Job Support Scheme: expansion of the scheme and further details released

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Employment Law News

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Job Support Scheme: expansion of the scheme and further details released

Last month we reported on the new wage subsidy scheme designed to replace the Coronavirus Job Retention Scheme (i.e. furlough). With a second lockdown coming into force on 5 November 2020, the Job Support Scheme has been delayed until early December 2020. Here, we outline how the Job Support Scheme will work.

What is the Job Support Scheme (JSS) and when is it coming into force?

The JSS is the successor to the Coronavirus Job Retention Scheme (CJRS) or “furlough” scheme and will come into operation after the CJRS closes. Initially, the JSS was to run between 1 November 2020 and 30 April 2021. However, the second national lockdown (between 5 November 2020 and 2 December 2020) means it has been delayed. Instead, the CJRS will run for the duration of the lockdown and the JSS will come into force thereafter.

The newly published JSS Policy Paper provides that the JSS is intended to “…support individuals and businesses to deal with the challenges created by coronavirus this winter” and “help employers retain their employees”.

There will be two forms of support available under the revised JSS:

JSS Open: this is available for businesses that are operating but facing decreased demand. The intention is that JSS Open will allow such employers to reduce their employees’ working hours and claim wage support, rather than make redundancies.
JSS Closed: this is available for businesses that are legally required to close their premises as a direct result of coronavirus restrictions set by one or more of the four governments of the UK.

What wage support is available under JSS Open?

Under JSS Open employees must work at least one fifth of their normal working hours but may work more than this if needed. Note that under the original proposals, support would only have been made available for employees working at least one third of their normal working hours, and so the revised scheme is more generous.

The employer is responsible for paying the employee for all the hours actually worked (and such pay must comply with national minimum wage legislation). However, the burden of the unworked hours will be split three ways:

The Government will pay 61.67% of the “reference salary” up to a maximum of £1,541.75 per month (note that under the original proposals the Government would have paid only 33% up to a maximum of £697.92 per month).
The employer will pay 5% of the “reference salary” up to a maximum of £125 per month, but they may pay more if they wish to do so (note that under the original proposals the employer would have had to pay 33%).
The employee will suffer a wage reduction for the remaining third of the unworked hours.

For these purposes, “reference salary” includes: regular wages; non-discretionary payments for hours worked, including overtime; non-discretionary fees; non-discretionary commission payments; and piece rate payments. It does not include: discretionary payments, bonuses or commission; non-cash payments; and non-monetary benefits (e.g. benefits in kind or salary sacrifice).

The employer is also responsible for paying employer’s National Insurance Contributions (NICs) and employer’s pension contributions on the full amount paid to the employee (including the amount paid by the Government).

In practice, employees earning up to £37,500 per annum will only suffer the wage reduction caused by the lost third of pay for the unworked hours (see Worked Example 1). However, higher earners will suffer a wage reduction by virtue of the application of the cap on the employer’s and Government’s contributions and the lost third of pay for the unworked hours (see Worked Example 2). The higher the salary, the greater the wage reduction.

Worked example 1: a full-time employee who normally works 35 hours per week and is paid an annual salary of £37,500 / monthly salary of £3,125:

During the life of JSS Open an employee works one fifth of his/her normal working hours. The employee’s monthly salary will be paid as follows:

• employer pays £625 for the worked hours and, by virtue of the employer’s cap, £125 in respect of the unworked hours;

• Government pays £1,541.75 in respect of the unworked hours; and

• employee suffers a wage reduction of £833.25.

The employee receives a total of £2,291.75 per month (or c.73% of their normal pay)

The employer pays a total of £750 per month (or c.24% of normal pay), plus employer’s NICs and employer’s pension contributions on £2,291.75 per month, in exchange for the employee working 20% of his/her hours.

Worked example 2: a full-time employee who normally works 35 hours per week and is paid an annual salary of £120,000 / monthly salary of £10,000:

During the life of JSS Open an employee works one fifth of his/her normal working hours. The employee’s monthly salary will be paid as follows:

• employer pays £2,000 for the worked hours and, by virtue of the employer’s cap, £125 in respect of the unworked hours;

• Government pays £1,541.75 in respect of the unworked hours; and

• employee suffers a wage reduction of £6,333.25.

