Employment Law Coffee Break | More on the CJRS, red flags on redundancies and carrying over holiday

More on the CJRS: Notice periods and naming organisations

Since our last Coffee Break the government has amended the guidance further and published a Treasury Direction on how the extended CJRS will operate. Two important points for employers using the CJRS are:

• From 1 December, no claim can be made where an employee is serving notice. This will need to be factored into any redundancy processes (although the requirement is not limited to redundancy scenarios and would also cover a dismissal on notice for other reasons or an employee's resignation, for example). Any payment in lieu of notice will also not be covered by the CJRS grant.
• HMRC will publish not only the names of employers who have made claims under the CJRS in December 2020, but also "an indication of the value of the claim" – further detail on this will be available from late November. There are very limited circumstances where an employer can apply to be kept off the list – where a serious risk of violence or intimidation would arise from publicising the details.

Please also remember that claims must now be submitted within 14 calendar days after the month the claim is being made in respect of, so claims for November must be made by 11.59pm on 14 December.

We are advising a number of employers on their use of the CJRS under the current guidance and HMRC's stance to grants claimed. Please do contact us if you have any questions.

Red flags on redundancies

Redundancies have been an inevitable consequence of the Covid-19 restrictions. While the extension of the CJRS averted the cliff edge that many were anticipating, the more recent announcement that it will not cover notice periods from 1 December has thrown redundancies back into the spotlight.

In light of the changing working practices for many organisations, our podcast highlights legal and practical points for employers to consider at this difficult time.

With consistency and fairness critical to maintaining employee relations and managing the risk of claims, we have been running training for managers and employee representatives on their roles and responsibilities in the redundancy process. Please let us know If this is of interest to your organisation. You can also sign up to the next webinar in our Agile Working series which looks at mental wellbeing at this difficult time.

Carrying over holiday

With many employers holiday year operating in line with the calendar year, we are receiving a number of queries around holiday carry over and the amendment to the Working Time Regulations 1998 introduced in March. The amendment relates to the four weeks statutory holiday which cannot usually be carried over save in limited circumstances, such as sickness or where the employee has been on family leave.

The amended WTR allows workers to carry over these four weeks of leave where it is not "reasonably practicable" to take the leave as a result of the effects of Covid-19. Any carry-over lasts for the two years' leave immediately following the year in respect of which the leave was due to be taken. The government has issued guidance on factors to consider when deciding what is or is not reasonably practicable and which cover the effects on the worker, the employer, the wider economy or society. The guidance includes specific examples.

Employers now approaching their holiday year end will need to:

• understand what carry-over of holiday is an employee is entitled to (this may be either under the statutory provisions, their employment contract or on the basis of any temporary holiday policy put in place for Covid-19) and the terms on which it can be used in the future. The new statutory carry over provisions limit where an employer can deny that leave being taken down the line;
• give all workers an opportunity to take any leave that they will not be entitled to carry forward before the end of the current leave year; and
• consider whether it is appropriate to require an employee to take leave before the end of the leave year; this will be subject to giving the correct statutory and/or contractual notice.

It will be important to ensure that managers are adopting a consistent approach, whilst taking into account any specific individual circumstances which may require modifications, to avoid the risk of legal claims and employee relations issues.

Now is also a good time to review any temporary holiday policy implemented in light of Covid-19 to check it is still relevant and make any adaptations as appropriate. We are also advising employers to look at their template contract terms to ensure that these adequately protect the employer in managing an employee's holiday entitlement – see our previous Coffee Break here.