The confusion and concern created by Paragraph 2.2 of the third iteration of the Treasury direction, which stated that a claim should only be made where the payment will be used to continue employment, has hopefully been alleviated by HMRC after this morning’s update to the guidance.
Background
We recently highlighted that the third Treasury direction appeared to introduce a new requirement which is arguably designed to prevent the use of CJRS funds in this type of situation. Paragraph 2.2 states that a claim should only be made where the payment will be used to continue employment. This suggested that it would be contrary to the purpose of the scheme to use the funds where employment has been terminated and the employee is working under notice.
Accordingly, we advised caution and recommended that Employers intending to use CJRS funds to pay employees working under notice should contact HMRC for guidance and advised against doing so unless or until they receive confirmation from HMRC that they can.
Latest HMRC Guidance
Well, in yet another update from HMRC it has this morning updated its guidance to remove any uncertainty. The relevant passage now says: “You can continue to claim for a furloughed employee who is serving a statutory or contractual notice period, however grants cannot be used to substitute redundancy payments.”
This further clarification from HMRC will be warmly welcomed by Employers who were deeply concerned about the financial impact of having to fund 100% of notice pay to those employees who were serving their statutory or contractual notice.
We anticipate that the Treasury direction will soon be updated to reflect this latest guidance, but in the meantime Employers can take comfort from this morning’s update from HMRC and continue to claim for furloughed employees who are serving their notice period with confidence.
As we have been doing from the outset of the COVID-19 crisis, we will continue to monitor developments, digest and interpret the guidance, and keep you updated to ensure you remain informed.
Support for Employers
The COVID-19 pandemic and associated furlough scheme continues to present numerous and complex challenges for Employers.
If you are an Employer and require advice and support on extending full furlough, introducing flexible furlough, or are contemplating a restructure/reorganisation and/or redundancies as a result of the ongoing COVID 19 restrictions, call us now on 0800 612 4772 or Contact us via our website and we will set out clear options for you to help ensure you comply with your legal obligations.
Although the CJRS has now been extended to 31 October 2020, the government has made it clear that it will expect employers to make a financial contribution towards furloughed employees’ furlough pay from 1 August 2020. Furloughing employees beyond that date will therefore come at a cost to employers and many are considering whether they can afford to retain all employees going forward.
There may therefore still be fair reasons for employers to make furloughed employees redundant despite the extension of the scheme but the latest (third) Treasury direction appears to introduce a new requirement which is arguably designed to prevent the use of CJRS funds.
Can an employer make employees on furlough redundant?
We have confirmed in previous bulletins that the Employees’ CJRS guidance states that an employee can be made redundant while on furlough or afterwards, and that an employee’s redundancy rights will not be affected by being furloughed. However, an employer cannot claim reimbursement of redundancy payments under the scheme (Employers’ CJRS guidance).
The position in respect making furloughed employees redundant and not being able to claim reimbursement of redundancy payments under the scheme has not change, but the latest (third) Treasury direction appears to introduce a new requirement which is arguably designed to prevent the use of CJRS funds to pay employees working under notice.
Claiming through the CJRS for redundant employees
Although the guidance seems to confirm that a furloughed employee may be made redundant, there has been criticism of employers that have taken this approach. The aviation minister, Kelly Tolhurst, suggested in response to British Airway’s decision to dismiss employees on furlough that the Treasury should review the CJRS to ensure that it is not used to pay the wages of employees on redundancy notice (although the criticism may have been based on the fact that it appears that the dismissals were with a view to offering new roles with inferior terms).
On 29 June 2020 the Secretary of State for Work and Pensions expressed similar concern about the use of CJRS funds as a means of paying wages without an intention to keep the relevant employees employed.
The third Treasury direction appears to introduce a new requirement which is arguably designed to prevent the use of CJRS funds in this type of situation. Paragraph 2.2 states that a claim should only be made where the payment will be used to continue employment. This suggests that it would be contrary to the purpose of the scheme to use the funds where employment has been terminated and the employee is working under notice.
The schedule to the third Treasury direction states that the previous Treasury directions continue to have effect subject to the modifications in the schedule. It appears that the Third treasury direction is intended to have retrospective effect, although this is not entirely clear.