The employee receives a total of £3,666.75 per month (or c.37% of his normal pay).

The employer pays a total of £2,125 per month (or c.21.25% of normal pay), plus employer’s NICs and employer’s pension contributions on £3,666.75 per month, in exchange for the employee working 20% of his/her normal hours.

What wage support is available under JSS Closed?

Where an employer is legally required to close their premises as a direct result of the coronavirus restrictions, they will be able to apply under JSS Closed for wage support for employees who are unable to work. Under JSS Closed, each eligible employee will be paid as follows:

The Government will pay 66.67% of the “reference salary” up to a maximum of £2,083.33 per month.
The employer is not required to pay anything to the employee but may pay something if it wishes to do so.
Assuming the employer pays nothing, the employee will suffer a wage reduction of 33.33% or more if the employee is higher paid.

Guidance on the meaning of “reference salary” for these purposes will be published shortly.

The employer will be responsible for paying employer’s NICs and employer’s pension contributions on the full amount paid to the employee (including the amount paid for by the Government).

In practice, employees earning up to £37,500 per annum will only suffer the wage reduction caused by the lost third of pay (see Worked Example 3). However, higher earners will suffer a wage reduction by virtue of the application of the cap on the Government’s contribution and the lost third of pay (See Worked Example 4). The higher the salary, the greater the wage reduction.

Worked example 3: a full-time employee who normally works 35 hours per week and is paid an annual salary of £37,500 / monthly salary of £3,125:

During the life of JSS Closed the employee’s monthly salary will be paid as follows:

• employer pays nothing;

• Government pays £2,083.33; and

• employee suffers a wage reduction of £1,041.67.

The employee receives a total of £2,083.33 per month (or c.66.67% of her/his normal pay).

The employer pays employer NICs and employer pension contributions on £2,083.33 per month.

Worked example 4: a full-time employee who normally works 35 hours per week and is paid an annual salary of £120,000 / monthly salary of £10,000:

During the life of JSS Closed the employee’s monthly salary will be paid as follows:

• employer pays nothing;

• Government pays £2,083.33; and

• employee suffers a wage reduction of £7,916.67.

The employee receives a total of £2,083.33 per month (or c.20.83% of her/his normal pay).

The employer pays employer NICs and employer pension contributions on £2,083.33 per month.

Which employers are eligible to apply for support under the JSS?

General eligibility criteria – all employers

All employers with a UK bank account and a UK PAYE scheme are potentially able to claim a JSS grant, regardless of whether or not they have claimed under the CJRS before. However, organisations that have staff costs that are fully publicly funded should not use the JSS.

Employers will be able to claim grants under both JSS Open and JSS Closed at the same time for different employees (e.g. a pub chain may have employees working reduced hours in pubs in areas subject to tier one and tier two restrictions and have employees not working at all where pubs have had to close in areas subject to tier three restrictions).

Employers claiming a JSS grant will still be eligible to claim the Job Retention Bonus if they are eligible. You can read more about the Job Retention Bonus in our briefing here.

Additional eligibility criteria – employers claiming under JSS Open

Employers wishing to make a claim under JSS Open must meet the following additional eligibility criteria:

Financial Impact: employers with 250 or more employees on 23 September 2020 must undertake a “Financial Impact Test” demonstrating that their turnover has remained equal or fallen, to show that they have been adversely affected due to coronavirus. (Employers with fewer than 250 employees on 23 September don’t have to do this). Further details of the Financial Impact Test are set out in the JSS Policy Paper. The Government says that it expects (but will not require) employers with 250 or more employees not to make capital distributions while claiming JSS Open (or JSS Closed).
Affected employees: the employer may only claim in respect of employees who are working reduced hours (and at least 20% of their normal working hours). Training will be treated as working time provided it is paid for by the employer at the normal rate of pay.
Consultation and agreement with employees: the employer must have consulted with affected employees and reached a written agreement with them (or, where relevant, a written collective agreement with a trade union) on the terms of the temporary working arrangement before making a claim. This agreement must be kept for five years and be available for inspection by HMRC upon request. Further guidance on what to include in the written agreement is expected shortly.

