March 30, 2020

Call for Government to urgently clarify Job Retention Scheme eligibility requirements for health and social care providers

Given the significant operational challenges faced by the sector due to the coronavirus pandemic, law firm Royds Withy King is calling for urgent clarification that health and social care providers will be able to benefit from the Scheme.

Government guidance states that: "Where employers receive public funding for staff costs, and that funding is continuing, we expect employers to use that money to continue to pay staff in the usual fashion – and correspondingly not furlough them. This also applies to non-public sector employers who receive public funding for staff costs."

James Sage, head of the Health & Social Care team and a specialist employment lawyer at Royds Withy King said: "This appears to contradict earlier guidance that all businesses and charities could participate in the Scheme.

"The Government's position appears to be that providers who rely on purely private funding can use the Scheme and those who are solely reliant on public funding cannot. It is unclear what the position would be for the many providers who have a mix of private and public funding."

Government guidance adds: "In a small number of cases, for example where organisations are not primarily funded by the Government and whose staff cannot be redeployed to assist with the coronavirus response, the scheme may be appropriate for some staff."

James adds: "This appears to require providers to make efforts to redeploy staff in the sector before being able to utilise the Scheme, but no further detail of the requirements has been provided.

"We cannot see any reasonable justification for the disparity of treatment between privately and publicly funded providers. All organisations are facing unprecedented challenges and need flexibility and financial support to meet the changing requirements of their workforce."

Royds Withy King highlights examples of how the coronavirus pandemic is changing the way the social care sector works:

  • A care provider implementing full lockdown of a care home with a number of staff volunteering to live-in to support residents. This created a reduced requirement for other staff who could be furloughed.
  • A care provider with reduced occupancy due to Covid19 seeking to furlough care staff and office staff until occupancy and revenue increased.

James adds: "We urge the Government to update its guidance to confirm that health and social care providers who receive public funding will not be excluded from the Scheme."

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