Employment Wage Subsidy Scheme - Q&A

Posted in : Webinar Recordings on 11 September 2020
Bláthnaid Evans
Ogier Leman
Issues covered: Employment Wage Subsidy Scheme (EWSS)

The Temporary Wage Subsidy Scheme (TWSS) expired on the 31st August and has been replaced by the Employment Wage Subsidy Scheme (EWSS) which will continue until 31 March 2021. 

During this webinar recording, Bláthnaid Evans, Head of Employment & Corporate Immigration at Leman Solicitors and Scott Alexander, Head of Learning and Development at Legal Island discuss the implications of the new scheme for employers and employees and answer your questions.

The Recording


Scott: Good morning, everybody. My name is Scott Alexander. I'm from Legal-Island. Welcome to this webinar on Employment Wage Subsidy Scheme, a kind of question-and-answer session that we're going to have with Bláthnaid Evans, as you can see, Partner and Head of Employment Practice at Leman Solicitors. She's also the Women in Business award winner for Transformative Employee. I think that's Dublin region and she's going to the national awards later on soon.

So, Bláthnaid, you'll know if you listened to her last webinar with Leman Solicitors, dealt with Temporary Wage Subsidy Scheme. Well, that's been changed and we're now going to be looking at the Employment Subsidy Scheme.

Bláthnaid is also going to be speaking at the Annual Review of Employment Law. You can see that in front of you. It's running for two days this year. We have over 30 speakers over the two days and we're recording every session. So, if you've been in the past, you'll know that the biggest complaint we always get is that people say, "I wanted to go to both sessions and I could only attend one". Well, this time, you can attend one and you can watch the other one afterwards because we're recording them and you can watch them at your leisure. The Early Bird discount ends next Friday, so if you want to book online, have a look at all this stuff.

Bláthnaid, what is it you're covering at the Annual Review? Can you remember?

Bláthnaid: Of course, Scott. I'm going to be talking about remote working and the new norm, and sort of the HR and legal issues that come with all of that, including some data protection issues as well.

Scott: Okay. Very good. And we will have actually one of the deputy commissioners from the Data Protection Commission talking about various data protection updates. So we have a number of fine speakers. You'll see the list if you go online and have a look at that on our legal-island.ie/events website.

Now, we're recording this webinar. If you haven't listened before, we're recording the webinar. We're looking at those types of questions that you can see before you. But if you have your questions, on your right-hand side of your screen, you'll see a little question box. So, if you tick into that one there, you can send those questions, and we'll be taking your questions once we've dealt those ones in front of you.

Now, this webinar is not going to last very long if you don't have any questions, so I hope you do. And we can widen that out to the more general lockdown issues and what's happening here at the moment with COVID-19 and all the problems that are arising there.

We're officially in recession. That's two quarters of negative growth, but there are going to be some green shoots. I saw an article yesterday saying that the UK's economy had grown by 6.6% in July as they started opening up a little bit across the water. So maybe that type of thing will come out in the official figures shortly, that there's been a bit of a pickup. The downside is, of course, that you never know when things are going to go back to the way they were.

And I got a note from our marketing people, Bláthnaid, you'll be glad to know that we've had 7,000 people on our webinars this year alone with another 7,000 who have listened back.

Bláthnaid: Wow.

Employment Wage Subsidy Scheme – General Information

Scott: So, if you're listening, you can go on to the website and listen back if you're a subscriber.

So we've got Bláthnaid Evans with us. Bláthnaid, we're going to talk about the Employment Wage Subsidy Scheme, which has replaced the Temporary Wage Subsidy Scheme.

So tell us about the Employment Wage Subsidy Scheme and the key benefits.

Bláthnaid: Thanks, everyone, and thanks, Scott, for having me this morning. Yeah. So this new scheme is, you've probably all seen from the publicity that's out there, it came into force in the 1st of September. I suppose the key difference between this and the Temporary Wage Subsidy Scheme is that this is more seen as a support rather than an income replacement, and that's sort of the backbone of all of this, really.

So, obviously, the main benefit then comes from that is that the government is continuing to provide support to employers by providing this new support. I suppose another key benefit of this new scheme is that they sort of opened up the range of workers that are covered.