Importantly, the JSS Policy Paper highlights that when employers are making decisions, such as to whom they should offer reduced hours, employment and discrimination laws will apply in the usual way and must be complied with.

Additional eligibility criteria – employers claiming under JSS Closed

Employers wishing to make a claim under JSS Closed must meet the following additional eligibility criteria:

Closure of business premises: the employer’s business premises must have been legally required to close as a direct result of coronavirus restrictions. This includes premises restricted to delivery or collection only services and those restricted to provision of food and/or drink outdoors. However, business premises required to close by local public health authorities as a result of specific workplace outbreaks are not eligible for JSS Closed.
Claims may only be made while closure restrictions are in place: claims under JSS Closed may only be made while the relevant restrictions are in place and will not cover any period when the premises are legally allowed to reopen (although the employer may then be able to claim under JSS Open if eligible).
Affected employees: the employer may only claim in respect of employees whose primary place of work has been legally required to close and such employees must cease work for at least seven consecutive calendar days.
Consultation and agreement with employees: the employer must have consulted with affected employees and reached a written agreement with them (or, where relevant, a written collective agreement with a trade union) on the terms of the temporary working arrangement before making a claim. This agreement must be kept for five years and be available for inspection by HMRC upon request. Further guidance on what to include in the written agreement is expected shortly.

Further eligibility criteria for JSS Closed will be published shortly.

Which employees are covered?

In order to make a claim for wage support under either JSS Open or JSS Closed the employee in question must meet these eligibility criteria:

Employees only: to be an employee for the purposes of the JSS, the individual must be treated as an employee for income tax purposes (regardless of what type of contract they have).
On payroll: the employee must have been on the employer’s payroll between 6 April 2019 and 11.59pm on 23 September 2020 (i.e. a Real Time Information submission notifying payment to that employee to HMRC must have been made at some point in that period). Employees who were in employment on 23 September 2020, but were terminated after that date, may be rehired and claimed for under the JSS.
Not redundant or under notice: the employee must not have been made redundant or be serving a period of statutory or contractual notice during a claim period.

How are JSS claims made?

The JSS will open after the end of the lockdown and the closure of the CJRS. Currently, this means the JSS should start on 3 December 2020. However, this is not certain as the lockdown period may be extended beyond 2 December 2020 if the “R rate” is not reduced below 1. It is not clear how long the JSS will run for. The original plan was that it would close on 30 April 2020. However, as the situation is fast-moving, we should expect this date to be reviewed in due course.

Grants will be paid in arrears, meaning that a claim may only be submitted once payment of the full amount claimed has actually been made to the employee and has been reported to HMRC. This is in contrast to the procedure under the CJRS, where grants could be claimed in advance of paying staff. Employers are not permitted to charge the employee an administration charge or fee which would have the effect of reducing wages below the amount claimed under the JSS.

How will HMRC manage fraudulent claims?

HMRC will check claims and payments may be withheld where it suspects a claim is ineligible. Where a claim is found to be fraudulent, the full amount of the grant must be repaid and penalties of up to 100% of the grant may be applied.

In an effort to encourage the reporting of fraud by the public, HMRC intends to publish the names of all employers who use the JSS. It is also considering publicly “naming and shaming” employers who are charged penalties for making a fraudulent JSS claim.

Where can employers find out more?

Employers can find out more about the JSS, including how to run calculations for JSS Open, in the Job Support Scheme – Policy Paper.

Detailed guidance on JSS Open and JSS Closed has been published, however, this is likely to be revised given the delay to the introduction of the scheme. We will update you on the position as soon as this is clear.

BDBF is currently advising many employers and employees on the challenges presented by the coronavirus. If you or your business needs advice on the Job Support Scheme or other coronavirus-related matter please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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New Bill gives employees the right to know colleagues’ salaries and expands pay reporting obligations

Employment Law News

New Bill gives employees the right to know colleagues’ salaries and expands pay reporting obligations

A new Bill seeking to increase transparency in the field of equal pay and expand pay reporting obligations to smaller organisations has begun its passage through Parliament. In this briefing we bring you up to date with what is proposed.

What is the Equal Pay Information and Claims Bill 2019 – 2021 about?

