Job Support Scheme (#JSS) and #Tiered #Restrictions
Blogs
Job Support Scheme (#JSS) and #Tiered #Restrictions
Published: 26/10/2020
Written by Curwens Solicitors
What is the Coronavirus Job Support Scheme?
Additional support to help employers retain their employees when the Coronavirus Job Retention Scheme (“CJRS”) comes to an end. This was first announced by the Chancellor of the Exchequer on 24 September 2020 and will provide different types of support to businesses according to their situation.
Businesses that are operating but facing decreased demand can get support for wages through JSS Open.
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 can get the support they need through JSS Closed.
Extension of support measures announced
The reason for the additional support measures is that many employers have been able to operate safely but face reduced demand so need extra support to help retain their employees. JSS Open, will give employers the option of keeping their employees in a job on shorter hours rather than making them redundant.
The Government has announced that it will increase the scale of support available to employers through JSS Open in order to protect more jobs.
An employee will need to work a minimum of 20% of their usual hours and the employer will continue to pay them as normal for the hours worked. Alongside this, the employee will receive 66.67% of their normal pay for the hours not worked - this will be made up of contributions from the employer and from the government.
The employer will pay 5% of reference salary for the hours not worked, up to a maximum of £125 per month, with the discretion to pay more than this if they wish. The government will pay the remainder of 61.67%, of reference salary for the hours not worked, up to a maximum of £1,541.75 per month.
What does this mean in a nutshell? Employees will continue to receive at least 73% of their normal wages, where they earn £3,125 a month or less.
For Employers who have been 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 the Job Support Scheme, through JSS Closed, will help them through the period that they are directly affected by these restrictions by supporting the wage costs of employees who have been instructed to cease work in eligible (closed) premises.
Each employee who cannot work due to these restrictions will receive two thirds of their normal pay, paid by their employer and fully funded by the government, to a maximum of £2,083.33 per month, although. The employer has discretion to pay more than this if they wish . This will help protect employee incomes, limit unemployment and retain employer-employee matches so that these premises are able to reopen as quickly as possible when circumstances allow.
For clarification, employees may also be entitled to additional financial support, including Universal Credit.
The Job Support Scheme will be open from 1 November 2020 and run for 6 months, until 30 April 2021. Employers will be able to claim in arrears from 8 December 2020, with payments made after the claim has been approved.
Does the employer or employee have to have benefited from the CJRS previously?
Neither the employer nor the employee needs to have benefitted from the CJRS.
Employers can claim the JSS Open and JSS Closed grant at the same time for different employees.
Employers cannot claim for a single employee under both schemes at the same time.
they have a UK, Channel Island or Isle of Man bank account
Additional eligibility criteria will apply depending on whether the employer is claiming a JSS Open grant or JSS Closed grant.
Organisations can use the scheme if they are not fully funded by public grants.
Employees who were on the PAYE payroll between 6 April 2019 and 11:59pm on 23 September 2020. This means an RTI Full Payment Submission notifying payment in respect of that employee must have been made to HMRC at some point from 6 April 2019 up to 11:59pm 23 September 2020.
Employers can only claim for employees that were in their employment on 23 September 2020. If employees ceased employment after 23 of September 2020 and were subsequently rehired, then employers can claim for them.
An individual is an employee for the purposes of this scheme if they are treated as an employee for Income Tax purposes.
Employees can be on any type of contract, including zero hours or temporary contracts.
Agency workers are regarded as employees of an employment agency for the purposes of this scheme, provided they are employees for Income Tax purposes.
Employees do not need to have been furloughed under the Coronavirus Job Retention Scheme to be eligible for the Job Support Scheme.
Employers will be able to top up employee wages above the level of minimum contributions at their own expense if they wish.
Employers cannot claim both JSS Open and JSS Closed in respect of a single employee for the same day.
Employees will be able to undertake training voluntarily in non-working hours. Where time spent on training attracts a minimum wage entitlement in excess of the grant payment, employers will need to pay the additional wages.
Employers facing decreased demand can claim JSS Open if:
have 250 or more employees on 23 September 2020 and has undertaken a Financial Impact Test (see section 3.2 for more information) demonstrating their turnover has remained equal or fallen to show they have been adversely affected due to coronavirus; a
n employer with less than 250 employees on 23 September 2020 is not required to satisfy the test
some, or all, of their employees are working reduced hours - employees must still be working for at least 20% of their usual hours
Eligible employers will be able to claim the JSS Open grant for employees who are working at least 20% of their usual hours.
Employees can do training in working hours while being claimed for under the Job Support Scheme. Hours that employees spend training are paid for by the employer at their full rate of pay and will count towards 20% of their usual hours.
Employees are entitled to the National Living Wage, National Minimum Wage or Apprentices Minimum Wage for the hours they are working or treated as working (such as training undertaken at the request of the employer in non-working hours) under minimum wage rules. For JSS Open, at least minimum wage rates must be paid for all hours worked or treated as worked.
