility, such as different working schedules (evenings/weekends) or reduced hours – by agreement and consultation.  This may be a useful step in the event that you do not have sufficient work for full time hours, but need cover for reduced hours in order to ensure business continuity. However, unless there is express provision for this in the employment contract, you cannot unilaterally impose such a change and must consult with affected employees. In the present climate, though, it is unlikely that employees would resist, provided you have fair and reasonable grounds for the proposed change.
  • Where you are making fundamental changes to working arrangements, messaging is key. Set timelines for review and be clear that certain rights will remain unaffected (such as redundancy pay and pension, which should remain linked to normal rates of pay).
  • Consider freezing any discretionary benefits, at least in the short term.
  • Furloughed employees will continue to accrue annual leave whilst on Furlough Leave. You may choose to consult with your staff regarding reducing their holiday allowance to minimum statutory leave entitlement during the furlough period, in the event that you currently offer anything above and beyond the required 5.6 weeks pro rata.
  • Government guidance, previously silent on the issue of employees taking annual leave whilst on furlough, has now been published. Employees can take holiday during furlough, but this would need to be remunerated at the normal rate of pay (and where pay is variable, this would be at the normal average rate of pay, calculated on the basis of the previous 52 weeks’ pay). Therefore, for employees on annual leave during furlough, employers will be obliged to top up pay to 100% during the agreed annual leave period. In the event that employers wish to impose a period of annual leave on a furloughed employee, they must observe the usual rules of giving twice the amount of notice as the length of leave to be taken (for example, if 5 days’ holiday is to be taken at a time of the employer’s choosing, the employer must give the employee at least ten days’ notice).
  • The government has announced emergency legislation to enable employers to provide employees with the opportunity to take their accrued leave without detriment to business once it re-opens. Statutory leave which has been accrued but could not practicably have been taken may be carried over and spread across the following two annual leave years.  This eases the pressure on the latter stages of the year when business hopefully resumes and will undoubtedly be reliant on a reasonable level of headcount.  However, employers will need to plan ahead carefully to ensure that sufficient staff cover is available at all key times over the two years ahead, given the significant rise in leave that will be owed to multiple employees over that period.  It will need careful managing and administration.
  • It is unlikely that furloughed employees will need to carry forward annual leave, since accrued holiday can be taken whilst on furlough, without breaking the terms of furlough. The exception to this would be where an employer can demonstrate that they were unable to support the additional cost of making those holiday days up to full normal pay, in which case there is justification for allowing carry over into the following two years.
  • Where annual leave is carried over in line with the new emergency legislation, employers should manage this carefully. During the coming two years, employees to whom any carryover agreement applies will effectively have two separate holiday entitlements; any accrued leave which has been carried forward and must be taken within the two year period, and the usual statutory entitlement for the new leave year. Best practice dictates that the holiday that expires first should be taken as a priority. Holiday records should reflect clearly whether dates are marked as carried holiday or regular statutory entitlement. Carried holiday is subject to greater protection than regular entitlement; employers must have a very good reason for refusing to allow carried leave to be taken on a requested date.
  • Employers may restrict when holiday can be taken, if there is a business need to do so.  However, in this event, they should keep a careful record of leave as it accrues and ensure that the opportunity is presented to employees to take leave once business circumstances allow, in accordance with legislation and any agreed holiday booking procedures and policies.
  • Bank holidays (of which there have already been two since the start of the furlough scheme) are treated in the following way:
    • If the employee usually works bank holidays, then these dates can be included in the grant payment
    • If the employee usually takes bank holidays off, then the employer must top up pay for these dates to usual holiday pay rates or provide a day in lieu.
  • While a member of your staff is furloughed, or on reduced hours, they remain your employee and under the terms of the employment contract.  Therefore, they can take a second paid job with someone else whilst on furlough if their contract allows for this (or you expressly agree to it writing) but only during those hours when they would not have otherwise been working for you.  For example, a second job over the weekend, when they would usually only work weekdays for you, would be OK.  However you should be very specific about what you agree to (such as ensuring you are not agreeing to them working for a competitor) and point out that their contractual obligations to you still apply (in particular non solicitation, non- competition, confidentiality and any other such clauses you may have in the employment contract). You should also take care to make sure that if you allow the second employment to continue once normal working patterns resume, the member of staff is not working more than the limits set out in the Working Time Regulations (no more than an average of 48 hrs per week generally calculated over a 17 week period).  It is the responsibility of both employers to make sure this is adhered to.

Business Clan have provided an invaluable source of HR advice for all members of our Business Improvement District during the COVID-19 crisis, providing them with regular, crucial and timely support in interpreting and implementing government guidance surrounding furlough arrangements.

Nicola Grant, Positively Putney BID

We will keep this blog up to date as the government announces new measures to support employers and employees throughout this crisis. Please check back over the coming days or give our HR team a call if you have any questions.

For the latest information re the changes to the Coronovirus Job Retention Scheme from 1st July 2020 recently announced by the Chancellor please read our blog How will the Coronavirus Job Retention Scheme (CJRS) change after the end of June?

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