The UK Government announced a plan to avoid mass redundancies through the impact of the COVID-19 pandemic by offering to cover 80% of workers’ wages for five months starting retrospectively from 1 March 2020, known as the Coronavirus Job Retention Scheme (“Scheme”).
The Scheme will end on 31 October 2020 and closed to new entrants on 10 June 2020 (see further below). From July 2020, employers will be able to bring back furloughed employees on flexible working arrangements. However, financial support under the Scheme will be reduced from August 2020.
The views expressed in this article are based on the available Government guidance and the Treasury’s Direction on the Scheme as of Monday 27 July 2020. Sign up here to receive for free our regular employment law updates and details of our regular events and training.
1. WHAT IS THE CORONAVIRUS JOB RETENTION SCHEME?
A Government scheme providing financial support for employers to pay part of their employees’ salaries where their operations have been severely affected by coronavirus. The Government has stated that there is no limit on the total amount of money available under the Scheme. All UK businesses who are employers with a PAYE scheme are eligible.
Employers can claim for 80% of furloughed employees’ usual monthly wage costs, up to £2,500 a month, plus the associated employer National Insurance Contributions ("NICs") and minimum automatic enrolment employer pension contributions on that wage until the end of July 2020. From August 2020, financial support will be reduced, please see answer to question 3 below.
Prior to 30 June 2020, the minimum length of time for which an employee could be furloughed is 3 weeks. However, from 1 July 2020, there is now no minimum period of furlough. Employers can bring back furloughed employees for any amount of time and any shift pattern, whilst still being able to claim a grant under the Scheme for hours not worked until the end of the Scheme on 31 October 2020.
2. HOW LONG WILL THE SCHEME LAST?
The Scheme was originally due to run until 31 May 2020 and the Scheme’s original rules operated until 30 June 2020. Since 1 July 2020 the Scheme has introduced the option of ‘flexible furloughing’ (see below). The financial support under the Scheme will reduce from 1 August 2020 and will end entirely at the end of October 2020.
The Scheme closed to new applicants on 30 June 2020 (subject to TUPE, parental leave and armed forces reservists exceptions). To be eligible, an employee must have been placed on a 3-week furlough period prior to 30 June 2020. In light of this, the final date by which an employer could have furloughed an employee for the first time was 10 June 2020. Employers have until 31 July 2020 to make any claims in respect of the furlough period up the 30 June 2020.
The Treasury Direction dated 25 June 2020 clarified that after the 31 July 2020, a claim must not be made under the original Scheme.
On 1 July 2020, changes to the Scheme were made to increase flexibility for employers. Furloughed employees are now able to return to work for any amount of time and any shift pattern, with employers being asked to pay salaries for hours worked, known as ‘flexible furloughing’. Employers will still be able to claim under the Scheme for any hours not worked by their employees.
The contributions made by the Government under the Scheme will reduce from August 2020 (see answer to question 3). Once the Scheme ends, it is for employers to decide whether employees can return to their duties, in line with Government guidance on working from home and social distancing. It may be necessary for employers to consider redundancies, unpaid lay-offs or short time working (where employers have a contractual right to implement this). If employers are considering redundancies, they should start to plan in advance of the end of the Scheme, due to potential collective consultation periods of 30 or 45 days.
3. WHAT ARE THE CHANGES TO THE SCHEME FROM JULY?
The Scheme is only available to employers that have previously furloughed employees for a full 3-week period before the 30 June 2020. To read a concise overview of changes post July 2020, please read our article here.
Employers can bring back furloughed employees for any amount of time, whilst still being able to claim for their normal hours not worked under the Scheme, this is known as ‘flexible furloughing’ (see answer to question 4).
The number of claims an employer makes cannot exceed the maximum number of claims made under the Scheme by employers during previous claim periods, this will be known as a ‘high-watermark number’ (subject to TUPE, parental leave and armed forces reservist exceptions).
