Job Support Scheme - What Does it Mean for Employers?

Posted in : Supplementary Articles NI on 15 October 2020
Legal Island
Legal Island
Issues covered: Job Support Scheme (JSS); Coronavirus

In this webinar recording, Joanne Lightburn, Senior Associate Solicitor at Jones Cassidy Brett, and Nora Smith, Chief Executive at CO3, discuss the Job Support Scheme and what it means for employers.

The Recording


Note: Due to further restrictions before and after the Christmas holiday period the Job Support Scheme has been postponed and the Coronavirus Job Retention Scheme (Furlough) is being extended until the end of March 2021.

Scott: Good morning. I'm Scott Alexander. How are you? Welcome to the latest webinar from Legal-Island. Today, we are in association with Jones Cassidy Brett, and CO3, the Chief Officers of the 3rd Sector. In fact, this was a webinar we were requested to put on for CO3 and some of their members.

We have with us Nora Smith. Nora, you're the Chief Executive of CO3. You invited us to put on the webinar. So say hello, and maybe tell the non-CO3 members what you're about, because we also invited our Annual Review delegates to join us today.

Nora: Yeah. Sure. Thank you, Scott. And thank you so much for facilitating this morning. As Scott says, my name is Nora, and I'm the Chief Executive of CO3. CO3 is a membership-based charity, and our focus is on developing and supporting leaders across the broad range of the charity sector.

Most of our members operate at Chief Executive level. However, we also have a growing number of board members and senior managers as well, recognising that leadership doesn't just sit with the Chief Executive.

So we have just over 800 members now, and we're able to offer them a range of support services, too many to go into this morning. But if anybody wants more information on CO3, I'd be very happy to have a conversation with you.

We also have a range of corporate partners. And I'm delighted to say that Legal-Island is a valued corporate member of CO3 has been for a number of years. Scott, in particular, is an active member who is involved in our mentoring programme.

And I'm really grateful for both Scott and Joanne's time this morning. I know that the Furlough Scheme has provided a lifeline, as it has done across a range of different organisations, protecting jobs and protecting cash flow when our organisations are all blindsided by the pandemic. So now that Furlough is ending and is going to be replaced by this Job Support Scheme, today is an opportunity for Joanne and Scott to walk us through the detail of the scheme to see if it is a viable option for our organisations.

So, on that note, can I say thank you to both Scott for organising and Joanne for your time, and I'll hand over to Joanne to do your own introduction and welcome.

Joanne: That's great. Thank you.

Scott: Joanne, you're from Jones Cassidy Brett. Speak away.

Joanne: Yes, that's great. Hi, everyone. It's good to be here and to discuss the Job Support Scheme and the Expanded Job Support Scheme as well. Essentially two different schemes, so it'd be interesting to hear questions from you as we go along. But what we're going to start with is just doing a couple of the slides that we've got and prepared in advance. So just looking at firstly what we're going to cover in the next 45 minutes or so.

Scott: Can I interrupt there, Joanne?

Joanne: Yes.

Scott: Just before you do, just to let the audience know, you can ask questions. There's a little question box on the right-hand side if you're looking at your screen, folks. If you drop the questions in there, we'll take them at certain times as we're going along.

The slides will get sent out. We always get that question. "Are you going to send the slides out?" Yes, we will, and we'll also send you a recording of today's broadcast as well. So you can watch back and check things if you like.

Yes, we're going to deal with that agenda you can see there, Joanne. We're going to look at the Furlough Scheme. You may have questions about Furlough Scheme. That's fine. Send them in.

Joanne has been writing a series of articles that we've circulated at Legal-Island on the Furlough Scheme and all the developments that have come through. There is, of course, a new Job Support Scheme that she's also written on. And we now have the Expanded Job Support Scheme, which ties in, as I hope we'll find, Joanne, with the announcements yesterday from Stormont about the new lockdown from Friday, but it doesn't quite kick in from then. So we'll clarify all those points.

We've had some questions in prior to today about a number of issues, about local government, about different types of contracts, about when you can bring things in. But we'll take plenty other questions, so send them in and we'll deal with them appropriately.