So, if you remember from the old scheme, they had to be in employment and on payroll as of the 29th of February, so this automatically excluded any new hires. I know there were a lot of queries we would've got that were like, "What about somebody we employed on the 7th of March just before everything kicked off?" And they just could not be included under the scheme. There was no way around that.

And then it also includes seasonal workers. So, for those people that are seasonal works and new hires, the new scheme, the Employment Wage Subsidy Scheme, is backdated to the 1st of July for those particular people.

And another key benefit and something that's been well welcomed is the clarification around the application of tax. So, as you probably all remember with the temporary scheme, and I'm just paraphrasing this because it's quicker to say, there was a lot of confusion between the gross and the net and tax credits for employees, but everything is based on the gross payments. Taxes to be paid as normal. What they have decided to do is that they've reduced the PRSI down to 0.5%, so that is welcomed with the new scheme then as well.

Scott: Okay. So there are a number of clarifications there. We are getting questions in, but I'm told . . . you can hear me, Bláthnaid, but I'm told by somebody that the sound of the person introducing was completely distorted, so that's me. I'm Scott Alexander from Legal-Island. I'm sorry about that. I don't know what happened there. I have switched off all my other electronic devices and such like to try and make sure that the Wi-Fi . . . I'm in deepest, darkest County Armagh . . . is working. But clearly, it's working in Dublin where you are, Bláthnaid. So, hopefully, that's rectified.

If you are having difficulties, hopefully you can hear me enough to know that the recording picks up the sound perfectly well. So, if you have had any difficulties, please just listen back to the recording, but hopefully it's sorted itself out. It's one of the vagaries of the internet and bandwidth that we have here.

So moving on from that there that's clarified, one of the questions was "How is the tax being calculated under the Temporary Wage Subsidy Scheme as opposed to the Employment Wage Subsidy Scheme?" So we will come back to that. But:

What are the key differences that maybe you haven't covered between the temporary scheme and this new Employment Wage Scheme?

Bláthnaid: Yeah, sure. I mean, the first one is the amount the supplement, or the support we should call it, that's being paid. Now, as you remember, on the old scheme, the max subsidy that an employer could receive was €410, so that is reduced significantly now to €203 per week. And again, the bracket of an employee's wages that come within this is significantly reduced. So only employees that are eligible under the scheme are those that earn between €151.50 per week and €1,462 per week. And this is gross figures. It's not net. Gross.

If an employee is earning €1,463, they're not eligible under the scheme, and equally, if they earn, say, €150 per week, they cannot claim under the scheme. And the two payments that an employer can claim if the employee earned between €151.50 and €202.99, the supplement that they get is €151.50 from the state, and if they earned between €203 and €1,462, then the subsidy is €203 per week.

The other difference is the loss of turnover. So, as you remember probably under the old scheme, they had to show that there was a forecast loss of turnover of at least 25%, and this has increased slightly to 30%.

And then the third other main difference is the requirement for a tax clearance certificate. This wasn't the requirement before, but now Revenue is insisting that that's in place. They want to make sure the applicant's, i.e. the employer's, tax affairs are in order. They must produce this as part of the application, and if they don't have this, it can be done online through your Roth account. I understand this could be done in real time and then subsequently uploaded.

Scott: Okay. So those figures and the details, they'll be on the Revenue website there.

Bláthnaid: Yeah.

Scott: And certainly, your tax claim certificate, your accountant of the listeners here today, their accountants will be able to put those things in for them presumably and they can do it online. You can do it through some kind of proxy if you like. You rely to other people to put on. Is that correct? Did I get that right?

Bláthnaid: Yeah. It's done online through Revenue. So, as far as I understand, it's obviously linked into Roth, so that's the employer's individual account. So, with the tax clearance, that can sort of be easily linked in, because obviously it's the same organisation that it's all been done through.

Scott: Okay. So that's the Revenue online system, that people would register for this type of thing that's coming through. So these things have changed, but one of the things we were chatting about before we broadcast was this 30% and trying to gauge it, because, of course, things are a bit up and down at the minute.

I suppose, depending on your business, that it's easy to show that there's going to be a 30% expected reduction compared to the comparative period. But at the same time, that could go up and it could go down, depending on whether there's a local lockdown. You can imagine, if there's a Dublin lockdown, how that position immediately changes for some people.

