Furlough extension and ‘back to work’ safety guidance
On 12 May 2020 the Chancellor, Rishi Sunak, set out plans for the next phase of the CJRS, and how the government hopes to support employees back into…
Almost eight weeks after the ground-breaking Coronavirus Job Retention Scheme (CJRS) was first announced, and unprecedented ‘lockdown’ measures were implemented, there is light at the end of the tunnel. The loosening of some elements of social restriction by the Government means that many employers can begin to emerge from ‘crisis mode’ and look to take their first steps back to normality.
On 12 May 2020 the Chancellor, Rishi Sunak, set out plans for the next phase of the CJRS, and how the Government hopes to support employees back into work and avoid job losses to redundancy.
At the same time, the Government has published a set of detailed practical guides to making workplaces ‘COVID secure’, intended to support employers to bring employees back to their physical workplaces safely and confidently.
Coronavirus Job Retention Scheme (CJRS)
Currently, the CJRS allows employers to claim 80% of wage costs for any employee placed on furlough leave. The scheme was originally envisaged to run from 20 March to 31 May, but was later extended by a further month to 30 June, to keep step with the extension of social distancing measures.
It is currently an explicit eligibility requirement that an employee must not provide services to, or generate revenue for, their employer whilst they are furloughed and the employer is in receipt of CJRS payments.
According to the Chancellor’s announcement, the scheme will evolve as follows:
- The CJRS will be extended, for four months, until the end of October. This means that the scheme will run for almost eight months in total.
- Until the end of July, there will be no changes to the scheme from its current format.
- From August to October the scheme will continue, for all sectors and regions of the UK. Employers currently using the scheme will be able to bring furloughed employees back, including on a part-time basis.
- In the August-October phase of the scheme, the Government will ask employers to start sharing, with the Government, the costs of paying people’s salaries.
- Workers will, through the combined efforts of Government and employers, continue to receive the same level of support as they do now; 80% of their salary, up to the cap of £2,500.
- Further guidance on the August-October phase of the scheme will be published by the end of this month (May 2020).
COVID Secure Workplace Guidance
To facilitate the re-opening of physical workspaces, and the transition of greater numbers of employees back into those workspaces, the Government has published a series of guides to making workplaces ‘COVID secure’.
A series of eight sector-specific guides has been produced for construction and other outdoor work; factories, plants and warehouses; labs and research facilities; offices and contact centres; employees performing work in other people’s homes; restaurants offering takeaway and delivery; shops and branches; and employees working in or from vehicles (including couriers or mobile workers).
While the guides contain tailored best-practice advice for employers in each of these sectors, they share a common structure and common core content.
Most prominently, the guides advise employers how to maintain ‘social distancing’ at work, and suggest some ‘mitigating actions’ that might be taken to reduce risk where social distancing is not possible or practical. For example, some common themes include staggering start, finish and break times to avoid congestion; minimising face to face attendance at meetings; controlling access to common areas such as canteens or rest spaces; and using ‘fixed’ teams or pairings to minimise social mixing.
Crucially all versions of the guidance advise that employers should undertake a specific COVID-19 risk assessment, in conjunction with unions and workers. The risk assessment should be shared with employees, and the Government expects that organisations with more than 50 staff should publish it on their website.
There is also a reminder to employers to be mindful of their responsibilities to employees with protected characteristics. Disabled employees may require reasonable adjustments that differ from, or go beyond, the arrangements in place for the rest of the workforce. As always, expectant mothers should be subject to a tailored risk-assessment and are entitled to be suspended with pay if they cannot be kept safe at work.
On the contentious subject of personal protective equipment (PPE) the guides suggest that employers should not encourage the ‘precautionary’ use of additional PPE to protect against COVID-19 outside certain, very high risk, settings. The focus should be on providing extra protections that are genuinely helpful and appropriate, based on a detailed risk assessment, rather than investing excessive energy and funds in resources that may only have marginal benefits. As employers work through the well-recognised health & safety tool – the hierarchy of controls – PPE should feature far down that list, therefore the importance and effectiveness of PPE in the fight against COVID-19 is perhaps in question.
The guidance from the Government is not legislation; it is not even an Approved Code of Practice (ACOP) both of which have more formal standing when workplace compliance is under consideration. It is guidance and whilst following it is not compulsory, to not do so will require very robust, written reasoning. But will these guidelines be enforced, or even enforceable? Absolutely. The Health and Safety Executive (HSE) has just received a 10% cash injection from central Government to support “COVID Secure spot inspections”, they will challenge businesses to prove compliance against the guidance and will use Improvement or even Prohibition Notices to demand changes or temporarily close work places down in the face of non-compliance.
The Government makes clear that it’s COVID secure workplace advice provides a suggested safety framework only and that every business will need to “translate this into specific actions it needs to take, depending on the nature of their business, including the size and type of business, and how it is organised, operated, managed and regulated”. For many employers, extensive temporary changes to working practices will be needed to make sure that their duty of care to staff is fully discharged and that accordingly, employees can recognise it is safe to get back to work. The guides also quite rightly specify that “workers should not be forced into an unsafe workplace”. Much debate is bound to ensue over exactly what ‘unsafe’ means in the current, highly unusual context. However, the emphasis upon tailored risk assessment is a solid foundation, and is a method with which employers are familiar.
The extension of the CJRS into the Autumn will no doubt be a very welcome development to many employers, especially those in the service, retail or hospitality sectors who are unlikely to be able to open their doors until mid-summer at the earliest. The option to extend furlough for some staff into July may help provide much needed breathing space while businesses tentatively restart trading and find their feet.
The re-modelling of the CJRS in the August-October phase, to allow employers to claim furlough payments while employees work part time, will also arguably support employers to achieve a gradual phase-back to something approaching ‘business as usual’. This ‘part-furlough, part-work’ model may potentially increase employer admin, but is likely to have a positive operational and economic impact in many sectors. For example, progress on construction projects may be easier to achieve with a number of differently skilled employees at work part-time than with some “all-in” and some “all-out”.
However, as always, the devil will be in the detail. We don’t know yet whether the Government will prescribe the contribution employers must make to the total wage bill in this period, or whether there will be scope for consideration of what individual employers are able to afford. It is also not yet clear whether employers who have not previously accessed the scheme will be able to do so in the August-October phase. However, it may well be unlikely that new applications will be accepted as this phase is envisaged as the ‘wind-down’ of the scheme.
The extension of the CJRS into October has been hailed by some commentators as surprisingly generous. While the extra financial support will undoubtedly provide a valuable prop for employers, avoiding a cliff-edge ending to the scheme may also be intended to protect Government finances too. Although paying out more in CJRS grants, the Government will hopefully avoid both a spike in liability for the redundancy payments of insolvent employers from the National Insurance Fund and, crucially, the perceived ‘waste’ of the £12billion per month ploughed into the scheme so far, if large scale redundancies were still to be the end result.
For the 935,000 UK employers currently using the scheme, and their 7.5 million employees on furlough, the next few months are likely to throw up complex practical workforce planning challenges. Please do not hesitate to contact your usual Weightmans advisor during this difficult period.
As well as employment issues, we can also provide comprehensive expert advice on the health and safety aspects of re-opening your workplace. Please speak to Dewi Ap-Thomas at email@example.com or your usual Weightmans contact for further information.
Read the Government’s press release on the extension of the CJRS.
Read the full ‘Working Safely during coronavirus’ guidance.