Employers may take some comfort from the comments of the Financial Secretary to the Treasury on 8 July in response to a question in Parliament on this issue. He responded that employers are permitted to continue to claim under the scheme for a furloughed employee where they are serving their notice period. However, this is not reflected by the wording of the third Treasury direction and has not been expressed in writing by HMRC or the government.
Whereas previously and based on the earlier iterations of the Treasury direction, we would have been comfortable advising Employers that they could continue to claim under the scheme for a furloughed employee where they are serving their notice, we would now, in light of the latest (third) Treasury direction, recommend that Employers intending to use CJRS funds to pay employees working under notice should contact HMRC for guidance and would advise against doing so unless or until they receive confirmation from HMRC that they can.
Support for Employers
The COVID-19 pandemic and associated furlough scheme continues to present numerous and complex challenges for Employers.
If you are an Employer and require advice and support on extending full furlough, introducing flexible furlough, or are contemplating a restructure/reorganisation and/or redundancies as a result of the ongoing COVID 19 restrictions, call us now on 0800 612 4772 or Contact us via our website and we will set out clear options for you to help ensure you comply with your legal obligations.
The Chancellor has produced a third iteration of the Treasury Direction in relation to the Coronavirus Job Retention Scheme (CJRS) and this was published on Friday 26 June 2020. The new Direction sets out the rules that will apply under the amended CJRS from 1 July 2020, which allows for ‘flexible furlough’ arrangements, until 31 October 2020, when the scheme ends.
Third Treasury Direction on the UK Coronavirus Job Retention Scheme
The updated Treasury Direction which legally underpins the Coronavirus Job Retention Scheme (CJRS) and which can be read here, sets out the rules that will apply under the amended CJRS from 1 July 2020. The new rules allow for ‘flexible furlough’ arrangements, until 31 October 2020, when the scheme ends. In summary the Treasury Direction largely reflects the recent Guidance and clarifies a number of points:
Flexible furlough
From 1 July to 31 October, employers are permitted to use the CJRS flexibly. This means the scheme enables part-work/part-furlough. Employers can claim under the scheme for time furloughed and will have to pay employees normally for time spent working.
Cut-off dates
The new Direction confirms that the cut-off date for making claims under the original CJRS, as set out in the previous Directions and in force until 30 June, is 31 July.
It also confirms that a business will only be able to participate in the amended CJRS that applies from 1 July if it has made a claim under the original scheme by 31 July in respect of an employee who has been furloughed for a minimum of three weeks beginning on or before 10 June.
From 1 July, the scheme is changing from month to month. Although more than one claim can be made in a month, a claim must start and end within the same calendar month and must relate to seven or more consecutive days. An exception to the seven-day claim period is made for “orphan periods” at the beginning or end of a month.
Maximum number of employees you can claim for
The number of employees who can be claimed for post 1 July cannot exceed the maximum number in any one claim made for furlough periods prior to 1 July – the new Direction refers to this as the “high-watermark number”.
Exceptions to 10 June cut-off and “high – watermark number”
The new Direction confirms the exception to the 10 June cut-off and the “high-watermark number” for family leave returners and armed forces reservists. There is a similar exception where a TUPE transfer takes place after 10 June 2020, in relation to transferring employees who were furloughed by the transferor under the original CJRS (but who cannot satisfy the 10 June cut-off as regards the transferee). The Direction confirms that the number of these previously-furloughed, transferring employees is added to the transferee’s cap in the same way as “returning employees”.
Financial support for employers
The financial support for employers will not change until 1 August 2020. From 1 August, the government will pay 80% of wages up to a cap of £2,500 for the hours an employee is on furlough and employers will pay ER NICs and pension contributions for the hours the employee is on furlough.
From 1 September, the government will pay 70% of wages up to a cap of £2,187.50 for the hours the employee is on furlough. Employers will pay ER NICs and pension contributions and top up employees’ wages to ensure they receive 80% of their wages up to a cap of £2,500, for time they are furloughed.
From 1 October, the government will pay 60% of wages up to a cap of £1,875 for the hours the employee is on furlough. Employers will pay ER NICs and pension contributions and top up employees’ wages to ensure they receive 80% of their wages up to a cap of £2,500, for time they are furloughed.