The Equal Pay Information and Claims Bill 2019 – 2021 (EPIC Bill) is a Private Members’ Bill launched by the Labour MP Stella Creasy on 20 October 2020. The EPIC Bill seeks to increase transparency in the field of equal pay and expand pay reporting obligations. The main aspects of the EPIC Bill are as follows:

Right to know what colleagues are paid: employees would be given the legal right to know what their colleagues are paid as a means to promoting pay equality. Introducing the EPIC Bill, Stella Creasy MP said “pay discrimination is prevalent because it is hard to get transparency”. The gender equality charity, the Fawcett Society, who helped the draft the EPIC Bill, highlighted research showing that 6 out of 10 working women do not know whether they are being paid less than a male comparator and only 3 out of 10 believed that their employer would tell them the answer if they asked the question.
Expansion of gender pay gap reporting: gender pay gap reporting came into force on 6 April 2017 for organisations with 250 or more employees. Under the current rules, organisations are required to report certain gender pay information annually, including their mean and median gender pay gaps. The EPIC Bill seeks to expand the obligations by reducing the threshold to organisations with 100 or more employees and introducing a new requirement to publish an action plan for closing the gap. The Office of National Statistics has published data showing that the gender pay gap amongst organisations with between 10 and 249 employees is higher than those with 250 or more employees. Accordingly, the expansion of gender pay gap reporting to smaller organisations may well provoke unrest amongst female workers and, in turn, lead to more questions being asked about how their pay compares to specific male colleagues (potentially leading to equal pay claims).
Introduction of ethnicity pay reporting: organisations with 100 or more employees would also be required to publicly report their ethnicity pay gap. Although ethnicity pay reporting has been on the Government’s “to do” list for some time, it has not yet found its way into law. One of the recommendations coming out of the 2017 McGregor-Smith “Race in the Workplace” report was that larger employers (i.e. those with 250 or more employees) should be required to publish ethnicity pay information. In October 2018, Theresa May’s Government opened a consultation on the introduction of mandatory ethnicity pay reporting. However, that consultation closed in January 2019 and no action has yet been taken to introduce relevant legislation.

The EPIC Bill also contains measures aimed at reforming remedies and time limits relating to equal pay, providing a right to equal pay where a single source can rectify the inequality and requiring the statement of employment particulars to include equal pay.

Is the EPIC Bill likely to become law?

Although Private Members’ Bills generally don’t make their way onto the statute books, the EPIC Bill has cross party support and so has some chance of doing so. The Fawcett Society is confident that it will become law given the cross-party and wider public support.

The second reading of the EPIC Bill is due to take place in the House of Commons on 13 November 2020. However, it will need to complete three further stages in the Commons and then repeat the whole process in the House of Lords before coming into law – it remains to be seen whether sufficient Parliamentary time will be made available. We will keep you updated on the progress of the EPIC Bill over the coming months.

Equal Pay Information and Claims Bill 2019 – 2021

If your business needs advice on equal pay or pay reporting obligations please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

New ICO guidance on responding to data subject access requests

Employment Law News

New ICO guidance on responding to data subject access requests

On 21 September 2020 the Information Commissioner’s Office (ICO) published detailed guidance on how organisations should respond to data subject access requests (DSARs). The new guidance supplements the ICO’s “in brief” guidance on DSARs and is intended to provide users with a deeper understanding of how to apply the right of access in practice.

Scope of the new guidance

The guidance is intended for use by Data Protection Officers (DPOs), as well as those with specific data protection responsibilities within larger organisations. The ICO has said it intends to publish a simplified version of the guidance for small businesses, which will highlight the key points.

The guidance runs to 81 pages and takes an in-depth look at the following areas:

The right of access and how to prepare for receiving a DSAR.
Recognising a DSAR.
Issues to consider when responding to a DSAR.
Finding and retrieving the relevant information.
Supplying the information to the requester.
Refusing to comply with a DSAR.
Dealing with DSARs that involve information about other individuals.
Exemptions and special cases.
Health, education and social work data.
Enforcement of the right of access.
Forcing an individual to make a DSAR

A draft version of the guidance was the subject of public consultation in December 2019. Following responses from over 350 organisations, the final version of the guidance has been expanded to provide further clarification on three particularly tricky issues. We discuss these issues further below and look at some other key points of interest for employers.