Bláthnaid: Yeah, absolutely. So, as you said, you have to show that there's a 30% reduction in turnover and it's because of COVID. Now, with this scheme, there's no cut-off point as to when you must join by and it is done as a sort of .. . We'll get into this in probably a bit more detail later, but there's a checks and balances system in place. For employers to be eligible, you have to check each month and confirm that you continue to be compliant.

So if, for example, there was a local lockdown in Dublin, I have no doubt that would inevitably affect a number of businesses, even for those that are not based in Dublin. What they would have to show, so long as they satisfy all the other criteria, they would have to be able as part of a self-assessment, because that is still the way it's done, that it is estimated that your turnover between the date that you joined and the 31st of December would be down by 30% and that is due to COVID.

So, as you say, for some businesses, that is inevitably a lot easier if the business is completely shut down. But for those that perhaps, for example, are based in Cork, let's say, but they require travel up to Dublin, that will be harder. So you will have to back that up to show it will inevitably affect orders, affect sales.

Obviously, the huge issue here is your staff's health and safety, and you can't push them to go into a county or a town or whatever it might be that has been told that they've gone into lockdown or that there are more restrictions in place due to the number of COVID cases that exist.

Scott: We'll come back to those, I'm sure. The questions are piling in. They're all anonymous, by the way, everyone, if you're listening. You can send a question in the question box there and I'll read them out, but we won't be reading out any names of any organisations or individuals.

So I think you've maybe covered how . . . and you see the question there . . . how the employers qualify. Well, what about the employee?

How does it work with an employee under the temporary scheme? What do they get paid, and is it just payment as normal? And does every employee qualify other than those that are earning outside the limits?

Bláthnaid: Firstly, obviously, the employee has to be earning between those limits, so that's €151.50, and €1,462 gross per week. And the scheme is open from the 1st of September currently to the 31st of March.

Now, it's done differently to the Temporary Scheme in that the way it used to work with the Temporary Scheme was that Revenue were paying the money on a weekly basis and that was to supplement the wages that was ultimately going to the employee. This is different as it's a support rather than a supplement. So the employer must continue to pay the employee as normal whatever it is that they are paying. If they've operated pay cuts, Revenue are sort of staying out of that. It's whatever they do. And then the employer will ultimately get the payment from Revenue. I understand that it's not the same immediate payment. It's taking about six weeks before the employer gets that payment.

So, bearing all of that in mind, there are not as many restrictions as would've been in place for employees to be qualified, only that they have to be within the bracket. As I said, it does also include seasonal workers and new hires.

What it doesn't include is connected parties. So connected parties can be family members. For example, if your sister or an aunt or an uncle. Also, it doesn't include someone that if . . . between the connected parties, a group of them would control at least 50% of the business. And it also doesn't include employees or employees otherwise in this part of the business, i.e., such as child-minders, housekeepers, gardeners, etc.

Proprietary directors are excluded, although there are exceptions to that because they do recognise that that might be necessary in the more SME sector. And a proprietary director can be potentially included as part of the scheme so long as the employer satisfies all the employer requirements and that they are on payroll of the organisation and that they have received the wage at some point between the 1st of July 2019 and the 30th of June 2020.

Scott: That's quite a list of... I'd advise you to listen back to that one. But there are quite a number of people who would listen to these webinars who would be small company directors and they would either be on the payroll and they may get some kind of dividend that would be the bulk of their income, but at the same time, there'd be quite a few that would take a wage.

Bláthnaid: Absolutely, yeah, and they tend to take quite a small wage, so it is likely that they would come within that bracket.

Scott: Okay. The subsidy is paid just into the employer's bank account, I presume.

Bláthnaid: Yeah, exactly. It's paid by Revenue into the employer's bank account, and then that's used as a support. They'll have got the payment more than likely after the employee's wages have been paid.

Scott: Right. And the final question we have here before we move to the listener questions is

How does an employer remain compliant?

That must be one of the biggest fears, that the Revenue come after you saying, "You've been in breach of the rules", or, "You've fraudulently claimed", or, "You shouldn't have been claiming". Now, maybe they're not going to be too harsh on people because it must be very difficult to know accurately what your figures are going to be. "Hey, I'm going to have a 30% drop on my revenue." And then sometimes it's up or sometimes it's down.