I'm going to hand over to Joanne and disappear off of the screen and leave it over to you, Joanne. I'll nip back when I've got some questions and to check in. Over to you.

The Job Support Scheme – Joanne Lightburn

Joanne: Thank you, Scott. Yes, I'm glad you deal with the technical bit and the questions and all of that. I'm not sure I would keep up with all that. But that's great. Definitely keep me right. Yes, all questions are great, and we'll come to those.

So, to start with, just looking the end of the Furlough Scheme, that is obviously then what prompted the government to look at what other resources of funding they could provide to support employers given the rise in infections across the UK and indeed across Northern Ireland in particular.

So the Furlough Scheme everyone was worried about kind of a cliff edge of nothing being there to support employers after that period, so opening the floodgates for mass redundancies. The answer to that and to assist and to try and prevent that and mitigate that, the government introduced the Job Support Scheme. And that, we'll come to look at shortly.

That was to cover wages in certain circumstances. But what it didn't address was the fact that what if . . . and the key thing about the Job Support Scheme was that employees must work at least 33% of their usual hours. So there was a bit of an eye-pry in response to that saying, "Well, hang on. What if we're required to close?" which indeed we are tomorrow. "Then we can't use this scheme, because it only applies to employees who must do a minimum level of work". So, therefore, the government came under pressure again to you expand that scheme. So that's the second scheme that we then got, the Expanded Job Support Scheme.

Job Support Scheme

So there are the two schemes that kind of run in parallel. And we'll look firstly on the first slide that we've got, which is the Job Support Scheme. This slide summarises what the position is for that.

So this scheme is where employers who are still open and able to function, and they have viable jobs that they are looking to protect. So this is not your restaurants or your pubs or anything like that that are required to close. This is professional services companies, much like ourselves, for example, Jones Cassidy and Brett. Our office is technically shut because we're not opening the office for people to come in and out, and we're all indeed working from home. So it's looking at that scenario where people are working.

But then again, there's going to be for a lot of businesses that knock-on impact and a reduced level of work. So, if there's a reduced level of work but you're not shut, this is the scheme to use. And the scheme runs and starts on the 1st of November and finishes on the 30th of April.

However, the government will be reviewing the position in January, and so things may change, very much like we've seen with the Furlough Scheme. It was very much a moving piece. The guidance was pretty much updated every Friday night or every other Friday night and changed. The rules changed.

So a lot of what we're looking at today is uncertain and may change. All we're working from for the Job Support Scheme is a government fact sheet. That's where all of this information is taken from on the slide that you see here.

So the criteria, if we just start with that, the criteria for this scheme is the employee, as I've mentioned, already must work at least 33% of their usual hours. And the second limb to that test to ensure they're eligible is that they must be on the payroll on or before the 23rd of September.

Now, another bit to watch out for is that you, as an employer, must also have made a real-time information submission to the HMRC on or before the 23rd of September.

So, if you have an employee, for example, that started on the 1st of September, you may not have done that. If they are monthly paid, you may not have notified the HMRC of them being on your payroll. So you'll have to carefully look at ensuring whether new starters that have just recently joined you would be eligible for the scheme.

Then the next bit for the employer, the employer must meet certain conditions. Those conditions are that the employer must have a UK bank account and a UK PAYE scheme in order to claim the grant.

There is noted on the fact sheet that for large businesses, and that's not defined as yet, there will be an additional financial assessment for those businesses. And what that assessment is going to look like we don't know. So the detail on that is yet to come.

A point to note is if you haven't furloughed any staff before and not used the Furlough Scheme, it doesn't matter. You can still use this scheme.

Much like the Furlough Scheme, the employer pays for any hours worked in full and then contributes a third of the time they pay for, for hours not worked. So it's divided essentially into three: the employee takes a pay cut by a third, the government then pays a third of the employees' usual wages capped at £697.92 per month, and then the employer makes a contribution.

So you can see the contribution that employers are required to make is significantly more than the Furlough Scheme because they're required to pay the third plus the employers NICs and pension contributions as well.

So there's still quite a bit of contribution from the employer there. And that's weighing up as an employer whether you can afford to do that when you're working at reduced capacity but want to try and save viable jobs.