Stopping the clock for clarification

The normal time limit for responding to a DSAR is one month from the date of receipt. If the DSAR is complex and/or the requester makes multiple requests, the organisation may be allowed an additional two months to respond. Also, in cases where it is genuinely unclear whether the individual is, in fact, making a DSAR at all, the time limit does not begin to run until the individual has confirmed the position.

The ICO received a lot of feedback on the impact of seeking clarification about the scope of a DSAR. Organisations highlighted that where clarification was needed this would frequently mean there wasn’t enough time left to respond within the time limit.

The new guidance explains that where an organisation processes a large amount of information about an individual, it may ask them to specify the information or processing activities that their request relates to before responding to the request in full. Where this is done, the time limit for responding to the DSAR is paused until such clarification is provided – this is known as “stopping the clock”. However, if some information can reasonably be provided without clarification, then this should still be provided within the normal one-month time limit.

The guidance stipulates that organisations should not seek clarification of DSARs on a blanket basis but should only do so where: (i) it is genuinely required in order to respond to a DSAR; and (ii) the organisation processes a large amount of information about the individual. The question of what amounts to a “large amount of information” will depend on the size of the organisation and the resources they have available to deal with the DSAR. For example, a big organisation with significant dedicated resources will be in a different position to a smaller organisation processing the same amount of information, but with fewer resources at their disposal.

Another factor to consider is whether the organisation will be able to locate and retrieve all of the requested information by performing a reasonable search of the information held about the individual. If the organisation holds a large amount of information about the individual but is able to find the requested information relatively easily, then clarification is not genuinely required and is unlikely to be reasonable.

Where clarification of a DSAR is needed, the organisation should:

seek the clarification promptly and without undue delay (and if proof of ID is needed this should be asked for at the same time);
ask the requester to provide additional details about the information they want to receive (e.g. the context in which their information has been processed and the likely dates of the processing);
explain that the clock stops on the date of the clarification request and resumes on the date the individual responds;
specify whether the individual needs to respond by a certain date; and
where possible, respond to the individual in the same format they made the DSAR (e.g. if the DSAR was made by email, the request for clarification should also be by email).

Ultimately, if the individual responds without providing the clarification sought, the organisation must still make a reasonable search for the information requested. In the event that the individual does not respond at all, then the organisation must wait for a reasonable period of time before treating the request as closed – this will usually be one month but may be longer in certain cases.

Manifestly excessive requests

Where a DSAR is “manifestly unfounded” or “manifestly excessive” this may justify the charging of a fee (see below) or even a refusal to respond to the DSAR altogether.

Manifestly unfounded requests were generally well understood to be requests where the individual had improper motives. Namely, where the individual had no intention of exercising their right of access or they had made the request maliciously and with the aim of harassing the organisation and causing disruption.

On the other hand, there was confusion about when a DSAR should be treated as manifestly excessive. To combat this, the new guidance offers a broader definition of “manifestly excessive” and sets out more detailed advice on this issue.

The guidance provides that in order to determine whether a DSAR is manifestly excessive, the organisation must consider whether it is clearly or obviously unreasonable. This involves considering whether the DSAR is proportionate when balanced against the burden and/or costs involved in dealing with it. Here, the following factors will be relevant:

the nature of the requested information;
the context of the request, and the relationship between the organisation and the individual;
whether a refusal to provide the information may cause substantive damage to the individual;
the available resources;
whether the request largely repeats previous requests and a reasonable period hasn’t elapsed; and
whether it overlaps with other requests.

However, when making this assessment, the organisation must also:

consider each DSAR individually and ensure that where a DSAR is treated as excessive this is clearly the case;
not presume that a DSAR is excessive just because the individual has made excessive or unfounded requests in the past or because a large amount of information has been requested (and in such cases the organisation may be able to seek clarification of the request – see above); and
ensure it has strong justifications for treating a DSAR as manifestly excessive and be able to demonstrate these to the individual and the ICO.

