Extension of furlough until end of October

The government’s Coronavirus Job Retention Scheme will remain open until the end of October. The government confirmed this in a statement on 12 May. It also made clear that from August it intends to modify the Scheme and will be asking employers to share the cost of getting people to return to work. Specific details of the changes will be made available at the end of May.

Government guidance on risk assessments and return to work

Following an announcement by the government that workplaces should re-open where possible, guidance was published on 11 May on how to help employees return to work safely. The guidance focuses on how employers should go about conducting a risk assessment before allowing employees to return, highlighting factors which will be relevant to reducing the spread of COVID-19.

Guidelines have been published for 8 different types of workplace: construction and outdoor work, factories and warehouses, labs, offices and contact centres, homes, takeaway restaurants and facilities, shops, vehicles. As well as considering some overarching principles under health and safety law, employers need to consult the particular workplace guidance which is relevant to their setting.

It is important not to view a risk assessment as a once and for all activity; once any measures are implemented, they should be monitored and reviewed on a regular basis.

Key points to note are that:

• Employers need to carry out a risk assessment before advising people to return to work.
• Where there are 5 or more employees, the guidance states that the steps in the risk assessment should be documented.
• Where there are 50 or more employees, employers should publish the results of the risk assessment on their websites and ideally in other cases.
• Employers should download the poster/notice attached to the guidance, setting out prescribed steps they have taken to comply with the guidance.

Five key areas that need to be covered off by the employer (as per the poster/notice) are as follows:

Work from home – Employees should be allowed to work from home where possible; if this is not possible, employees should be asked to return to work, working at a social distance and mitigating risks of infection in the workplace.

Risk assessments – A risk assessment should be carried out in consultation with employees. The employer should inform and consult with trade union or employee representatives where they exist, or just employees directly in other cases, on new measures being introduced. Employers should have regard to current health and safety law, as well as equality legislation. The effect of measures on vulnerable individuals should be factored into the risk assessment.

2 metres – The 2 metre rule should be observed where possible in the workplace; this applies to entering and leaving the workplace and common areas such as lifts, turnstiles, lobbies, canteens, toilets. Employers should consider using tape markings at obvious contact points, introducing one-way systems, avoiding meetings where possible, giving office workers at least 2 metres between desks, liaising with landlords about how safe distancing will be practised in communal areas.

Managing transmission risk – This might involve introducing staggered working to manage people traffic, getting people to work in pairs or teams so that contact between groups is minimised, avoiding hot-desking (extra cleaning where this cannot be avoided), having barriers between people, getting people to work side by side or otherwise facing away from each other, having meetings outdoors, using remote technology even while in the office.

Cleaning – Cleaning frequency should be increased, particularly in communal areas such as lobbies, toilets, shower facilities. Clean handles and workstations regularly. Avoid sharing objects such as pens or whiteboards. Step up hygiene, including requiring hand-washing for 20 seconds with soap and put hand sanitisers in meeting rooms.

Government guidance on holiday entitlement and pay during coronavirus

On 13 May the government published guidance on holiday entitlement and pay during coronavirus. The guidance confirms that holiday continues to accrue and may be taken during furlough, also that the employer may require the employee to take, or not to take, holiday, provided the correct notice is given. Following the recent amendment to the Working Time Regulations 1998, which allows workers to carry untaken holiday of up to 4 weeks into the next 2 leave years if it was not reasonably practicable to take it in the current leave year, the guidance sheds light on when it will not be considered reasonably practicable to take leave. For example, it may not be reasonably practicable to take leave if there is a shortage of staff or increase in workload due to coronavirus. If the employer is not able to top up the employee's pay to 100% of salary, this is another instance of when it will not be reasonably practicable for the employee to take holiday. Various worked examples are provided.

Self-Employment Income Support Scheme opens for claims

On 13 May the Self-Employment Income Support Scheme (SEISS) opened for claims. HMRC announced that it will now begin contacting customers who may be eligible for the SEISS.

The guidance accompanying the scheme was amended and it is worth noting that certain new points have emerged or been clarified:

• A claim may only be made in relation to a trade, the business of which has been adversely affected by coronavirus or coronavirus disease. This departs from previous suggestions that the grant applied to any self-employed person (provided they fulfilled certain financial criteria).
• The claimant only needs to have completed a tax return in one of three relevant years (it is no longer confined to completing a tax return for 2018/19), albeit they need to have traded in 2018/19, 2019/20 and intend to trade in 2020/21. They need to have had an income (profit before tax) of under £50,000pa.
• The grant (now called a SEISS payment) is 80% of 3 months' earnings, typically (but it's complicated) averaged over the last three years. As was believed to be the case, no credit is given for any actual earnings received by the individual. So if they lost, say, only £100 of trading profits because of coronavirus, they would still receive up to £7,500 (the maximum SEISS payment).

IR35 deferred to April 2021

On 27 April 2020, the Finance Bill 2020 had its second (virtual) reading in the House of Commons. During the debate on the Bill, the government indicated that it would introduce an amendment to the Bill “in due course” to legislate the new commencement date of 6 April 2021 for the new rules for off-payroll working in the private sector. This is likely to mean that new draft rules will be published as they do not currently appear as attached to the Bill following the announcement of the deferral.

ICO Workplace testing guidance

The ICO has now published Workplace testing – guidance for employers on how employers should handle data if they decide to test employees for COVID-19. It reminds organisations that they still need to comply with General Data Protection Regulation (GDPR) and the Data Protection Act, which requires them to handle it “lawfully, respectfully and transparently”.