Each short-time working arrangement must cover a minimum period of seven days. And this is the crucial bit on the next bullet point, is that the employer must agree the new arrangements with the employee and notify the employee in writing, and also the guidance mentions that you need to make any adjustments or changes to the employment contracts. So it must be agreed with the employee in writing.

We've got a template job support agreement, kind of a short three- or four-pager that we use and would recommend that if you are putting employees on the scheme, that you would use that, because that's the way . . . You need to be clear that the employee knows that part of their salary is coming from claiming a grant under the scheme, and that's important.

Another key difference between Furlough and Job Support Scheme is that employers . . . it's paid in arrears. So the employer needs to pay the government's contribution up front first, and then it's reimbursed, and that first reimbursement is not going to be until December. So the employer is still going to be a bit . . . given this starts on the 1st of November, the employer is going to be a bit out of pocket you can see there. Again, it's whether you can carry cost and wait on reimbursement.

Another huge key point that's very different to the Furlough Scheme is that you cannot give notice of redundancy. You can't make anyone redundant whilst they're on the JSS scheme, as we'll call it.

So that is different because on the Furlough Scheme, you can consult with employees and serve notice of redundancy. If they're working out their notice period, you can claim the grant back under the Furlough Scheme for their cost of their notice pay as they work it out. You can claim now if they're paid in lieu of notice under the Furlough Scheme, but they can work out their notice between now and the end of October. That's different. That's not the case here. But what you could do is remove the employee from the JSS scheme and then make them redundant.

Scott: Could I maybe come in here, Joanne? We've had a few questions, and so before we move on to the next slide and deal with the extended scheme, what I'd like to do is maybe pick up a couple of the questions that have come in.

Joanne: Oh, that's great.

Scott: They're all anonymous, by the way. If anyone's sending them in, I'm not going to read out any of the names. I can see the names, but I'm not going to tell you what they are.

We've got one here.

How does the Job Support Scheme interact with short-time working? Can an employee argue for redundancy pay about four consecutive weeks short-time working under the Job Support Scheme?

So you'll explain that one in a second.

And how does the Job Support Scheme impact on statutory maternity pay, contractual maternity pay, for example, if someone will be on contractual maternity pay in January 2021?

That's quite a complex question, but I think what they're trying to say is if you put somebody on short-time working and it's under 50% of their work, then normally they would be able to claim redundancy pay after four consecutive weeks or if there are so many weeks in 13, isn't it?

Joanne: Yeah, that's right.

Scott: So does that still apply? There's never been a removal in that rate, has there?

Joanne: There's not. So I would assume it does. But again, yeah, there's nothing mentioned about . . . nothing in the scheme changes the usual provisions within employment law. So yeah, there's that possibility. That's a very interesting question actually, whether that would still apply or not.

In this situation, we would hope that, after the four weeks, things will reopen, and it may never get to that stage that you'd like to think things would reopen. However, we just don't know how that's going to go at the end of the four weeks and whether this indeed will be extended.

So, yeah, interesting whether someone can claim for redundancy pay in those circumstances because, actually, they're in a slightly different position than they ordinarily would be because they are receiving a certain level of pay. So I'd need to check the detail of that because that's quite technical. The short-time working arrangements on that are quite technical, so you'd need to really check that point to see whether they're still covered in the scheme.

Scott: It was specifically excluded in Ireland, so if anyone's listening south of the border, it has been excluded. But I don't remember seeing anything on this side of the border or even across the water that said that you can't claim redundancy if you're furloughed. I suppose if you're still getting your money, it's less likely . . . if you're getting two-thirds of your pay, it's unlikely that you're going to claim . . .

Joanne: Yeah, you're right, Scott. There's nothing that has changed our employment legislation on that point. But I think it would be unlikely that you could claim it, but I'd have to check that point really.

Scott: You have to go back to pre-furlough to calculate what their earnings are. They changed that bit of legislation.

What about maternity pay? I suppose that wouldn't make much difference. If you're on maternity, you're on maternity and you would get your money worked accordingly, yeah?

Joanne: Yeah, you just got your usual statutory maternity pay. Yeah.

Scott: Are casual employees . . . well, I'm going to hold that one back who sent in that question about are casual employees eligible for Expanded Jobs Support Scheme, and how do you calculate it? We'll come back to that one there. I'm going to leave the next one because it's on extended.

