Is there anything I can do to try and settle my claim?
There are several options that can be used at this time to try and settle disputes. If it is not possible to settle a dispute via direct discussions between the parties then some form of Alternative Dispute Resolution (“ADR”) might be appropriate. Mediation is the most popular form of ADR. Most people’s perception of mediation is that it needs to be in person but that does not have to be the case.
Mediation can take place online or on the telephone. Most, if not all, ADR providers remain open for business and are quickly changing their business model to ensure that mediations can still take place. Mediation can be arranged at reasonably short notice and certainly so far as the online model is concerned, it mirrors the process that is adopted when parties appear in person. Online mediation allows for joint sessions with the mediator to take place and also for the parties to break out into their respective rooms for private discussions. If a dispute settles at mediation – and the vast majority do – then the agreement reached between the parties is binding and can be enforced.
A group of senior former judges and legal academics have now called for an acceleration in the use of ADR in light of the current circumstances. They have stated that courts should promote “and where appropriate require” the use of ADR. Mediation has particularly seen an increase in growth at this time.
ADR normally results in a quicker outcome than if the matter proceeds in the courts. Due to its conciliatory nature it is a very useful process where parties continue to be in a trading relationship. Contracting parties should also consider building ADR into dispute resolution clauses in their contracts so that in the event there is a dispute the focus is on resolving the dispute as soon as possible before it escalates into litigation.”
Related FAQs
This will depend on the particular facts and the employee’s circumstances but an employee should co-operate with the employer so far as is necessary to enable compliance with any statutory duty or requirement relating to health and safety.
In addition, conduct outside of work can result in an employee’s dismissal if the conduct pertains to the employment relationship. If an employee breaches their lockdown rules and it affects their ability to work, such as it being no longer safe for them to attend work, or the reputation of the employer, these may be grounds for disciplinary action and subsequent dismissal.
You can rotate staff on furlough or flexible furlough.
One option is to make it clear in the letter agreeing to being furloughed that there is an open ended right to rotate and to be able to take them off furlough and bring them back and put them back on.
So the employer reserves the ability to rotate by building into the agreement, but only exercises it if it is permissible.
Rotation is quite key for employers who need to make a temporary reduction to their overheads but want to retain the skills base to call back when work picks up. Having furloughed staff return on a part-time basis may reduce the need to rotate.
It also helps in the employer being able to show that they are treating the workforce as fairly as possible and everyone is taking a reduction. Get in touch if you need help preparing the documentation for furlough that will permit rotation or flexible furlough.
Read more about flexible furlough and how this can be used as part of the CJRS.
You should have in place a dispute resolution procedure that sets out the appeal process or contractors or the agency as appropriate. You must respond to an appeal within 45 days.
If the status determination is disputed you should consider the contractor or agency’s reasons objections. You must consider if the original determination is to be maintained and give reasons for this. Or a new determination with reasons can be provided if appropriate.
Records of disputed determinations and the outcome of any appeal should be kept.
For those with variable pay, if the employee has been employed for a full 12 months before the period claimed for you, can take the higher of:
- The same month’s earnings in the previous year; or
- Average monthly earnings from the 2019/20 tax year.
For those who have been employed for less than one year you can use the average of their monthly earnings since they began their employment until the date they were furloughed.
If they have been employed for less than a month, work out a pro rata for their earnings so far, and claim for 80%.
A new employer may claim under the scheme in respect of the employees of a previous business transferred after 10 June 2020 as long as:
- the TUPE or PAYE business succession rules apply to the change in ownership
- the employees being claimed have previously had a claim submitted for them by their prior employer in relation to a furlough period of at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June
In these circumstances, the maximum number of employees that the new employer can claim for will be the total of both:
- the maximum number of employees the new employer claimed for in any one claim ending on or before 30 June
- the number of employees that are being transferred to the new employer which have had a claim submitted for them in relation to a furlough period of at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June. This is subject the maximum cap the previous employer was subject to.
A new employer is also eligible to claim under scheme in respect of the employees associated with a transfer of a business after 10 June 2020 from the liquidator of a company in compulsory liquidation where:
- TUPE would have applied were it not for the company being in compulsory liquidation
- the employees being claimed for have been furloughed and a had a claim submitted for them by their prior employer in relation to a period of at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June
In these circumstances, the maximum number of employees that the new employer can claim for will be the total of both:
- the maximum number of employees the new employer claimed for in any one claim ending on or before 30 June and
- the number of employees that are being transferred to the new employer which have had a claim submitted for them by their prior employer in relation to a furlough period of at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June. This is subject to the maximum cap the previous employer was subject to.