There was a scheme in the UK where it was called Eat Out to Help Out, and the government put into place a kind of "you get 50% off up to 10 per person per meal at the beginning of the week" and there were something like 65 million meals were sold.

So some of the things that the government might come up with over the next few months, over the winter months, might be quite imaginative, and it must be easy to get it wrong. So how does an employer remain compliant? Is it through the usual stuff like keeping all your records and trying to justify things as you go along?

Bláthnaid: Yeah. So, firstly, I suppose it's key that you keep all records. Where necessary, I would recommend that you work with your accountant and whatnot to just . . . it's inevitably going to involve projections and then you're also looking at actual results.

Now, helpfully, the Revenue has provided a table on this in terms of guidance of how you work out your projections. So I won't go through it because I'll lose the listeners, but just take, for example, if you were signing up for the 1st of September, your review would've been undertaken on the 31st of August, or up until that date anyway. You look at your actual results, so you look at what your turnover was or your customer orders were for July and August 2020, and then you look at your projections from September to December and then you compare that with July to December 2019.

So they have provided that sort of guidance, and what they are requiring is that there is a monthly review done by participants of this scheme. So you must undertake, by the end of each month, to have gone back, look at your figures, look at your projections, "Okay, am I still in the same place? I'm not in the same place." And if your turnover is down by 29%, by whatever calculations you might be doing, for example, then you must pull out of the scheme, and you must pull out of the scheme either on the date that you realise or when you produce a check. So, if something dramatic was to happen in the middle of that month, arguably you should pull out straight away.

It's a monthly review. Before, you didn't really have to do that. It wasn't the same stringent monthly review, but we were told under the Temporary Scheme that if you realise your turnover was higher, for example, than expected, you should pull out. And you will be required to keep records, etc.

I do know already . . . from the Temporary Scheme, I've heard organisations have already been contacted by Revenue to say that they will be getting an audit. Not that there has been a date or any set, but to sort of say, "You will be . . ." For various different reasons. It's not necessarily that they're concerned by what they're doing. I think it's quite random and then I think there are probably sectors that are being targeted as part of this.

But I suppose the other point that's quite important is when you are signing up for the scheme, and I have no doubt that you will have to continue to do this, but you have to sign as an organisation or as an employer a declaration that you will abide by the rules of the scheme, and that you accept, by signing up to the scheme, that if you are in breach, Revenue will have the ability to not only recoup the monies that you've paid but there's also the potential for interest penalties and arguably prosecution.

Now, I think there's going to have to be . . . the Revenue will have to be flexible on this. There's going to have to be an understanding of how much all of this is such a movable feast. You gave the good example earlier, Scott, that what if a certain county goes into lockdown? It can be quite hard to predict how that would look from the outset.

But as long as an employer can show that they acted reasonably, that they undertook a good audit, so to speak, into the few months, and they have documentations to back that up, I could not see Revenue penalising you. It's those that sort of blatantly knew that they weren't within the scheme but continued to avail of the scheme.

Scott: Yeah. Thank you very much there, Bláthnaid. If you've just joined us, and I see a couple have, you're listening to Bláthnaid Evans from Leman Solicitors and we're chatting about the Employment Wage Subsidy Scheme and other issues around that.

We're on to your questions, which are anonymous, but they've been coming in and lots of them.

Is the Employment Wage Subsidy Scheme payable for an employee if they are not working in the same way that the Temporary Wage Subsidy Scheme was?

Bláthnaid: I presume in that case you mean if an employee has been laid off, and the answer to that is no. So the whole nature of the Employment Wage Subsidy Scheme, it's an income support as opposed to a supplement. So, if an employee is laid off and not being paid, the Pandemic Unemployment Payment, or the PUP, is the more suitable benefit for that employee.

Scott: Okay. And it's been reduced as well, hasn't it?

Bláthnaid: Yeah. Well, it's actually kicking in on the 17th of September. Yeah, that's going to be reduced. So, currently, the top rate of €350 is going to be reduced to €300, and that's for those people that would've earned over €300 prior to the pandemic. Then there will be a new middle payment of €250, which will apply for people that are earning between €200 and €300 prior to the pandemic. And then the last payment will be €203 for those that would've been earning less than €200.

Redundancy Payments Act

Scott: Okay.