Can holidays be taken during working hours under the Job Support Scheme?

Joanne: Yes is the short answer. And I think . . .

Scott: Yeah, go ahead.

Joanne: Sorry. Go on, Scott.

Scott: The follow-up on that one was

"Are employers permitted to top up wages to 100% within the terms of the JSS?" Can they top it up?

Joanne: No. So the current expectation is the employers can't top up. Now, that's different, again, to Furlough. There's an actual line in the government fact sheet that says that the expectation is employers cannot top up to full pay.

And I suppose the thinking there is that if you're on reduced hours, reduced working, and reduced everything, that kind of fits with that, that you shouldn't necessarily be in a position to top up. But that's different to Furlough.

Scott: Okay. Well, I'll come back to another question in a moment. You're going to move on to the next slide I think and deal with the extended scheme. I'm going to take my camera off.

Joanne: So this is just a quick example before we just move on to the Extended Job Support Scheme. This is the JSS for the open employers. It's just a working example there just so you can have a look at the different levels of contribution that are made by the government and made by the employer, and then what the percentage of usual salary the employee receives. Clearly, the more hours they work, the more they're going to get paid under that arrangement.

Extended Job Support Scheme

So we'll just move on to what I'll call the EJSS. This is for employers who are actually legally required to close. So that is what the guidance says in the fact sheet that we've got. It's where you're required to close.

Now, importantly, it's not where you just decide to shut yourself. So you think, "Well, I'll take a two-week break", and you decide to shut your business. This scheme won't cover you. The scheme will only cover you if you're required to close due to the national lockdown.

Also to note, it will not apply to where a business is required to close by the local public health authority because, say, there's a certain outbreak in your factory or your workforce and you must shut again. This scheme doesn't cover that scenario.

It's where you've been required to shut, like the NI Executive's announcement last night requiring restaurants to shut and other certain industries, like museum industries, bars, and things like that that are required to shut, where there's been that direction that you must shut.

I know at the moment . . . I heard on the radio this morning hotels are questioning whether they're required to shut and, a matter close to my heart, whether nurseries are required to shut because they're different from the education authority and dealt with by the Department of Social Services or whatever. They're outside of the education.

So there are a lot of industries currently even today that are saying, "Are we required to close?" And that will be an important question then for whether or not this scheme applies to them.

Then who is it for? Well, it's only for employees who cannot work, clearly, because their business is shut. And the employee in order to claim under the scheme for an employee, you must have ceased to work. So you cannot be working at all. And then in that scenario, the government will pay two-thirds, so about 67%, of your normal pay of each eligible employee up to a cap of £2,100 per month. And much like the furlough grant, the whole grant must go to the employee.

So there's a much more significant contribution here obviously from the government to assist employees. A lot of businesses have said it doesn't go far enough, and employers are still required to bear the costs of employer's NICs and pension contribution. It doesn't cover that, so employers are still going to be significantly more out of pocket than they are under the Furlough Scheme.

Again, the grant will be paid monthly in arrears with the first payments due in December. So there's that gap as well for people from cash flow purposes to try and carry the cost of wages until they get the government grant and funding in.

And importantly, like we drew attention in the JSS position, employees cannot be made redundant or put on notice of redundancy when on the EJSS. But again, you could remove the employee from the scheme and then serve them with notice of redundancy.

So question whether you can consult with employees when they're on the EJSS. On the Furlough Scheme you can, is what the current thinking is, and that's been the position. You can consult with employees whilst they're furloughed. So, here, there's nothing in the fact sheets about whether you can actually consult with employees. I would have thought you could, though. So it's looking at that.

And so, once the business reopens, obviously, you can't use the EJSS. But clearly, you could then switch into the other scheme, which is the JSS that we've just talked about earlier.

Scott: Okay. Thank you very much, Joanne. Thanks, everybody, for the questions that are coming in. There are quite a few coming in. But we didn't really pause long on the calculations, which have come in from the government and indeed the CBI that we have for you. We're getting those calculations so you can work it out on the Job Support Scheme. The Extended Job Support Scheme is different.

