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With England entering a second lockdown on Thursday 5 November, the Government have again revised the financial measures intended to support businesses. With the position constantly changing over the past few days and weeks, we think now is a good time to summarise the current position for businesses trying to make sense of the rules. Our summary covers both:

• What can and cannot be done under the new rules
• What support is available for businesses

Lockdown 2 – The Rules

Working from Home

As before, the Government has said that all those who can work from home should do so. If employees request to work from home and they are able to do this effectively, then you should allow them to do so. If you have vulnerable employees, for example with underlying health conditions, we also suggest you ask them to work from home.

Health and Safety

If your workplace remains open and you are asking that your staff continue to come in as usual, you will need to ensure that the environment is “COVID safe” and social distancing measures are in place where appropriate. A health and safety risk assessment should be carried out to ensure that the workplace is as safe as possible, and any risks identified need to be addressed. For example, this may include protective screens, hand sanitiser, signage and distancing measures. Be warned that the Health and Safety Executive have recently started carrying out “COVID safe” inspections at very short notice, so it is important to ensure that your business is compliant to avoid fines and sanctions. Listen to your employees if issues are raised – there are clear and obvious risks to ignoring valid concerns.

Childcare

This lockdown has some differences to last time around, with perhaps the biggest change being that schools are staying open. While this makes childcare substantially easier than the first lockdown, parents may still have childcare challenges which impact their ability to work as normal, for example due to unusual/changing school timetables. Childcare needs may fall under parental leave or “emergency time off for dependants” rules and each individual scenario will be different and should be treated as such. If you are put in a difficult situation and are unsure of the best course of action, one of the Backhouse Solicitors employment team will be able to explain your options and obligations, and help you decide how to proceed.

Seeing Clients and Customers

You may be concerned about how the new lockdown will impact your ability to meet or visit customer/clients. The most recent guidance says that face-to-face client meetings can still happen but should only do so when there is no other way to perform your service. This would mean – for example – that a tradesman could still visit customers to do physical work, but an office worker who could hold meetings on a telephone or videocall should do this instead of meeting in person.

Furlough is back at 80%

The biggest help for struggling employers since the start of the first lockdown has been the Coronavirus Job Retention Scheme (“CJRS”), more commonly known as the Furlough scheme. This was intended to end on 31 October and has been gradually reducing since 1 August from 80% to 60% (see our previous news article for details) with flexible furlough allowing employees back to work part-time since 1 July.

Following the announcement of Lockdown 2, the Furlough scheme has been given new life and extended, initially to cover the new lockdown period only. In a surprise amendment however, it has now been provisionally extended until 31 March 2021, subject to a review taking place in January.

The scheme support has also increased back up to covering 80% of an employee’s wages (for the hours they are not working) and only requiring employers to pay National Insurance and pension contributions.

The revitalised CJRS is available for all employees who were on the payroll on 23 September 2020, even if they have not previously been furloughed under the scheme. It can still be used as part of a flexible furlough arrangement as well, so you can have an employee working a proportion of their normal hours if your business requires it. You can even re-employ someone whom you made redundant after 23 September 2020 (see “Redundancies” below). Of course, it goes without saying that you should continue paying staff at 100% for the hours which they do work.

For more information on the furlough scheme and how to utilise it, please get in touch with your usual Backhouse representative. If you are tempted to make wholesale changes, we would just add that the Government will be releasing further guidance in respect of the changes to the CJRS scheme and the eligibility criteria Tuesday 10 November 2020.

The Job Support Scheme and Job Retention Bonus are postponed

Both the Job Support Scheme (the expected replacement for furlough) and the Job Retention Bonus (the £1,000 incentive to keep staff employed) have been deferred following the extension to furlough.

The Job Retention Bonus will be redeployed at a more appropriate time, which is likely to be following the end of the furlough scheme.

The Job Support Scheme (which has been widely described as complicated and even unworkable) is also unlikely to come into effect until after the furlough scheme ends, and may even be scrapped altogether depending on the economic position at that time.

Redundancies are still a last resort option

The newly revitalised furlough scheme will be a big help to many businesses but may still not be enough on its own to save those who are forced to shut their doors again for lockdown 2. Many employers have been forced to make redundancies and if you are in this unhappy situation, we are here to help you make the difficult decisions in the right way. This can include identifying the redundancy selection pool, applying the scoring criteria, and ensuring that the process is fair and open.

On a happier note, if you have already made some redundancies and in light of the extension to the CJRS you wish to reverse that decision and furlough that employee instead, this can also be done under the new rules. As long as an employee was on the payroll on 23 September 2020, they are still eligible for re-employment and furlough under the scheme. Once again, further guidance on the process is due on 10 November 2020.

A final note of caution when re-employing staff or withdrawing a redundancy… much like making redundancies this needs to be done correctly and clarity needs to be maintained as to what payments the employee is entitled to and what continuous service applies to their employment going forward. Our employment team are here to answer your questions if you find your business is able to take this step.

Loans for Businesses

The main Government-backed loan schemes have all now been extended to 31 January 2021. These are:

• The Bounce Back Loan Scheme
• The Coronavirus Business Interruption Loan Scheme (CBILS)
• The Coronavirus Large Business Interruption Loan Scheme (CLBILS)
• The Future Fund

With so many recent changes, and even more to come on 10 November, you could easily be forgiven for being confused about the options for your business. For expert advice on how the rules apply to you, and what you need to do to stay compliant, our expert Commercial and Employment Law teams at Backhouse Solicitors are here to help.