Requirement to reach an agreement on flexible furlough
In our previous bulletin, analysing the recent Guidance on flexible furlough, we referred to the fact that the Guidance is not clear whether the agreement to flexible furlough needs to be full written agreement with employees as opposed to written confirmation / letter as has been applicable for full furlough.
The new Direction confirms the requirement to reach agreement on flexible furlough arrangements but says that the agreement only needs to be confirmed in writing by employers (which may be in electronic form such as an email). Therefore, any flexible furlough arrangements require communication and letters/ emails to employees to evidence agreement. A record of the agreement must be retained by the employer until at least 30 June 2025. As with full furlough, the agreement for flexible furlough can be by means of a collective agreement.
Employers should note that there is a new requirement that the agreement must have been made before the beginning of the period to which the CJRS claim relates – and must not be made retrospectively. However, the Direction confirms that an agreement can subsequently be varied.
Calculating wages
The Direction provides various examples of how to calculate employee wages based on usual hours and hours worked, to determine how much can be claimed under the CJRS.
The requirements are not straightforward and will have to be worked through carefully especially if the claim period does not align with a calendar month. To align with a calendar month, a furlough period may have to start mid-week. In all other cases (for example, if a furlough period started on Monday 6 July), the complex flexible furlough calculations will have to be undertaken. The government has worked through some examples and has updated its calculator on the gov.uk website to assist with hours calculations to claim the CJRS grant.
If you are considering bringing back your workforce part-time, we recommend you start planning and discussing with employees as soon as possible. Bear in mind that some employees will have childcare issues and others may be shielding or live with someone who is shielding. The government expects employers to be understanding and flexible with employees in these situations.
Purpose of CJRS / redundancy
One point on which urgent clarification is being sought is that the new Direction now says that the purpose of the CJRS is to “continue the employment of employees” which begs the question can it be used to pay notice pay or any costs associated with termination of employment? This new wording appears to contradict the Employee Guidance on the CJRS which still states, “your employer can still make you redundant while you are on furlough”. HMRC have apparently referred this question to a specialist team.
This is clearly of significance to some employers who are presently exiting people or are planning to and we will of course keep it under review.
Support for Employers
The COVID-19 pandemic and associated furlough scheme continues to present numerous and complex challenges for Employers.
If you are an Employer and require advice and support on extending full furlough, introducing flexible furlough, or are contemplating a restructure/reorganisation and/or redundancies as a result of the ongoing COVID 19 restrictions, call us now on 0800 612 4772 or Contact us via our website and we will set out clear options for you to help ensure you comply with your legal obligations.
On Friday night HMRC released details of the flexible furlough scheme. The most significant change is that the minimum three-week period for furlough has been removed (as of 1 July 2020). There is no minimum period, although any claim through the CJRS portal must be in respect of a minimum one-week period (i.e. employers can only put in four claims a month, not 31).
The details were released in two ways; the existing guidance was updated, and three new pieces of guidance were released. It would be fair to say the way this update was released was far from helpful.
In summary, the key take-aways from the latest guidance are as follows:
There are no changes to grant levels in June.
From 1 July, employers can bring furloughed employees back to work for any amount of time and any shift pattern, while still being able to claim CJRS grant for the hours not worked.
From 1 August 2020, the level of grant will be reduced each month. To be eligible for the grant employers must pay furloughed employees 80% of their wages, up to a cap of £2,500 per month for the time they are being furloughed.
For June and July, the government will pay 80% of wages up to a cap of £2,500 for the hours the employee is on furlough, as well as employer National Insurance Contributions (ER NICS) and pension contributions for the hours the employee is on furlough. Employers will have to pay employees for the hours they work.
For August, the government will pay 80% of wages up to a cap of £2,500 for the hours an employee is on furlough and employers will pay ER NICs and pension contributions for the hours the employee is on furlough.
For September, the government will pay 70% of wages up to a cap of £2,187.50 for the hours the employee is on furlough. Employers will pay ER NICs and pension contributions and top up employees’ wages to ensure they receive 80% of their wages up to a cap of £2,500, for time they are furloughed.