I just want to clarify a couple of points and then move on to a couple of questions here. Although there's lockdown effectively or full shutdown for a number of businesses from tomorrow, they wouldn't be eligible for this because it doesn't kick in until November. They would be effectively furloughed if you're forced to close down. Is that correct at the moment? Am I right?

Joanne: At the moment, yes.

Scott: If there's no work for anybody, they are still furloughed until the end . . .

Joanne: … November. That's correct, yeah. So they'll remain on furlough until the 31st of October and then be put on to this scheme. Yeah, that's a good point.

Scott: Somebody has written in and said that the fact sheet actually says that the Expanded JSS specifically states that employers can top up pay if they wish. So there's a difference about top-up between the Job Support Scheme, which is to give people who are working a little bit extra money and the ones who cannot work because they're forced to close. You can top up that if you want. In the same way, you can top up furlough payment.

Joanne: Yeah, that's right.

Scott: We'll be coming to a comparison slide in a minute, Joanne. I know that's coming up because I've seen the slides, obviously. When we were first chatting about this, you effectively said that the Extended Job Support Scheme was almost like an extension of the Furlough Scheme to organisations that are forced to shut, and that's effectively what this is about. That's the difference between the two.

Joanne: Yeah, exactly. And I think a lot of the principles of the Furlough Scheme will hopefully apply. I'd be surprised if having over all these number of months and we've gone through all the government guidance, changes, and updates that they'd try and start to do this scheme in an entirely different way. So I would expect a lot on the similar principles and things will apply to this scheme. But yes, the devil is in the detail and we still are waiting that. So, yeah, we're still waiting the more detailed guidance, because we're just working from these fact sheets now and what they say.

Scott: Okay. We'll expect clarification later, but you're right. You would expect them to do something very similar given that they appear the same. And I suppose the fact that they're talking about paying two-thirds in both of the schemes pretty much, depending on how many hours somebody is working, might be an indication.

A question here says,

"If the grants are paid monthly in arrears, what if an employer cannot afford to pay up front? Is that them just stuck? They can't make a claim?"

Joanne: Yeah, I think that that's a difficult one because then you're in a situational . . . yeah, you're pretty stuck there because then you can't even afford to reach getting to when the scheme will help you.

Now, in that situation, whether you have a right in your contractual right in your contract to lay staff off unpaid for a period before this kicks in. But again, you've still got the position that you're always paid in arrears. So, if cash flow wise you can't afford it, then you're into unfortunately redundancies territory.

Scott: Or maybe borrowing money under one of the other schemes to pay the wages so that you can . . .

Joanne: Yeah, the initial grants that you get that assist to tide you over.

Scott: Okay. I'm going to disappear. Keep your questions coming in, folks, and we'll come back in a little minute.

Joanne: Yeah, that's great. So, on the next slide, we've got a comparison of the two schemes. This is what we've already covered, but I just thought this was a useful table to have and to compare each of the things in the scheme, which we've already been through.

And also, at the bottom of the table, you can see that there are actually links to the government fact sheets, which we've been talking about. So you can click on those and they'll hopefully take you to the government fact sheets. And that's where the detail . . . all that we're talking about today is essentially from there.

But again, happy to take any more . . . Scott, I don't know whether we look more questions on the back of that. I wasn't intending to go through this in detail because it's all very much a repeat of what we've already said this morning on the two earlier slides.

Scott: Okay. Well, if you're listening, folks, you'll be getting those slides. I actually really like that comparison thing there. I think it helps set the things out pretty well.

We have a question that's coming in here.

Are local government employees allowed to access this new Job Support Scheme?

Joanne: This question has been asked a lot of us, of our public sector employers. The answer is unfortunately we don't know at the moment. I know that's not helpful, but we don't know.

We can perhaps reflect on what the Furlough Scheme position is. Originally, when Furlough Scheme came out, in the guidance it specifically said the government did not expect public sector employers to use it. That bit of the guidance was then deleted, and there was a provision put in there that if your staff receive public funding, then you would expect them not to use the scheme because you should be using the public funding. But it didn't entirely shut off the possibility of public sector employers using the Furlough Scheme, and indeed some leisure centres, for example, have.

