Coronavirus job retention, Payroll and Employment law
Discussion
Hi, hope this is the right section to ask in. I appreciate this is a very new subject and I'm unlikely to be able to get solid advice but figured its worth an ask anyway.
I need advice with regards to the coronavirus job retentions scheme. The scheme states that employees are only eligible to be furloughed if they have been on payroll before 28/02/20. It also states that if you started work in Feb 2020, your income will be pro-rata'd to assess what 80% means (therefore implying that those employed in feb are eligible). It also states that employees hired after 28/02/2020 aren't eligible. My partner took on a new role on 21/02/2020, but she didnt have an NI number (EU national / first UK job) and as such wasn't put on payroll before 28/02/20, but she was employed for a week before that date and continues to be employed now. Her work is now wanting to furlough / lay her off as they cannot afford to keep her on but are saying they cannot furlough her and get the 80% as she wasnt on payroll by 28/02 despite being employed. I know its a slim chance but does anyone here A) know anyone who can advise or B) found themselves or someone they know in a similar predicament. She is facing unemployment if we do not manage to find a way to make the scheme applicable for her.
I've used the following two links as sources
https://www.gov.uk/guidance/check-if-you-could-be-... (States here that "If you started work in February 2020, your employer will pro-rata your earnings from that month.")
https://www.gov.uk/guidance/claim-for-wage-costs-t... (States here that "Employees hired after 28 February 2020 cannot be furloughed or claimed for in accordance with this scheme.)
I need advice with regards to the coronavirus job retentions scheme. The scheme states that employees are only eligible to be furloughed if they have been on payroll before 28/02/20. It also states that if you started work in Feb 2020, your income will be pro-rata'd to assess what 80% means (therefore implying that those employed in feb are eligible). It also states that employees hired after 28/02/2020 aren't eligible. My partner took on a new role on 21/02/2020, but she didnt have an NI number (EU national / first UK job) and as such wasn't put on payroll before 28/02/20, but she was employed for a week before that date and continues to be employed now. Her work is now wanting to furlough / lay her off as they cannot afford to keep her on but are saying they cannot furlough her and get the 80% as she wasnt on payroll by 28/02 despite being employed. I know its a slim chance but does anyone here A) know anyone who can advise or B) found themselves or someone they know in a similar predicament. She is facing unemployment if we do not manage to find a way to make the scheme applicable for her.
I've used the following two links as sources
https://www.gov.uk/guidance/check-if-you-could-be-... (States here that "If you started work in February 2020, your employer will pro-rata your earnings from that month.")
https://www.gov.uk/guidance/claim-for-wage-costs-t... (States here that "Employees hired after 28 February 2020 cannot be furloughed or claimed for in accordance with this scheme.)
Edited by Gooly on Friday 27th March 11:43
Breadvan72 said:
JasandJules may be along later, but if he/she doesn't sort this first, I may have a bodge go over the weekend. Today I am actually working (I know right).
See also Sean Jones QC and Jason Braier on Twitter for some useful info.
Great thank you, your advice is always appreciated! I actually stumbled across their threads earlier but no specifics on the difference between employed and being on payroll or the ambiguity left between the two from gov advice. I may tweet them and ask though.See also Sean Jones QC and Jason Braier on Twitter for some useful info.
Many years ago I had a similar situation regarding a foreign national colleague and maternity pay. We managed to successfully argue that her employment started on the first day she was there, not when she went on payroll. The same argument could perhaps be applied and that the company was delayed in adding her to payroll for some administrative reason but she was clearly paid from 21/02 and thus furloughing can apply.
Good luck.
Good luck.
Gooly said:
I've used the following two links as sources
https://www.gov.uk/guidance/check-if-you-could-be-... (States here that "If you started work in February 2020, your employer will pro-rata your earnings from that month.")
https://www.gov.uk/guidance/claim-for-wage-costs-t... (States here that "Employees hired after 28 February 2020 cannot be furloughed or claimed for in accordance with this scheme.)