And you mentioned there the 17th of September, which is an important date. It's only next week, obviously. That's the date that they changed to the legislation on employees being able to claim redundancy payments changes, ones that have been laid off for four weeks or more. So have you heard anything about that? Or maybe just for listeners, explain what that is and what could happen if that legislation isn't renewed.

Bláthnaid: I mean, this has been brought in . . . the timeframe keeps getting expanded. This was originally brought in at the start when the Temporary Wage Subsidy Scheme, etc., was brought in. What usually happens is, if an employee has been laid off for a period of 4 weeks or 6 weeks in the previous 13 weeks, at the end of that period, the employee can go to their employer and say, "I want my redundancy now. I've been laid off for the four- to six-week period".

But because of everything related to COVID, emergency legislation was brought in that effectively paused that, and with the various amendments, extensions, etc., that is currently due to expire on the 17th of September.

So, arguably, at the moment, on the 18th of September, if an employee has been laid off for either the four or six weeks prior to that, they can go to their employer and seek statutory redundancy.

Now, I haven't heard anything as of yet, but I would imagine, given everything that is going on, that this legislation would be extended, but we tend to hear about these things very last minute. But it is concerning, no doubt, if it's not extended, because you do face the possibility of employees coming to you saying that they want the statutory redundancy.

What are the choices for employers? Unfortunately, it's limited. If they do that, they're entitled to their statutory redundancy, assuming that they have two years' continuous service, and the employer is required to pay that.

If the employer can't repay it because they simply don't have the money, there is a state scheme out there where the employee can claim under that. I don't know what the timeframe is, to be honest, in terms of getting that sort of payment, but I would imagine, if everybody started claiming under that, there's going to be a considerable backlog.

Scott: Yeah. It's a difficult situation for everybody. If you've been on reduced wages or the PUP for a number of months, then you might be tempted to look for some kind of . . . not quite a windfall, but you might need the money. And you can understand that. But at the same time, the employer has laid you off because they don't the work and therefore the money is not coming in, and therefore they probably don't have money to pay out redundancy payments. So very difficult situation.

Bláthnaid: Absolutely, yeah.

Scott: The trouble is that it finishes next week, the taking away of the right to claim redundancy money, and if it does change, we're going to find out and have a day's notice or so they're extending it.

So I suppose, as everything, it's just the way we're in at the moment, that people have got a lot to do, so that's maybe not number one on their agenda in the government. So watch out for that next week. We'll be reporting it in the weekly review update that we send out anyway.

So let's move on to another question that we've got here.

Reduction in Company Turnover

If a company has a successful financial performance in September and doesn't have a 30% reduction in turnover for that month, however, in October, November, and December, the turnover is expected or is only 50%, is the six-month period taken as a whole or is it month-to-month?

Bláthnaid: It's the period of the whole. So it's not month-to-month, but you do need to be careful to make sure that that doesn't sort of . . . A good month doesn't then mean you become below the 30%. It's not on a month-by-month basis. It's for that overall period it's down 30%. It does technically take into account that you could have a good month, but I would just be very careful that you don't potentially fall outside of the scheme if you have two continuous good months, for example.

Reductions in Pay and the EWSS

Scott: Okay. Oops, this one just skipped. There are so many questions coming in.

If an employee or employer imposed a salary cut under the Temporary Wage Subsidy Scheme, are they obliged to restore a full salary under the Employment Wage Subsidy Scheme, or is it a matter of contract between the employer and the employee?

Bláthnaid: The scheme is basically irrelevant for that purpose. It's a matter of contract and what has been agreed between the employee and employer about the pay cut.

Obviously, there was a rationale in some ways behind it when you're on the Temporary Scheme because the pay cuts for some employees had to come in, so you were able to explain that. Employees will know they're coming off the Temporary Scheme and may or may not be eligible on the Employment Scheme, depending on what their wages are.

So what I would recommend there is just be consistent in what you've said to the employee in terms of pay cuts. Keep them up to date. Do get their consent where possible, because technically, you do need their consent for any changes.

Scott: Okay. So that's a whole new webinar for us to go through.

What about industries such as construction? You may get paid a large amount for completing a job, but may not get any payments for a month or two. It's hard to compare by like period with any previous year because it just depends on when you get your contracts.