So we just don't know, and we'll be seeking . . . hopefully, the more detailed government guidance will provide clarity on that, because we're clearly up against it now for the 1st of November for when all these scheme starts. So I'd hope we get an answer soon on that.

Scott: Okay. It's a bit difficult if you have to shut all the gyms effectively and the swimming pools, and there's no money coming in for them and you're not getting your income because those are revenue-raising facilities. So it's a little bit tough for them.

There's another question that's come in here, Joanne, about clarification. I don't know that you know the answer, but you might have a better indication of what they are. It says,

"When can we expect further clarification for large businesses?"

And that goes back to the comment that there were a number of Premier League Football teams, for instance, that used the Furlough Scheme, but they were still posting large profits. Large organisations who are furloughing staff, but they're still bringing in lots of profits.

We do have a specific question that I'm going to ask here, because it came in earlier in the week.

What exactly is a large company?

We think we will be classed as a large company, and we're looking at working of the new scheme. We're unsure if we would be able to take advantage of it. We have different trading entities and some have been severely affected and needed to furlough colleagues whilst a part of the business in the same trading entity has grown in sales." It's a bit like Legal-Island. Their events were all cancelled and yet e-learning has done extremely well for us here.

Would the view be taken as a business on the whole therefore excluding us from the scheme, or can certain parts avail of it? And if we can't avail of it, are we into a redundancy situation if we can't provide work for those who are not required at the moment?

So that's a complex question, but what's a large business and can you give clarification?

Joanne: It is. I would say, unfortunately, until we know the detail of what this financial assessment looks like, I can't really answer the first part of the question. Unfortunately, we're guessing at . . . because this is new and not something that was limiting for the Furlough Scheme in any way, we just don't know at this stage.

But if the answer is that in whatever way this assessment is structured, your business doesn't tick the boxes and you're excluded from using the scheme, and in certain areas of your business, there was a reduction in work, a significant reduction of costs that you can't carry, then yes, you would certainly be into a redundancy situation there if you were needing to or just had to make cuts.

Scott: Yeah. And certainly, if you're part of the redundancy definition, would be where you're closing certain parts of the business or you don't require so many workers of a particular kind, so you could certainly effect those redundancies.

There's another question just coming on there. "Sorry, I missed the beginning". I don't know why.

"Can small businesses utilise this?"

And specifically there, the ones that have been impacted, many of them are small businesses, restaurants and pubs and things like that.

Joanne: Yes.

Scott: So the answer to that is presumably specifically, yes, you can. There's no lower limit on wages or anything, is there?

Joanne: No, not at all. And also, the SMEs don't have to meet this whatever it's going to look like, this financial assessment test. That's only for large businesses, which is yet to be defined. Probably looking at those with more than 350 employees perhaps.

Scott: Okay. We have another question coming in here.

"If your business has a restaurant and bar and the gallery, and the entire business closes, can those staff who work in the gallery only be placed on the Extended JSS?"

I suppose that affects quite a lot of businesses that would be using their kind of carryout and delivery service type.

Joanne: Yeah. So what I would say for that is you may end up with kind of a split workforce, so you can only use the EJSS for those employees who are required . . . they've ceased working. They can't work. So you can only use that . . . for example, your waitresses perhaps and your bar staff would go on the EJSS because they're not working at all.

But if you still want to operate your takeaway service and run the kitchen, for example, or certain functions of your business that can offer delivery services, and those people aren't continuing to work, then you perhaps use a hybrid of the two. Perhaps you're putting those people on the JSS.

We're still not clear on the terms of how the two schemes operate and work together, so that's just an interpretation of the current requirements of each scheme.

Scott: Okay. I think the worry and uncertainty for me . . . not so much me, but for many other people, would be that if you run a bar and you're doing your takeaway thing, if you use takeaways and deliveries, does that exclude you from claiming the extended scheme? It doesn't. You can still separate your staff and say, "You come under EJSS. You come under JSS". That's brilliant.

Joanne: where it’s applicable for those employees. Yeah, exactly.

Scott: Okay. Perfect. The JSS fact sheet, as we discussed, states that employers cannot top up employees' wages. Do you think this is likely to change on that particular one? Your earlier answer was probably not because it's for ones that can actually work, whereas the extended scheme is for people who cannot work, and that's where you can expand. And that's one of the differences in that.