There is no minimum period of furlough, employees can be furloughed for any length of time. However, any furlough arrangement agreed between an employer and employee and reported in a claim to HMRC, must still cover a period of at least 7 calendar days and must not overlap months. Claims for less than 7 days in the Treasury Direction are known as an ‘orphan period’. An ‘orphan period’ claim can only be made, where a claim includes the first or last day of a month, and the employer has already claimed for the period immediately preceding the ‘orphan period’.
To flexibly furlough employees, a new written furlough agreement is required before any claim. The agreement is to be made in writing or confirmed in writing and can be varied. The agreement must be consistent with employment, equality and discrimination laws and be retained for 5 years, until at least 30 June 2025. The agreement must specify the main terms and conditions upon which the employee will either do no work or not work the full amount of usual hours in relation to their employment. Copies of all records relating to claims under the Scheme (including those relating to hours actually worked and usual working hours) should be retained for 6 years. Flexible furlough agreements can last any amount of time. Employers can enter into a flexible furlough agreement more than once.
The payments made under the Scheme will be slowly reduced to reflect people returning to work. The table below, reproduced from the Government factsheet, outlines the changes under the Scheme from July 2020 for employees who are furloughed 100% of the time:
Government contribution: employer NICs and pensions contributions*
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 pensions contributions*
Employer contribution: wages**
10% up to £312.50
20% up to £625
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
**Employers will be required to top up the Government payment to ensure employees receive 80 per cent of their normal pay, up to a monthly cap of £2,500.
* Government contribution covers employer NICs and pension contributions (up to an amount equivalent to the minimum automatic enrolment employer pension contribution) calculated on 80% of wages up to £2,500 a month.
4. WHAT IS ‘FLEXIBLE FURLOUGHING’?
Employers have been able to ‘flexibly furlough’ their employees from 1 July 2020. An employee is ‘flexibly furloughed’ if they undertake a mixture of furlough leave and part-time work. A furloughed employee can return to work for any amount of time and any shift pattern. Employers must meet 100% of the cost of any hours worked by an employee on flexible furlough, but the Government will pay for any hours of work the employee does not work. There is no obligation to flexibly furlough or right for an employee to be flexibly furloughed.
The latest Treasury Direction confirmed that a ‘flexibly furloughed’ employee must be a qualifying employee (i.e. been previously furloughed for 3 weeks prior to the 30 June 2020), and instructed to either do no work during a claim period or not to work their full amount of usual hours. The instruction by an employer to an employee to either not work or reduce their usual hours worked, should arise as a result of COVID-19 circumstances or measures taken to prevent or limit its transmission.
To make a claim under the Scheme and prior to making a claim, an employer must agree any ‘flexible furlough’ arrangement in a new written agreement (which can be in electronic form) with an employee. The written agreement or confirmation is to be retained until 30 June 2025, the new agreement must be made before a claim under the Scheme. Employers will need to report the actual hours worked and the usual hours an employee would be expected to work in a claim period.
Detailed guidance has been produced to assist employers with flexible furlough calculations, a helpful Scheme calculator can be accessed here.
An employer can keep employees on 100% furlough leave but from 1 August 2020 the contributions of the Government under the Scheme will be tapered as outlined in the table above.
5. HOW DO EMPLOYERS ACCESS THE SCHEME?
Step one: 'Furlough' their employees. Prior to the 30 June 2020, the guidance stated that an employee was furloughed if they have been instructed to cease all work, in relation to their employment, for 21 calendar days (i.e. 3 consecutive weeks) or more as a result of coronavirus between 1 March and 30 June 2020. With the introduction of ‘flexible furlough’ on the 1 July 2020, there is no longer a minimum period of furlough, as long as the employee in question has previously been furloughed for 3 consecutive weeks.
An agreement to cease all work (this can be a collective agreement made between an employer and a trade union) between the employer and employee is required. The agreement must specify the mains terms and conditions upon which the employee will cease work and be made in writing or confirmed in writing by the employer (such agreement or confirmation may be in electronic form such as an email). A record of the agreement must be held by the employer until 30 June 2025. To flexibly furlough an employee, a new written agreement is required.