To be eligible for the grant, employers must have reached written agreement with their employee (or reached written collective agreement with a trade union where the relevant terms are determined by collective agreement) that they have been offered a temporary working agreement.
The agreement must be available for view by HMRC on request. This temporary working agreement must cover at least seven consecutive days.
Employers should discuss with their staff and make any changes to their employment contract by written agreement. When employers are making decisions, including deciding to whom they should offer reduced hours, equality and discrimination laws will apply in the usual way.
Employers must maintain records relating to the terms of the temporary working agreements for each employee, and:
make sure that the agreement is consistent with employment, equality and discrimination laws
keep a written record of the agreement for 5 years
keep records of how many hours employees work and the number of usual hours they are not working
this agreement must be made available to HMRC on request
HMRC will publish further guidance on what to include in the written agreement by the end of October.
Employers are eligible to claim JSS Closed if their business premises at one or more locations has been legally required to close as a direct result of coronavirus restrictions set by one or more of the four governments of the UK. It includes premises restricted to delivery or collection only services from their premises and those restricted to provision of food and/ or drink outdoors.
Employers are only eligible to claim for periods during which the relevant coronavirus restrictions are in place. Employers will not be able to claim JSS Closed to cover periods after restrictions have lifted and the business premises is legally allowed to reopen. They may then be able to claim JSS Open if they are eligible.
whose primary work place is at the premises that have been legally required to close as a direct result of coronavirus restrictions set by one or more of the four governments of the UK
that the employer has instructed to and who cease work for a minimum period of at least 7 consecutive calendar days
This is not a complete list of employee eligibility requirements for JSS Closed and further guidance will be published by the end of October.
Employers should discuss with their staff and make any changes to their employment contract by written agreement. When employers are making decisions in relation to the process, including deciding who they should instruct to cease work, equality and discrimination laws will apply in the usual way.
To be eligible for the grant, employers must have reached written agreement with their employee (or reached written collective agreement with a trade union where the relevant terms are determined by collective agreement) that they have been instructed to and agree to stop working for a minimum of 7 consecutive calendar days. The agreement must be available for view by HMRC on request.
Employers must maintain records relating to the terms of these arrangements for each employee. They must:
notify the employee of the agreement in writing
make sure that the agreement is consistent with employment, equality and discrimination laws
keep a written record of the agreement for 5 years
this agreement must be made available to HMRC on request
The employee must agree to the new arrangement.
Employers cannot claim for an employee who has been made redundant or is serving a contractual or statutory notice period during the claim period.
The Job Support Scheme grant will not cover National Insurance contributions (NICs) or pension contributions. These contributions remain payable by the employer.
Under JSS Open, employers can claim for government support for their employees’ wages (including employees on National Minimum Wage) - up to a maximum of £1,541.75 per month, depending on how many hours they work.
Claims should commence from the later of the date that the employee starts working reduced hours or the date when working reduced hours is confirmed in writing, not when the decision is made. Claim periods can start from 1 November 2020 onwards. Claims are subject to a maximum reference salary of £3,125 per calendar month.
The amount an employer should use for calculating an employees’ reference salary is made up of the regular payments they are obliged to make, including:
regular wages
non-discretionary payments for hours worked, including overtime
non-discretionary fees
non-discretionary commission payments
piece rate payments
payments made at the discretion of the employer or a client, where the employer or client was under no contractual obligation to pay, including:
any tips, including those distributed through troncs
discretionary bonuses
discretionary commission payments
non-cash payments
non-monetary benefits like benefits in kind (such as a company car) and salary sacrifice schemes (including pension contributions) that reduce an employees’ taxable pay
For employees who are paid a fixed salary, the Reference Salary is the greater of:
the wages payable to the employee in the last pay period ending on or before 23 September 2020
the wages payable to the employee in the last pay period ending on or before 19 March 2020, this may be the same salary calculated under the CJRS scheme
For employees whose pay is variable the Reference Salary is the greater of:
the wages earned in the same calendar period in the tax year 2019 to 2020
the average wages payable in the tax year 2019 to 2020
the average wages payable from 1 February 2020 (or the employee’s start date if later) until 23 September 2020
There are different calculations for working out an employee’s usual hours - fixed or variable.
For employees contracted for a fixed number of hours and whose pay does not vary according to the number of hours they work, usual hours are calculated based upon the greater of:
the hours that the employee was contracted for at the end of the last full pay period ending on or before 23 September 2020
the hours that the employee was contracted for at the end of the last full pay period ending on or before 19 March 2020, this may be the same number of hours calculated under the Coronavirus Job Retention scheme (NB. if employees moved to part time working, this may be varied)
This should include hours paid as annual leave and statutory leave.
The variable hours calculation applies if either:
the employee is not contracted to a fixed number of hours
the employee’s pay depends on the number of hours they work
For employees whose number of hours varies and/or whose pay depends on the number of hours they work, the number of usual hours is calculated based on the higher of:
the number of hours worked in the same calendar period in the tax year 2019 to 2020
the average number of hours worked in the tax year 2019 to 2020
the average number of hours worked from 1 February 2020 (or the employee’s start date if later) until 23 September 2020
This should include hours paid as annual leave and statutory leave.