Bláthnaid: Yeah, it's a good question. So the first rule for determining turnover or drop in turnover is your turnover or your customer orders. And then if you satisfy all the other points, the tax clearance, the employees' wages, etc., then there is a .. . they call it the reasonable case, I think, which is basically extremely vague, but it seems to be you look at it on a case-by-case basis.

What I would say there in that circumstance is you should speak to an accountant and you will need to be able to show based on previous years, and because of the change and the downturn in the construction sector, that there is estimated to be a reduction of at least 30%.

But for those types of industries, no doubt it's not as straightforward as the Revenue are portraying it to be, and you probably will need to dig a bit deeper and have more paperwork probably than usual to be able to back that up.

Scott: Okay.

What are the employees' rights if they are working 40 hours per week and the employer is only paying them €203 Employment Wage Subsidy Scheme per week, i.e. no top-up?

Bláthnaid: Well, this scheme is more seen as a support than a . . . The Temporary Scheme was different in that you could pay them one cent to be on payroll and then you would get whatever it was, the amount under the Temporary Scheme, whereas the Employment Scheme, it's meant to sort of support their wages.

But take, for example, that you're paying someone €203 and they're working 40 hours per week. Arguably, then, you're in trouble there because if you break that down, they're being paid less than the national minimum wage, so the hours would need to be adjusted there.

Scott: Yeah, and presumably there's an argument if I'm on €400 a week and I'm only getting €200 or €203, then there's an unlawful deduction because the scheme is supposed to cover the €400 and it's a top-up. So they really should be paying an extra €197 in that example there.

Bláthnaid: Exactly.

Scott: And presumably, the employee could argue, "You're not paying me my full wage. I haven't agreed to a reduction in wages". Good luck getting through the adjudication service with it, but nonetheless, presumably, that's the situation at the moment. It's supposed to help the employer where they're getting 40 hours a week work, but they're only paying for half of it in that particular case.

Bláthnaid: Yeah, exactly.

Scott: A not-for-profit. We've got one here.

"We're a not-for-profit organisation providing services to people with a disability. We operate a café as part of this operation in addition to providing day services for people with a disability. We have people employed in the café and café sales are running at 20% of pre-COVID business. Is the reduction in sales sufficient to be in compliance with 30% reduction, or is it the total revenue of the organisation? We receive by the funding to operate the other services in addition to the café".

So, in this situation, it looks like the employer saw another revenue stream and it's that revenue stream which is struggling, not the presumably government-funded or external funding part of the organisation. It's an ancillary service here.

Bláthnaid: Yeah. So we're still waiting for more guidance on this scheme. As with the Temporary Scheme, drops of information were coming out, but I am going to presume . . . and I say presume. I can't be definitive on this. The same approach is going to be taken as was with the Temporary Scheme. And that was, technically, you could split up . . .

Take this example. If you could show that the café was it's own nearly separate entity, that it would have its own management structure, etc., in its own right, then you could arguably just look at the reduction in turnover of that. But if it's all under the same umbrella and there's just one management structure that oversees everything, then it's the overall business.

That was something they did with the Temporary Scheme. They did recognise that sometimes there was nearly sort of . . . I don't know want to say many companies, but nearly many organisations within a larger organisation. So I would imagine the same practical concept will be adopted in the Employment Wage Subsidy Scheme, but I haven't seen confirmation of that yet.

So, if you can show it's entirely separate and that there is the reduction in 30%, then you would be eligible. But if not, then unfortunately you wouldn't be.

Scott: Yeah. It's a bit tough for organisations that don't set them up as separate businesses, I suppose.

So next question.

What happens if you know you will be reemploying the staff once your business unit reopens in the next few weeks? Does this still mean they're entitled to redundancy?

Bláthnaid: I presume in this case the employee has been made redundant and then you want to reemploy him.

Scott: Well, maybe not. I'll cross you there. I think it's to do with they're claiming redundancy, so at the moment they've maybe been laid off for a period. Assuming they're allowed to claim their redundancy after 17th of September and with the employer coming around to say, "Look, it's only temporary. It has been in the past, but we hope to bring you back" . . .

Bláthnaid: Yeah. Sorry. I understand now. I think it's four weeks off the top of my head. Now, I'd need to check this, but normally, if you . . . You don't have the same mechanism we do in the UK, this sort of fire/rehire, so to speak. So, if a person is let go or is made redundant or whatever and then is rehired within four weeks, they're not entitled to the statutory redundancy. So, in that case, you'd have to make sure that you rehired them within the four weeks, but if not, then they would still continue to be entitled to the statutory.

