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To read our latest update as at 4 November 2020, "Coronavirus: what the new lockdown regulations mean for where we can work and other lockdown updates", click here.

You could be forgiven for losing track of what the government is offering in terms of work-related financial support. 

First, we had the Coronavirus Job Retention Scheme (JRS), known as the furlough scheme. For the last five months the government has categorically said the JRS will not be extended beyond its end date of 31 October 2020. Then, in September, we had the Job Support Scheme (JSS) due to come into effect on 1 November, albeit several extensions and amendments were announced before we even got to that. Then just five hours before the end of the furlough scheme, the government announced that the JRS has been extended by a month.

This blog highlights some of the key elements of the extended furlough scheme, and looks at a few other employment-related implications of a new lockdown.

Furlough scheme extended

As part of the Prime Minister’s announcement that new national lockdown restrictions will take effect on Thursday 5 November, we were told that the furlough scheme will remain open until December. Most employers will be very familiar with the terms of the furlough scheme by now and so we won’t repeat them (though see here for our previous blogs summarising the scheme). However, there are some significant elements to the extended scheme which are worth flagging:

  • The government will pay 80 per cent of normal wages, up to a cap of £2,500 per month.

  • Employers will only be required to cover National Insurance and employer pension contributions for employees on furlough. This mirrors the level of the scheme available in August, and so is more generous than the JSS, where employers had to contribute 20 per cent of wages.

  • Neither the employer nor employee needs previously to have used the JRS. This is a significant departure from the JRS in recent months, where employees could only be furloughed if they had been furloughed prior to 30 June 2020, and should mean that more employees will be eligible to be furloughed under the extended scheme.

  • To be eligible, employees must be on an employer’s PAYE payroll by 30 October 2020.

  • Flexible furloughing will continue to be available, as well as full-time furloughing.

  • The government will confirm shortly when claims can first be made, but there will be no gap in support between 31 October, when the scheme was originally due to end and this extension.

  • We are told the extension will last for a month “until December”, although no specific end date is given.

  • Since the national restrictions are due to continue until Wednesday 2 December, it is reasonable to think the extended furlough scheme will continue until then as well.

In now traditional fashion, we are promised additional guidance “shortly”.

A new lockdown: what does this mean for return to office guidance?

For an update on this question, please see our blog "Coronavirus: what the new lockdown regulations mean for where we can work and other lockdown updates" here.

The press release about the new national restrictions states that “people should work from home wherever possible”, and so echoes the wording about work which was in place during the last lockdown. Interestingly, however, the wording in the government’s guidance on restrictions is not quite so restrictive and instead states that “everyone who can work effectively from home must do so” (our emphasis). This is the same wording as was used in the last iteration of the guidance, before the second lockdown. As we said in our recent blog, this could still give some employees scope to continue working from the workplace, since the word "effectively" has the potential to be interpreted relatively widely (and so, for example, could include reasons relating to wellbeing, inadequate workspace or reduced productivity etc). However, this will be dependent on exactly what wording is used in the legal provisions due to be voted on by parliament on Wednesday, and it would certainly appear to be more in the spirit of compliance with the new restrictions for a more narrow interpretation to be placed on the new rules. Many office-based employers are assuming that Thursday will see a return to the basic expectation that employees will work from home unless proved otherwise – and whilst it will in some cases still be possible to work from the office, it is fair to say that giving clear consideration to the reasons which might justify so doing is a sensible next step.

For people who cannot work from home, the guidance states that they should continue to attend their workplace. Travel to work is permitted where work cannot be done from home.  Anyone travelling on public transport should follow the safer travel guidance.

A new lockdown and extended furlough scheme make it more important that employers exercise caution before requiring anyone to return to the workplace, particularly where they can work from home. For more information, see our blog here.

Will shielding resume?

No, or certainly not yet. 

The government has stated that "shielding as practised in the spring will not currently be reintroduced". However, there has been a shift in the government’s position regarding clinically extremely vulnerable people and work. Since August, when shielding ended, the government has said clinically extremely vulnerable individuals could return to their workplace if it was COVID-Secure. Now, the government is advising individuals in this category to work from home: even if someone cannot work from home, they are still advised not to go to work. 

This potentially leaves employers with the tricky question of how to manage individuals unable to work from home, but also unable to return to the workplace. The government in its guidance states that they may be eligible for Statutory Sick Pay or Employment Support Allowance. However, in our view, the best option at this stage is likely to be to furlough any affected individuals under the extended scheme mentioned above.

Full guidance for individuals who are clinically extremely vulnerable is due to be published on 2 November.

Job Support Scheme – new guidance published

The Job Support Scheme (JSS) has been postponed until the furlough scheme ends – which is likely to be 2 December 2020 at the earliest.

On 30 October, detailed technical guidance was published on the JSS. This included, amongst other things, guidance on checking eligibility, claiming JSS, and calculating how much to claim. This guidance is still available online, but is now described as having been “withdrawn on 1 November 2020”. However, since the government’s intention (for now at least) is for the JSS to come into effect once the furlough scheme ends, it is likely that its content will remain valid should any employer wish to review it in advance.

For more details on JSS Open and JSS Closed, see our blog on the latest on the Job Support Scheme.

If you require further information about anything covered in this blog, please contact Rachel Lewis, Amy Wren, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2020

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