For October, the government will pay 60% of wages up to a cap of £1,875 for the hours the employee is on furlough. Employers will pay ER NICs and pension contributions and top up employees’ wages to ensure they receive 80% of their wages up to a cap of £2,500, for time they are furloughed.
Employers will continue to able to choose to top up employee wages above the 80% total and £2,500 cap for the hours not worked at their own expense if they wish. Employers will have to pay their employees for the hours worked.
The timetable for changes to the scheme is set out below. Wage caps are proportional to the hours an employee is furloughed. For example, an employee is entitled to 60% of the £2,500 cap if they are placed on furlough for 60% of their usual hours. The table shows Government contribution, required employer contribution and amount employee receives where the employee is furloughed 100% of the time.
** Wage caps are proportional to the hours not worked **
July
August
September
October
Government contribution: employer NICs and pension contributions
Yes
No
No
No
Government contribution: wages
80% up to £2,500
80% up to £2,500
70% up to £2,187.50
60% up to £1,875
Employer contribution: employer NICs and pension contributions
No
Yes
Yes
Yes
Employer contribution: wages
–
–
10% up to £312.50
20% up to £625
Employee receives
80% up to £2,500 per month
80% up to £2,500 per month
80% up to £2,500 per month
80% up to £2,500 per month
The Coronavirus Job Retention Scheme will close on 31 October 2020.
Formore details, Employers can:
Check if they can claim (original employer guidance doc – – UPDATED
Check which employees they can put on furlough guidance doc – – UPDATED
Steps to take before calculating a claim using the CJRS – – NEW
The COVID-19 pandemic and associated furlough scheme continues to present numerous and complex challenges for Employers.
If you are an Employer and require advice and support on the various steps you need to take to end furlough, call us now on 0800 612 4772 or Contact us via our website and we will set out clear options for you to help ensure you comply with your legal obligations.
The Chancellor has announced that parents on statutory maternity and paternity leave who return to work will be eligible for furlough scheme even after 10 June cut-off date.
We confirmed yesterday that Employers who had not already furloughed a member of staff who they may want to furlough in the future had until yesterday (10 June 2020) to do so in order for the current three-week furlough period to be completed by Tuesday 30 June.
Today (11 June 2020) we can confirm that the Chancellor has announced that parents on statutory maternity and paternity leave who return to work in the coming months will be eligible for furlough scheme even after 10 June cut-off date.
This will only apply where they work for an employer who has previously furloughed employees and to people on adoption leave, shared parental leave, and parental bereavement leave.
Chancellor of the Exchequer Rt Hon Rishi Sunak MP said:
“When I announced these changes to the furlough scheme last month, I was clear that we wanted to do this in a fair way, that supports people back to work as the country begins to re-open following coronavirus.
But for parents returning from leave, their circumstances has meant that they are still in need of support, and I’m pleased that they will be able to receive the financial assistance they and their family will need.”
As we have confirmed previously, the Coronavirus Job Retention Scheme (CJRS) has been extended until October, with new flexibilities introduced from 1 July to support the economy by allowing furloughed employees to return to work part-time.
More details of the change will be included in updated guidance, published on 12 June.
Support for Employers
The COVID-19 pandemic continues to present numerous and complex challenges for Employers. With various other changes to the Furlough Scheme due to come into effect from 1 July, Employers should be seeking professional advice to ensure they understand their options and implement their preferred actions effectively and legally.
If you are an Employer and require advice and support on the various steps you need to take to end furlough, call us now on 0800 612 4772 or Contact us via our website and we will set out clear options for you to help ensure you comply with your legal obligations.
Employers have until today to furlough any member of staff who hasn’t already been furloughed.
Employers who have not already furloughed a member of staff who they may want to furlough in the future have until today, Wednesday 10 June 2020, to do so in order for the current three week furlough period to be completed by Tuesday 30 June. If Employers miss that deadline, they won’t be able to furlough them under the new flexible scheme.
The government guidance states: “The scheme will close to new entrants from 30 June. From this point onwards, employers will only be able to furlough employees that they have furloughed for a full 3 week period prior to 30 June.”
It would appear that this rule only applies to employees who have not been furloughed at all during the period 1 March to 30 June which suggests employers will still be able to re-furlough staff even if they have returned to work and are not furloughed as at 30 June but full details of the new scheme, which are due to be published on Friday 12 June will hopefully clarify this.
