When the Coronavirus Job Retention Scheme (CJRS) opened on 20 April 2020, 185,000 firms submitted claims, 1,300,000 employees were reported as furloughed, with a total value of £1.5bn. A new Claim Guide and Calculator were issued to help employers submit their claims.
April was a busy month, with the Guidance for Employers now in its 8th iteration. The various versions of the Guidance have clarified several points that were unclear or simply not dealt with; however, the publication of the Treasury direction on 15 April has left some aspects of the CJRS unclear due to the conflict between it and the HMRC Guidance. The difficulties arise because the Treasury direction takes precedence over the Guidance.
Set out below is a round-up of the key points that have been clarified or confirmed since our last blog post:
- Workers who are shielding are now entitled to SSP as they are included in the definition of those “deemed to be incapable of work”.
- Employers are permitted to furlough employees who are on long-term sick leave and those who are shielding. They cannot, however, be in receipt of SSP and furlough pay at the same time.
- Employees on short-term sick leave can also be furloughed, but employers are encouraged to only furlough once sick leave has come to an end.
In relation to the second and third bullet points, please note that the Treasury direction, conflicts with the Guidance, as the direction states that the period in respect of which a claim can be made from the CJRS does not start until the SSP entitlement period has ended. As the direction takes precedence over the Guidance, this may mean that some employers may not be entitled to claim furlough pay for sick employees who were placed on furlough. It may also depend upon the date when the employee was furloughed.
- Employees who fall ill whilst on furlough can continue to receive their furlough pay or be moved onto SSP. Again, the Treasury direction does not entirely reflect the Guidance and so the position is not confirmed.
- New guidance was issued to help employers claim back SSP due to Covid-19.
- Employers can furlough workers on all categories of work visas.
- Employers can furlough workers who have been transferred under TUPE after 28 February 2020.
- Whilst on furlough, employees cannot undertake any work for their employer or a linked company.
- The qualifying date for furlough, when the employee has to have been on the employer’s payroll, was changed from 28 February to 19 March 2020.
- The requirement that the employee would otherwise have been redundant in order to be furloughed was removed. The CJRS applies to anyone who is furloughed “by reason of circumstances as a result of coronavirus or coronavirus disease”, which gives employers a wider remit.
- It was clarified that a director who was furloughed could only carry out their relatively narrow statutory duties.
- The Treasury direction is at odds with the government guidance in respect of the written agreement required. This has been clarified to mean that a written agreement is required to place a worker on furlough (which must be kept for 5 years), but there is no obligation to have the worker’s written consent. The direction has yet to be updated to reflect this.
- The CJRS was extended from 31 May to the end of June.
- The update to the Employee’s Guidance confirms that holiday can be taken at the worker’s request, but remains silent on whether an employer can force workers to take holiday during a period of furlough. Any holiday is payable at the worker’s normal rate of pay.
- Union or non-union representatives may undertake duties and activities for the purpose of individual or collective representation of employees or other workers. It won’t therefore be a breach of furlough for a representative to accompany an employee to a disciplinary hearing or redundancy consultation.
- Directors who pay themselves once a year (typically one-person businesses where most revenue is taken as dividends) are, subject to certain conditions, eligible for furlough.
- Statutory maternity and other parental payments are calculated by reference to the normal weekly earnings for the purposes of eligibility, not by reference to furlough pay.
This is a summary of the various updates and clarification that has taken place since our last update on 6 April 2020. It is guidance only and should not be taken as legal advice. Should you have a query about a specific matter, please contact us on firstname.lastname@example.org