Sympathy 'wearing thin' over uncertainty

Sympathy for the government is “wearing thin” over the uncertainty that continues to cloud how businesses should be implementing the Coronavirus Job Retention Scheme, according to a Shropshire-based employment expert.

John Merry, head of employment at Lanyon Bowdler Solicitors, said while the speed at which the new legal framework had been created was unprecedented, more needed to be done to clarify details for businesses.

He said: “Our employment law team has been extremely busy assisting employers in interpreting and implementing the government’s furlough scheme.

“The number of increments in which the law is being adapted in the employment context, and the speed with which this is being done, is unprecedented. A legal framework for dealing with furlough, and also statutory sick pay, in the context of the virus outbreak is being created on the hoof.

“From speaking to employers on a daily basis, it’s clear that people’s sympathy with the government’s position is now wearing thin, and whilst it is appreciated that it is a most difficult scenario for the government, it could have done more to provide clarity and certainty.

“For example, HMRC told the Treasury Committee on April 8 that there were no plans to bring into the furlough scheme employees who started their jobs after February 28 – notwithstanding that it always made sense to set the qualifying date for employment as the day before the Chancellor announced the scheme: March 19. Now, the qualifying date has been changed to March 19.

“However, this is effective only for employees whose pay information was submitted online to HMRC by March 19. Many employers will have processed their payroll later in the month, so there will be employees who started jobs as late as March 19 who will still lose out.

“Another example is that there has been uncertainty from the outset as to whether employees can be on holiday and furlough at the same time and, if so, what the rate of holiday pay should be.

“These are critical questions on which guidance published by Acas has been contradictory and remains potentially inaccurate, and certainly incomplete – and still there has been absolutely no clarification from the government at all.

“Further, the Treasury issued a direction to HMRC on April 15 regarding the operation of the scheme, and various aspects of it contradict the current published guidance for employers and are otherwise very difficult for even lawyers to follow.

“As regards statutory sick pay, the government has amended the legislation in piecemeal fashion since the Chancellor announced changes on March 11.

“The latest development was on April 16. It provided that, with backdated effect to March 13, employees who are at very high risk of severe illness from COVID-19 because of an underlying health condition and have been notified that they need to follow rigorously shielding measures are entitled to SSP.”

John added that businesses were also fearful of potential legal claims in the future regarding disagreements over the furlough scheme.

He said: “Clearly, many employers and employees remain confused regarding the extent to which employers are entitled to place employees on furlough and reduce their pay to the 80 per cent which will be reimbursed under the government’s scheme.

“We would be surprised if there is not in due course an influx of claims by employees who have had their pay reduced unlawfully.”

John and his team are regularly updating information regarding the coronavirus job retention scheme and statutory sick pay on the Lanyon Bowdler website at www.lblaw.co.uk