Support for Employers
The COVID-19 pandemic continues to present numerous and complex challenges for Employers. With various other changes to the Furlough Scheme due to come into effect from 1 July, Employers should be seeking professional advice to ensure they understand their options and implement their preferred actions effectively and legally.
If you are an Employer and require advice and support on the various steps you need to take to end furlough, call us now on 0800 612 4772 or Contact us via our website and we will set out clear options for you to help ensure you comply with your legal obligations.
Yesterday (29 May) the Chancellor announced more details about the extension to the Coronavirus Job Retention Scheme (CJRS), the key details being as follows:
Flexible furloughing
From 1 July 2020, Employers have the flexibility to bring previously furloughed employees back to work part-time – with the government continuing to pay 80% of wages for any of their normal hours they do not work up until the end of August. This flexibility comes a month earlier than previously announced to help people get back to work.
Employers can decide the hours and shift patterns that your employees will work on their return and will be responsible for paying their wages in full while working. This means that employees can work as much or as little as your business needs, with no minimum time that Employers can furlough staff for.
Any working hours arrangement that Employees agree with their employee must cover at least one week and be confirmed to the employee in writing. When claiming the CJRS grant for furloughed hours, Employers will need to report and claim for a minimum period of a week. They can choose to make claims for longer periods such as on monthly or two weekly cycles if they prefer. Employers will be required to submit data on the usual hours an employee would be expected to work in a claim period and actual hours worked.
If your employees are unable to return to work, or you do not have work for them to do, they can remain on furlough and you can continue to claim the grant for their full hours under the existing rules.
Employer contributions
From August, the government grant provided through the job retention scheme will be slowly tapered.
in June and July, the government will pay 80% of wages up to a cap of £2,500 as well as employer National Insurance (ER NICs) and pension contributions for the hours the employee doesn’t work – employers will have to pay employees for the hours they work.
in August, the government will continue to pay 80% of wages up to a cap of £2,500 but employers will pay ER NICs and pension contributions – for the average claim, this represents 5% of the gross employment costs that they would have incurred if the employee had not been furloughed.
in September, the government will pay 70% of wages up to a cap of £2,187.50 for the hours the employee does not work – employers will pay ER NICs, pension contributions and 10% of wages to make up 80% of the total up to a cap of £2,500.
in October, the government will pay 60% of wages up to a cap of £1,875 for the hours the employee does not work – employers will pay ER NICs, pension contributions and 20% of wages to make up 80% of the total up to a cap of £2,500.
the cap on the furlough grant will be proportional to the hours not worked.
If you are a smaller employer, some or all of your employer NIC bills will be covered by the Employment Allowance, so you should not be significantly impacted by that part of the tapering of the government contribution.
Self-Employed Grant Scheme Extended
In addition, the Chancellor also announced the self-employed grant is being extended, with applications opening in August for a second and final grant. There will be parity with the reducing furlough scheme, paying 70% (not 80%) of average earnings up to £6,750/
Important dates for Employers
It’s important to note that the scheme will close to new entrants from 30 June. From this point onwards, Employers will only be able to furlough employees that they have furloughed for a full three-week period prior to 30 June.
This means that the final date that Employers can furlough an employee for the first time will be 10 June for the current three-week furlough period to be completed by 30 June. Employers will have until 31 July to make any claims in respect of the period to 30 June.
At the date of this announcement we are still awaiting updates to the Treasury Direction and the Employer’s Guidance and therefore this information provided by the Chancellor in his press conference should be taken with a degree of caution until the full details are published, but these headline points announced should enable Employers to start planning for the coming weeks and months.
Ending Furlough
With this additional clarity form the UK government and lockdown restrictions easing across the UK, many employers will want to start planning what a return to work from furlough might look like. To assist Employers, we have added a new section to our COVID-19 Furlough FAQs – RETURNING TO WORK FROM FURLOUGH and further guidance on our blog.
If you are an Employer and require advice and support on the various steps you need to take to end furlough correctly, call us now on 0800 612 4772 or Contact us via our website and we will set out a clear, step by step plan you can follow to to help ensure you comply with your legal obligations.