Joanne: Yeah, that's right. With these things, I guess perhaps like the Furlough Scheme, it kept us on our toes. A lot of this may change when the detailed guidance comes out. But yeah, we'll wait and see.

Scott: This is, I suppose, a linked question to one of the previous.

"Is it an expectation that restaurants evolve to takeaways only and therefore could be 'open', therefore the Expanded Jobs Support Scheme would not be applicable?"

I suppose that's a business decision if you want to continue trading. If you don't have a takeaway and you shut it down or it's not making any money . . . what happens if you have a takeaway part and it's not making any money? You have to close. That isn't part of the extended because you're not forced to sell that if it's separated. Is that the way it would work?

Joanne: Yeah. That's what I'd say.

Scott: It's pretty tough for people, I have to say.

Joanne: Indeed.

Scott: I think about the other question that came in earlier.

"Can staff be asked to train in addition to work time under the Job Support Scheme?"

Joanne: Yes, they can. I don't think that there's specific mention of that, but yes, they can. I'd be surprised if anything came out to say otherwise.

Scott: So our earlier table that you had on the Job Support Scheme looking at the percentages, you could have somebody coming in one day a week, which is 20%, to work one day a week, which is another 20%, which is training, that's 40% that's being worked. Therefore, the government and the employer would have to pay a third each of what's left, which is a third of the 60%. And that would be the wages that the person would get in that particular circumstance. Is that correct?

Joanne: Yes. That's right.

Scott: Good.

What happens with holidays? We'd asked that before, but how do you calculate holidays? Is it 100% of their normal wage, or if they take holidays is it 67% of the wage, say, or 80%, looking at that table that we've had before?

Joanne: So it'd be just 100% of their normal salary, their normal pay, when they're on holiday. It's a bit like when they have a working day, they're working the full day, then it's their usual full pay. So it's that for holiday as well.

Scott: You may not know the answer to this, but are the employers . . . if you're making your application for the grant and some of the hours were holidays, are you excluded from claiming the government cut of that?

Joanne: I don't know.

Scott: I don't know either. These things would come up. I suppose they're not working that day, it's not their working time, but if somebody is getting 100% of their wage, they get a full week's wage because they take a week's holiday now. I don't know if you're able to claim for it.

Joanne: Yeah. I don't know. I'd need to check.

Scott: Okay. There are a couple of things that we will check, folks. And what we'll do is we'll ask . . . Joanne regularly writes articles for us when these things develop. So maybe, Joanne, we'll ask you to check up on the holiday and indeed the redundancy questions there when we come back, and we'll send that out to everybody.

I just want to check and see if there was a previous question. If there are any other questions, please get them in.

Either the Extended Job Support Scheme or the Job Support Scheme, do they apply when a government says, "Work from home", thereby effectively closing the business? Or is it only when the government says, "Don't travel to this particular region", and you can't operate? Or is it when you get the restrictions that were announced this week about a particular business that says, "You have to close"?

So there's not a huge difference between the government saying, "Don't use public transport", and public transport have no work, or the government saying, "We tell the public transport to shut". They're not saying that. What they're doing is they're turning around to pubs and restaurants and others and saying, "You have to close".

But what about, because of what's happening here, they say,

"Don't go into the workplace. Operate from home wherever you can", and basically, the business becomes dysfunctional and it can't work? Are they totally excluded from the schemes?

Joanne: At the moment, yes, they would be. So, if you're all working from home and it's just not effective and you're not able to operate and all the rest, but then . . . The EJSS only applies where you're legally required to shut your business. So it wouldn't apply in that sort of scenario as far as I can . . . my interpretation of the current fact sheet. Quite harsh, but yeah.

Scott: It'll be a bit rough on some of them. But presumably, if you can work from home, but you've only gotten enough work for your employees for about a third of their hours plus, not 100% hours, that would apply for the JSS, the Job Support Scheme. You would get the top-up provided they're able to work.

Joanne: Yes, exactly, provided they can do 33% of their work.

Scott: I think it's about the last question that have come in here. No, two. Is there a timeframe of when the government will offer further clarification or guidance?