The calculation of usual hours is not and cannot be altered if the employee is expecting to work more or fewer hours than this in the future.
For employees who are part of a flexible work time arrangement, employers should:
not count as hours worked any hours that the employee worked but was not paid for because they accrued paid time off which they could take later
count as hours worked any hours that the employee took as paid time off (‘flexi-leave’), which they had accrued by working additional hours at some other time
For employees who are paid per task or per piece of work done whose hours cannot be calculated in this way, hours can be estimated based on the number of ‘pieces’ produced and the average rate of work per hour, as per National Minimum Wage rules.
Information correct at the time of publication, for up to date guidance please visit www.gov.uk ‘Coronavirus’. This article does not constitute legal advice and should not be used as such.
For advice in relation to the JSS, drafting JSS agreements for ‘Open’ or ‘Closed’ please feel free to contact a member of our Employment Team on 020 8363 4444.
Please note that our briefings are for informational purposes only, and do not constitute legal advice.
testimonials
Bradley of Curwens is the most highly efficient, sharp and highly skilled conveyancer I have ever used. My sale went through quickly and effortlessly with no stress at all. Conveyancing at its best. Hurrah and Thank you.
Katie from North London
Kaajal at Curwens was terrific - really friendly and unintimidating, patient in explaining the legal-speak of the severance agreement I was being asked to sign, while also being extremely efficient in processing it all! I would unreservedly recommend Kaajal and Curwens to anybody looking for friendly and painless help with any potentially daunting legal process.
Mike from Palmers Green
We had a very good experience on our house sale with Maryam and Christina. They were knowledgeable, courteous and understanding throughout. I would definitely recommend them and have no hesitation using Curwens again for any legal representation!!
The Thompsons from Finchley
I would highly recommend Curwens. They handled the probate on my late father’s estate in a highly professional manner and explained the whole process clearly. The staff are friendly and kind and dealt with any issues I had promptly. Thank you. Much appreciated.
John from Harlow
I would like to thank the Employment team, and especially Kaajal for assisting me during my redundancy. She remained calm, when I was upset and shocked. The whole process was dealt with within one week, meaning I could go on to find further employment.
Pritti from Surrey
Our purchase was sabotaged by XXXXXXXXXX, and our mortgage offer had expired. Luckily, our lender gave us a one week extension of the mortgage offer. Curwens took over, and magic happened. We completed the purchase on time. Best Service ever!
William from London
I would like to thank you Amanda for all your support during this process. I felt very pleased you were my solicitor, you gave me confidence and reassurance, I felt in very safe hands.
Anonymous
You have helped us on a fair few issues now. On every occasion you have made us feel like we were your only client at the time… we couldn’t have got through our HR situations without your guidance.
HR Director, Milbridge Group PLC
I just wanted to say thank you for all of your help with getting our office lease done. Bradley, Sandra and Sarah were so responsive and it was a pleasure working with you.
Bradley of Curwens is the most highly efficient, sharp and highly skilled conveyancer I have ever used. My sale went through quickly and effortlessly with no stress at all. Conveyancing at its best. Hurrah and Thank you.
Katie from North London
Kaajal at Curwens was terrific - really friendly and unintimidating, patient in explaining the legal-speak of the severance agreement I was being asked to sign, while also being extremely efficient in processing it all! I would unreservedly recommend Kaajal and Curwens to anybody looking for friendly and painless help with any potentially daunting legal process.
Mike from Palmers Green
We had a very good experience on our house sale with Maryam and Christina. They were knowledgeable, courteous and understanding throughout. I would definitely recommend them and have no hesitation using Curwens again for any legal representation!!
The Thompsons from Finchley
I would highly recommend Curwens. They handled the probate on my late father’s estate in a highly professional manner and explained the whole process clearly. The staff are friendly and kind and dealt with any issues I had promptly. Thank you. Much appreciated.
John from Harlow
I would like to thank the Employment team, and especially Kaajal for assisting me during my redundancy. She remained calm, when I was upset and shocked. The whole process was dealt with within one week, meaning I could go on to find further employment.
Pritti from Surrey
Our purchase was sabotaged by XXXXXXXXXX, and our mortgage offer had expired. Luckily, our lender gave us a one week extension of the mortgage offer. Curwens took over, and magic happened. We completed the purchase on time. Best Service ever!
William from London
I would like to thank you Amanda for all your support during this process. I felt very pleased you were my solicitor, you gave me confidence and reassurance, I felt in very safe hands.
Anonymous
You have helped us on a fair few issues now. On every occasion you have made us feel like we were your only client at the time… we couldn’t have got through our HR situations without your guidance.
HR Director, Milbridge Group PLC
I just wanted to say thank you for all of your help with getting our office lease done. Bradley, Sandra and Sarah were so responsive and it was a pleasure working with you.