With lockdown measures already relaxed in England, Wales and Northern Ireland, and Scotland due to announce its plan to come out of lockdown on Thursday 21 May 2020, many Employers are starting to plan for ending furlough, but what steps do Employers need to take?
What Employers Need to Know
Before ending furlough Employers will first need to undertake a risk assessment to ascertain what changes in work practices might be necessary to comply with new health and safety requirements. Where changes to work practices are necessary to comply with health and safety requirements, Employers will need to consult with the affected employees.
Employees not in groups represented by a trade union must be provided with information and consulted under the Health and Safety (Consultation with Employees) Regulations 1996 (SI 1996/1513) (Consultation with Employees Regulations), either through elected representatives or directly.
With the furlough scheme being extended to the end of October 2020, Employers now have more time to assess their staffing requirements and determine when they may wish to end furlough and how this might look operationally. Ending furlough will look different for each employer; some will expect employees to return to their place of work when furlough ends whereas others may introduce home working initially and adopt a phased approach for employees returning to the workplace.
Whether the employer can dictate the end of furlough will depend on what has been explicitly or implicitly agreed between the parties. However, the absence of an explicit right to bring furlough to an end and require employees to return to work is unlikely to be an issue in most cases because employees are likely to be in receipt of less pay while they are furloughed and may be eager to return to work given the difficulties in securing alternative employment while the COVID-19 crisis continues.
An employer should give any required period of notice specified in the furlough agreement. If no period of notice was specified, the employer should aim to give reasonable notice, depending on the particular circumstances of both the employer and the employee.
The Acas guidance states that there is no minimum period for furlough, but employers should talk to staff about any plans to end furlough as early as possible and encourage staff to raise any concerns or problems about returning to work. Employees and workers should be ready to return to work at short notice, but employers should be flexible where possible.
Support for Employers
If you are an Employer and require advice and support on the various steps you need to take to end furlough correctly, call us now on 0800 612 4772 or Contact us via our website and we will set out a clear, step by step plan you can follow to to help ensure you comply with your legal obligations.
The coronavirus Statutory Sick Pay Scheme launches online on 26 May 2020, which will enable employers with less than 250 employees, or tax agents acting on behalf of employers, to claim back coronavirus-related Statutory Sick Pay.
Employers are eligible to use the scheme if:
they’re claiming for an employee who’s eligible for sick pay due to coronavirus
they had a PAYE payroll scheme in operation before 28 February 2020
they had fewer than 250 employees across all PAYE schemes on 28 February 2020
they’re eligible to receive State Aid under the EU Commission Temporary Framework.
The repayment will cover up to two weeks of the applicable rate of SSP, and is payable if a current or former employee was unable to work on or after 13 March 2020 and entitled to SSP, because they either:
have coronavirus
are self-isolating and unable to work from home
are shielding because they’ve been advised that they’re at high risk of severe illness from coronavirus.
For more information about eligibility and how employers can prepare to use the scheme, Employers can visit GOV.UK and search ‘Check if you can claim back Statutory Sick Pay paid to employees due to coronavirus (COVID-19)‘.
Support for Employers
If you are an employer and require advice and support on any employment related matter, COVID-19 or otherwise, call us now on 0800 612 4772 or Contact us via our website.
The Chancellor Rishi Sunak has today announced the Coronavirus Job Retention Scheme (CJRS) will be extended for four months, until the end of October 2020 but in doing so, he said he will ask companies to start sharing the cost of the scheme from August 2020.
Until the end of July, there are no changes, which will be warmly welcomed by the devolved administrations of Scotland, Wales and Northern Ireland who, unlike England, have not yet decided not to relax lockdown restrictions.
Although the scheme will continue for all sectors and regions until October, the Chancellor announced that from August to October 2020, the scheme will continue on the basis furloughed employees can be brought back part-time.
Full details will be published by the end of May.
With this additional clarity form the UK government, now is the ideal time for employers to start planning what a return from furlough might look like. To assist Employers, we have added a new section to our COVID-19 Furlough FAQs – RETURNING TO WORK FROM FURLOUGH.
Support for Employers
If you are an employer and require advice and support on any employment related matter, COVID-19 or otherwise, call us now on 0800 612 4772 or Contact us via our website.
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