Joanne: No, unfortunately. I wish I knew the answer to that question. I regularly check my usual sources about when things are updated and people are asking, but sadly no. I'm surprised we haven't heard by now, to be honest, but we'll wait and see.

Scott: Are casual employees covered here? And if so, how do you calculate somebody whose hours fluctuate?

Joanne: Casual employment? There's no specific reference to them in either of the two fact sheets, but provided they're an eligible employee and tick all the other boxes, that they were on the books as it were on or before the 23rd of September and tick all those boxes, then I don't see any reason why casual workers wouldn't be included.

As to how you calculate their hours and how that all works, that's very technical, very detailed. And I think previously for the Furlough Scheme, there were quite a number of examples that may help with that. But for the JSS and the EJSS, that would be hopefully in the detailed guidance to come, how that would be calculated.

Scott: It says here,

"Can self-employed people use the extended Job Support Scheme?"

For example, one of the things they stopped, I think, is beauty therapists going from house to house. So would they be excluded? They're not an employee, so they're not on PAYE. Does that mean they are excluded?

Joanne: Yes, this scheme is not for self-employed who's not on PAYE.

Scott: Okay. I wanted to read this one here.

"How will the calculation work for Job Support Scheme in regards to employees whose hours fluctuate weekly?

The Furlough Scheme, it was based in the same period from the previous tax year. Will the Job Support Scheme . . ." We're still waiting to hear from that. Is that . . .

Joanne: Still waiting. I'd expect that the government won't reinvent the wheel, and it will be much the same calculation. And in fact, the fact sheet suggests so. But again, we would like to see that confirmed in the detailed guidance.

Scott: Okay. Thank you very much, Joanne Lightburn from Jones Cassidy Brett.

Moving on, we do have an offer, folks. We'll be sending out a little link there, eLearning. I mentioned it earlier. It's a 25% off offer there coming on a number of things. It says get in touch with Debbie, if you're interested in any of those.

A lot of organisations are now taking the opportunity to train their employees remotely, and it can be done anywhere, obviously, because it's all on eLearning. So you'll get that offer.

A little reminder that there will be an Annual Review coming up of employment law and Joanne's colleague is going to be there. And if Nora is still around, Nora might come back to say cheerio from CO3. Nora is going to be on one of the panels. She's going to be looking at engagement of remote workers. There you are, Nora. You're back. If you can hear us.

Joanne, your colleague Adam Brett, we've done a thing. Rolanda who's working all the tech stuff here in the L&D department at Legal-Island has written a fantastic document on reasonable adjustments for disabled workers. And it pulls together hundreds of cases from the courts and tribunals where they've recommended actions that are either reasonable or they've said, "No, that's unreasonable". And we've built tables and comparison things there, plus links to all the organisations that help disabled people, plus an explanation of the law. It's a fantastic document that we're launching or your partner Adam Brett is going to be launching at the Annual Review on the 4th of November.

Nora, you're also going to be on one of the panels there dealing with things on the 4th of November, if I think, as well. It's a two-day conference. Obviously, if you want to come along, you can get details on the website.

Nora, would you like to say anything to your members or anything before we disappear?

Nora: I would indeed. Can I just finish by saying thank you to Joanne for stepping us through the details of the new Job Support Scheme? I'm sure you've got many demands on your time, so really appreciate you taking the time out of your busy schedule to walk us through and for taking such a wide range of questions and indeed the offer to follow up on some parts of it. As you said, the devil remains in the detail and there are some points that still need to be clarified on.

And thank you, Scott, for responding so quickly and setting this up. I think we had sent the email and before we had pressed send, you nearly had it organised. So really appreciate your swift response and support to members. I certainly found it really useful, and I hope all of our delegates online today did too. I look forward to seeing you all at the virtual conference on the 4th of November. Thank you.

Scott: No problem. Thanks very much, Nora. Thanks very much, Joanne. You can see before you, folks, our next webinar is on the 6th of November. If you have any questions, get them in to Rolanda, and we'll deal with them the next time. Thanks very much, everybody. Bye. Thank you.

Joanne: Thank you. Bye.

Nora: Thank you.


This article is correct at 15/10/2020

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

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