Scott: Yeah, and if the employer's just saying, "Look, don't take your redundancy. We will bring you back within four weeks", they could presumably try and put the employee off a little bit. But under the law, it would depend on . . . Again, if this law is reintroduced where they're not allowed to claim redundancy pay, then it's not going to impact on that particular employer.

Bláthnaid: Exactly, yeah.

Scott: And this might be the last question coming up here.

If you pay commission in September and that puts the employee's earnings over the earning threshold of €1,462 per week, can they be eligible for the Employment Wage Subsidy Scheme in October?

Bláthnaid: It depends on the date that they . . . It's a good question, actually. Let me think about it. So, if you join the scheme . . . I mean, arguably, from the information I have seen, in October, they would form part of a new claim within a claim. So I'd presume that you signed up the 1st of September and you have X amount employees that are within that. People that have earned commission are not within that. But in October, they then fall within it, so you would be able to claim for them in October.

There isn't the sort of same like the Temporary Scheme at the moment. They haven't brought in the same rules, that you have to look at the average of what the earnings were in a period prior to the 1st of September. It's literally from when you're on the scheme, what are they earning? So you just wouldn't put them part of your application, say, on the 1st of September, but they could form part of a fresh application within it, say, from the 1st of October.

Scott: Yeah, I suppose that makes a bit of sense if the rules now allow you to have new employees and temporary employees whereas under the old scheme, it had to be those that were on the payroll in January and February of this year. Otherwise, you weren't eligible to be part of the scheme. This is allowing new people to come in, so I suppose if they weren't covered one month, they could be covered next.

Just remember, this is not legal advice that you're getting at the moment, folks, just in case. We haven't seen all this stuff. If you do have queries, though, if you're a Legal-Island subscriber, Leman do offer 50 minutes free advice at the beginning, so it's an initial call. If you're interested, you could send something in to Bláthnaid. Her details will be up, again, just as we finish here today.

I have another question, which has come in, which is a good point as well.

Assuming the law isn't changed, can an employee claim redundancy on the 18th of September, or do they have to wait the four weeks after because they've been excluded thus far under the legislation?

Bláthnaid: The short answer of this is . . . I went round and round in circles in this actually because the legislation isn't clear, but my take would be that they can claim it from the 18th of September.

Scott: Because they've already been laid off.

Bláthnaid: Yeah. Assuming they've been laid off for the four weeks prior to that, yeah. But if, for example, they'd only been laid off two weeks prior to the 18th of September, they would have to wait another two weeks.

Scott: Yes. Okay.

Final question that we're going to take here.

"We have been awarded a grant, but not sure of when we will receive this. We should get it this year. Does this mean we should take people off the scheme because we have been advised of the grant?"

Bláthnaid: It depends on what the impact is on your overall turnover. Just because you're getting the grant does not mean you're not eligible for the scheme. You need to just take that into account of your overall turnover and see if that still means that it would be down 30% or not.

Scott: Okay. Thank you very much to Bláthnaid Evans from Leman Solicitors. You can see her there. Good luck, Bláthnaid, in your endeavour to become Ireland's top transformative employee. When the awards come up, we'll look forward to all of that.

If there are any other questions, folks, you want to send them in, we will be looking at them.

You can see there in front of you, if you look near the bottom there, that our next webinar is actually next week. It's on the 15th of September. We may or may not find out by then whether the extension to this redundancy claim legislation has been brought in. But it's with Caroline McEnery, another speaker at the Annual Review this year as well. Caroline is going to be looking at other COVID issues. So, if you want to register, go on to the Events page at Legal-Island and you can register for that webinar as well.

For now, thank you to everybody for listening. Thank you particularly to Bláthnaid Evans from Leman Solicitors, and I hope to see you in November for the Annual Review, if not before. So thank you very much, folks. Take care.

Bláthnaid: Thank you.


This article is correct at 25/11/2020

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Bláthnaid Evans
Ogier Leman

The main content of this article was provided by Bláthnaid Evans. Contact telephone number is +353 632 3113 or email bevans@leman.ie

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