Both your links state the same thing. The employee has to be on the PAYE payroll on 28/02/2020.https://www.gov.uk/guidance/check-if-you-could-be-... (States here that "If you started work in February 2020, your employer will pro-rata your earnings from that month.")
https://www.gov.uk/guidance/claim-for-wage-costs-t... (States here that "Employees hired after 28 February 2020 cannot be furloughed or claimed for in accordance with this scheme.)
Edited by Gooly on Friday 27th March 11:43
If she wasn't then she does not qualify as an eligible employee for the job protection scheme. This does of course not negate her employment rights such that they are!
KevinCamaroSS said:
Many years ago I had a similar situation regarding a foreign national colleague and maternity pay. We managed to successfully argue that her employment started on the first day she was there, not when she went on payroll. The same argument could perhaps be applied and that the company was delayed in adding her to payroll for some administrative reason but she was clearly paid from 21/02 and thus furloughing can apply.
Good luck.
Thanks for this, that offers a glimmer of hope. The plot thickens as it turns out a fellow new starter started on the same date as her, does the same roll (they work alongside each other) and was put on payroll in Feb and is now getting furloughed. Her manager has implored to her that this issue wasnt because of her NI number or lack of thereof - without that then it seems like sheer incompetence or possible discrimination, as all other things are equal. Seems absurd that one is getting furloughed and one isnt when they work the same hours from the same start date in the same role. She is now facing redundancy with a week's extra pay and thats it.Good luck.
Employment law blah.
https://eachother.org.uk/coronavirus-what-are-my-e...
See also Sean Jones QC's Twitter thread about compulsion to work.
https://eachother.org.uk/coronavirus-what-are-my-e...
See also Sean Jones QC's Twitter thread about compulsion to work.
To update, I managed to get through to some useful people at HMRC after spending a huge amount of time ringing round and getting hugely conflicting information (started with CAB who told me to try ACAS, who told me to try HMRC Statutory Pay Dispute team, who said they couldn't help - then did more gov.uk reading and found a HMRC Covid helpline who were helpful and also rang the HMRC employer's helpline who were very helpful).
Essentially, HMRC's position is that paycheque or no paycheque, as long as her start date is accurately recorded on payroll she should be fine. This is helpful and her employer is being slightly more co-operative and positive now, whereas they were quite dismissive about the potential for a positive outcome initially. We are waiting till tomorrow to hear back but hopefully this should be resolved soon. I will update the thread accordingly in case anyone else finds themselves in a similar position!
Edit: HMRC also noted that not having an NI number is not a valid reason for withholding pay and that they absolutely should have put her on payroll immediately and simply processed her pay without the NI number.
Essentially, HMRC's position is that paycheque or no paycheque, as long as her start date is accurately recorded on payroll she should be fine. This is helpful and her employer is being slightly more co-operative and positive now, whereas they were quite dismissive about the potential for a positive outcome initially. We are waiting till tomorrow to hear back but hopefully this should be resolved soon. I will update the thread accordingly in case anyone else finds themselves in a similar position!
Edit: HMRC also noted that not having an NI number is not a valid reason for withholding pay and that they absolutely should have put her on payroll immediately and simply processed her pay without the NI number.
Apologies I missed this thread (not sure why it is not in the Employment Section).
I see you have a HMRC view now, my view is that as long as she (the company) can prove she was an employee at the material time it should be ok, we are expecting some flexibility in this matter and people are able to adjust payroll etc (for example some people may be terminated but re-engaged and put on Furlough).
You can see why a line in the sand was drawn so as to prevent companies suddenly "employing" sons, daughters, mothers etc and claiming their Furlough pay...
I see you have a HMRC view now, my view is that as long as she (the company) can prove she was an employee at the material time it should be ok, we are expecting some flexibility in this matter and people are able to adjust payroll etc (for example some people may be terminated but re-engaged and put on Furlough).
You can see why a line in the sand was drawn so as to prevent companies suddenly "employing" sons, daughters, mothers etc and claiming their Furlough pay...
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