Charging a fee

In most cases, organisations should provide the information requested in the SAR without charging a fee. However, organisations are entitled to charge a reasonable fee to cover their administrative costs where the request is manifestly unfounded or excessive or where the requester asks for further copies of their data following a request.

In response to feedback, the ICO has updated its guidance on what organisations can take into account when considering whether to charge a fee. This includes the administrative costs of:

assessing whether or not the organisation is processing the information;
locating, retrieving and extracting the information;
providing a copy of the information; and
communicating the response to the individual, including contacting the individual to inform them that it holds the requested information (even if it is not going to be provided).

If the organisation decides to charge a fee, it must be reasonable and may include the costs of things like photocopying, printing, postage, equipment (e.g. a USB device) and staff time. The costs of staff time should be based on the estimated time it will take staff members to comply with the request, charged at a reasonable hourly rate. At present, organisations can decide the hourly rate for themselves, but they must be able to justify any fee to the ICO if required.

The guidance suggests that organisations establish a set of criteria for charging fees which explains when a fee will be charged, what the standard charges are and how the fee is calculated, These criteria should be made available on request or when the organisation requests a fee from the individual.

Where a fee is charged, the one-month time limit for responding to the DSAR does not begin until the individual has paid the fee. However, the fee should be requested as soon as possible and within one month of receipt of the DSAR. Organisations must not delay fee requests until the end of the one-month time limit nor ask for a fee simply to extend the time limit for response. In the event that the individual does not respond to the fee request, then the organisation must wait for a reasonable period of time before treating the request as closed – this will usually be one month but may be longer in certain cases.

Other key points of interest for employers

Need for good information management systems: the guidance highlights the need for organisations to have adequate information management systems and procedures in place to facilitate dealing with DSARs. Such systems should enable the organisation easily to locate and extract personal data and redact third-party data where necessary. Where a new information management system is introduced, organisations should ensure that it facilitates the effective handling of DSARs. In addition, organisations should ensure that they operate a well-structured file plan with standard naming conventions for electronic documents.

Lack of formal requirements for making a DSAR: the guidance underlines the fact that there are no formal requirements for making a valid DSAR. It does not have to be made in writing and it does not have to include the words “subject access request”. It can be made to any part of an organisation and it does not have to be made to a specific person or in a specific way, for example, a valid request can be made through an organisation’s social media channel. Nor does it have to made by the individual themselves – it is possible for a SAR to be made by a third party. Employers should consider who should be trained to identify a DSAR – this should usually include members of HR and line managers.

The search obligation is limited to what is reasonable and proportionate: helpfully, the guidance clarifies that the search obligation is limited to what is reasonable and proportionate. There was authority for this approach under case law relevant to the old Data Protection Act 1998. However, it is helpful that the ICO has expressly confirmed that the same approach applies to the Data Protection Act 2018.

Dealing with personal data held on personal devices: the guidance states that in most cases the organisation will not have to supply personal data in response to a DSAR where someone else is storing it on their own computer systems rather than those of the organisation (on the basis that the organisation will not be the controller for that data). However, if an employer permits its employees to hold personal data about others on their personal devices (e.g. as part of a “Bring Your Own Device” scheme) then they may be “processing” the data on behalf of employer. Where that is the case then the data held on such personal devices will be within the scope of a DSAR response.

Clear guidelines on how to deal with mixed personal data: the new guidance offers clear guidelines on how organisations should deal with mixed personal data (i.e. where the information relates to the requester and another individual). Although the guidance here is not substantively new, it sets out clear step-by-step guidance on this complex issue which commonly arises for employers dealing with SARs made by employees.

Comment

The new guidance is essential reading for DPOs and others responsible for handling responses to DSARs. It’s helpful for employers in providing greater clarity on when fees can be charged and what counts as a manifestly excessive request. Further, where a request for a large amount of information is received, it may be legitimate to seek clarification from the individual and pause the time limit for responding. However, it is worth remembering that the overall theme of the guidance is the importance of an individual’s right of access – described as the “cornerstone of data protection law”. Therefore, employers need to tread carefully when seeking to derogate from the standard approach and ensure that each request is considered individually.

ICO’s Right of Access Guidance

If your business needs advice on dealing with data subject access requests please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.