Employment and Immigration Law Update – Quick fire August 2020

Further amendments to SSP Regulations, the revised HR1 form and guidance in light of collective redundancy, new guidance on self isolating and furlough fraud figures are all featured in August’s Quick fire.

Further amendments to SSP Regulations

As a result of the updated guidance from Public Health England, and the increase in the minimum self-isolation period for COVID-19 from seven to ten days, the SSP Regulations have been further amended.

The Statutory Sick Pay (General) (Coronavirus Amendment) (No. 5) Regulations 2020 came into force on 5 August. As a result, anyone isolating in accordance with the revised PHE guidance will be deemed incapable of work and, subject to fulfilling the usual criteria, will be entitled to receive SSP for the duration of that period without the usual three day waiting period. This will apply to:

• Anyone who has symptoms of COVID-19 (who must self-isolate for at least ten days);
• Those who have tested positive for COVID-19 (who must self-isolate for at least ten days); and
• Anyone living in the same household as an individual with symptoms or a positive test result (who must self-isolate for a minimum of 14 days).

For more information, see the latest PHE guidance.

Collective redundancy: revised HR1 form and guidance

A revised HR1 form has been issued, for employers to notify the Secretary of State of their intention to make 20 or more employees redundant within a period of 90 days or less.

The new form is intended to be shorter and more straightforward to complete. The accompanying guidance notes have also been updated.

A failure on the part of an employer to notify the Secretary of State of a proposal to make collective redundancies is a criminal offence, which can result in an unlimited fine being levied against the employer. Individual directors can also be prosecuted and found liable, if the offence has been committed with the consent or connivance of, or attributable to neglect on the part of, such individual.

For more information on making redundancies during furlough leave, see our recent article.

New guidance on self-isolating

The Government has published new guidance for employers and employees on the rules relating to self-isolation after returning to the UK.

The guidance covers those who are returning from a country without a quarantine exemption. The list of those countries that are exempt has recently been changed with Belgium, the Netherlands and France no longer on the list as well as a number of other countries including Spain.

The guidance briefly sets out the possible options available to employees who are required to self-isolate after a period abroad, including working from home or taking a period of annual or unpaid leave. It also provides a strong reminder to employers that the dismissal of employees who are required to self-isolate should be a last resort, and states that employment tribunals will consider all the relevant facts around a dismissal, which could include public health guidance on coronavirus.

Furlough fraud figures

According to recent news reports, HMRC has reported that by 7 August 2020, it had received 7,791 reports of ‘furlough fraud’, an increase of around 77% since the end of June. The first known arrest for furlough fraud was reported by the BBC in July.

A recent study has also found that as many as two thirds of employees have continued to work for their employer in contravention of the CJRS rules, while the employer has claimed for their wages under the scheme. The study suggests that men were significantly more likely than women to work while on furlough, particularly if their wages were topped up by their employer.

Employers are being encouraged to audit claims they have submitted under the Government’s Coronavirus Job Retention Scheme (CJRS) to uncover any inadvertent errors. HMRC are also encouraging individuals to report cases of coronavirus relief scheme fraud through their Fraud Hotline telephone service or online portal. Towards the end of August, HMRC will issue 3,000 ‘nudge’ letters to employers who they believe have over claimed through the CJRS, and it is anticipated they will contact 27,000 organisations in total (just 2% of those that claimed) although it is reassuring those contacted that it will not be “seeking out innocent errors and small mistakes for compliance action”.

Employers who have over-claimed a grant can correct the amount by adjusting their claim for the following month, or must contact HMRC to arrange for a repayment of the over-claimed sum. In accordance with the provisions of the Finance Act 2020, an employer that has over-claimed a grant and not repaid it must notify HMRC within 90 days of the date it was received, or by 20 October 2020, whichever is later. HMRC retains the right to retrospectively audit claims and has the right to claw these back through income tax assessments. It can also charge penalties in the case of deliberate non-compliance.

Further information on what employers should do if they have over-claimed is available in the HMRC guidance.

These articles are from the August 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.