As we all seemed to have ‘settled’ into Lockdown #3, it has been a few weeks since my last COVID-19 update. You’d have to have been on another planet, though, to have missed the Prime Minister’s address last night setting out his roadmap to recovery, and so, following this, I thought I should touch base once again.

So, from this roadmap we now have a good indication of when things may open and this has to be positive news, allowing us all to start planning for the resumption of our businesses and, of course, our own personal lives.

What was missing last night though, were the support measures that the government will introduce or continue to leave in place as we embark on this road to recovery.

It is obvious that businesses that have been struggling through aren’t going to be rubbing their hands with glee and counting their profits at the end of week one, month one or even, in many cases, year one. It is going to be a long, hard, slow and, hopefully, steady recovery for so many of us and thus it is vital that the government recognises this in the support packages that I hope will be announced when the chancellor reveals the detail of his spring budget next week (Wednesday 3 March).

I hope that he will announce a number of recovery support measures for the business sector, including the continuation of the local support grants scheme. For me, furlough absolutely has to be extended well beyond its current end date of 30 April and I would hope that we will see the 80% flexible furlough retained for a number of months before moving to gradually reduced levels – 70%, 60%, 50% – similar to how this was envisaged last year before we headed into the tiered approach and then the second and third lockdowns.

An extension to furlough will be critical as I am sure that there will be many businesses that will not be able to bring back all of their furloughed employees immediately and I also fear that we will see further redundancies as businesses evaluate their respective paths to recovery.

Those businesses that took out Bounce Back Loans received positive news recently in that these loans can now be paid back over 10 years instead of 6, and payment holidays can be taken by businesses.

Another positive is that businesses that had struggled to claim on their business interruption insurance may now have that opportunity following the recent judgement by the Supreme Court. If you want to see whether you might be able to claim, take a look at the FCA’s on-line policy checker:

https://www.fca.org.uk/firms/business-interruption-insurance/policy-checker

There are other things that we will need to keep an eye on in next week’s budget statement that could have a negative impact and counter other possible support measures – things such as VAT, National Insurance and Corporation Tax. Let’s keep our fingers crossed and hope that the government does not undermine the positive support measures that they have put in place for businesses over the past 11 months.

As always, give me a call should you require any further information or if you need advice on any employment matters.

Since the Prime Minister’s announcement on the evening of Monday 4 January, putting the country back into lockdown, I have been asked a number of questions relating to annual leave and, specifically, whether an employer can require an employee to take annual leave during furlough.
Generally, employers can require employees to take a period of annual leave during the coronavirus (COVID-19) outbreak, provided that they give the employee the required notice. This is unless there is an agreement to the contrary (such as in the employee’s contract or a collective agreement). As previously advised, the employer must give the employee a period of notice at least twice as long as the period of leave it requires them to take. For example, if the employer requires the employee to take one week’s annual leave, they must give them at least two weeks’ advance notice.

Where an employee is furloughed during lockdown, it is less certain that the employer can require them to take annual leave (although the need to pay employees their normal weekly pay during a period of annual leave may mean this is an unattractive option for many employers in any event).
The most up-to-date government guidance on Holiday entitlement and pay during coronavirus (COVID-19) states that:
“If an employer requires a worker to take holiday while on furlough, the employer should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday.”
While case law has found that employees can be required to take annual leave at a time when they would not otherwise be working, it is not clear if the same principles would apply during furlough in a lockdown situation. Therefore, the safest option for an employer wishing to avoid the risk of a dispute is not to require employees to use their annual leave during furlough for the foreseeable future.

However, this does not mean that an employer cannot request employees to use their holiday whilst furloughed but, should this be the preferred option, they should seek their agreement to this, rather than imposing a period of annual leave on them. Employees in receipt of reduced pay may indeed be happy to take annual leave while they are furloughed, as this leave period would be on full pay.
As you will be aware from my previous updates, employees will be able to carry over unused leave that has been accrued during the period of the COVID-19 pandemic. Last year, the government passed new emergency legislation to ensure that businesses have the flexibility they need to respond to the pandemic and to protect workers from losing their statutory holiday entitlement. These new regulations enable workers to carry holiday forward where the impact of COVID-19 means that it has not been reasonably practicable to take it in the leave year to which it relates.

Where it has not been reasonably practicable for the worker to take some or all of the 4 weeks’ holiday due to the effects of coronavirus, the untaken amount may be carried forward into the following 2 leave years. When calculating how much holiday a worker can carry forwards, employers must give workers the opportunity to take any leave that they cannot carry forward before the end of the leave year.

As always, give me a call should you require any further information or advice on the above, or on any other employment matter.

In a surprise announcement earlier today, the UK government has advised that the Coronavirus Job Retention Scheme (CJRS) will remain at the current level of 80% until the end of April 2021.

Having previously extended the scheme to 31 March 2021, the government was due to undertake a review in January. One can only assume that this further extension is in anticipation of the third spike in the New Year that is being mooted following the relaxation of the COVID rules over the Christmas period.

The period for making claims for December is now open and these must be made by 14 January 2021.

To help you plan ahead to meet the monthly deadlines, here is a list of the key dates:

• 14 January 2021 – final date to submit claims for December 2020
• 15 February 2021 – final date to submit claims for January 2021
• 15 March 2021 – final date to submit claims for February 2021
• 14 April 2021 – final date to submit claims for March 2021
• 14 May 2021 – final date to submit claims for April 2021

Picking up on a couple of questions that I have been asked I am sharing these, with my responses, below:

Can I use CJRS grants to pay for holiday leave?

If you have furloughed employees because of the effect of coronavirus on your business, you can claim under the CJRS for periods of paid annual leave they take while on furlough, including for bank holidays such as Christmas Day or Boxing Day.

If your employee is flexibly furloughed, you can count any time taken as annual leave as furloughed hours rather than working hours.

However, it must be stressed that, for periods of annual leave, employees are entitled to receive their normal full pay, although you can claim 80% of their usual wages for these hours. However, you should not place employees on furlough just because they are going to be on paid leave.

Can I include a Christmas bonus in my calculation for the grant?

You can claim for regular payments that you are contractually obliged to pay your employees, including compulsory commission, fees and overtime. However, you cannot claim for discretionary commission, non-contractual bonuses (including tips) and non-cash payments.

As always, please don’t hesitate to call me if you have any questions.