Employers should therefore obtain agreement from all furloughed employees, otherwise there remains a risk that claims under the Scheme may not be successful. HMRC is not currently requesting any evidence at the point of making a claim via the portal, but this may be required as part of any subsequent HMRC audit. A claim for a flexibly furloughed employee, requires evidence of the actual hours worked and usual hours worked in a claim period. All records relating to claims should be retained for at least 6 years.
If an employer has a contractual right to lay off, an employee’s consent is not necessarily needed, on the basis that the employee has already agreed that the employer has a right to lay off within the contract of employment. However, in view of the Treasury’s Directions (which are not entirely consistent with the issued guidance) it would still be prudent to seek consent to the ‘furlough leave’ in written terms. Consent should not be an issue in these circumstances, where the alternative of lay off will mean that employees only receive statutory guarantee payments of £30 a day up to a maximum of 5 days.
Step two: Submit information about the employees that have been furloughed and calculate the amount being claimed from HMRC through a new online portal. The online portal launched on 20 April 2020 and can be accessed here.
In order to claim under the Scheme, employers will need to provide the following details through the online portal:
- an ePAYE reference number;
- the number of employees being furloughed;
- the names and National Insurance Numbers of the furloughed employees;
- the payroll/employee number for the furloughed employees (optional);
- a Self-Assessment Unique Taxpayer Reference, Corporation Tax Unique Taxpayer Reference or Company Registration Number;
- the claim period (start and end date);
- amount claimed (per the minimum length of furloughing of 3 consecutive weeks up to the of June 2020) including;
- employee wages;
- employer National Insurance contributions (for claims up to 31 July);
- employer minimum pension contributions (for claims up to 31 July);
- a bank account number and sort code;
- a contact name; and
- a phone number.
In addition to the above, a claim after 1 July 2020 for a ‘flexibly furloughed’ employee will need to include:
- The number of usual hours an employee would work in the claim period;
- The number of hours an employee has or will work in the claim period; and
- A record of the number of furloughed hours an employee has been furloughed in the claim period.
Please note before making a flexible furlough claim under the Scheme, a calculation needs to be made. This will include working out a flexibly furloughed employee’s wages. To do this, work out the length of a claim period, wages and usual hours and furloughed hours. Including employer NICs and pension contributions. Details on how to work these out can be read here.
An employer can make a claim in anticipation of an imminent payroll run, either at the point they run their payroll or after they have run their payroll. Employers will have until the 31 July 2020 to make any claims in respect of the furlough period up to 30 June 2020, this has been confirmed by the latest Treasury Direction. A step by step guide for employers can be accessed here.
6. WHAT IS A ‘FURLOUGHED WORKER’?
The concept of a ‘furloughed worker’ is new to UK Employment law, having never previously been used or defined. In essence, it is intended to be a form of paid temporary layoff.
A ‘furloughed worker’ is a qualifying employee who has been instructed to cease all work in relation to their employment, for a period of 21 days or more as a result of coronavirus between 1 March and 30 June 2020. However, from 1 July 2020 the flexible furloughing arrangements will apply as set out above and a ‘furloughed worker’ will not need to cease work for the 3 week period.
Government guidance states that a furloughed worker will remain employed but must not carry out any work (subject to flexible furlough). Furloughing workers was originally offered as an alternative to laying them off with only statutory guarantee payments (£30 per day for a maximum of 5 days) or making them redundant.
The Scheme only applies to employees (not self-employed persons).
7. WHICH EMPLOYEES ARE COVERED BY THE SCHEME?
Employers can only furlough and claim for employees who were on the PAYE payroll on or before 19 March 2020 (this was previously 28 February 2020) and who were notified to HMRC on a real time information (‘RTI’) submission on or before 19 March 2020. Eligible employees include full time, part time, employees on agency contracts, flexible and zero hour contracts.
Employees hired after 19 March 2020, or who were notified to HMRC on an RTI after this date, cannot be furloughed or claimed for in accordance with this Scheme. Additionally, employees who went on unpaid leave on or before 28 February 2020 cannot be furloughed until the agreed period of unpaid leave comes to an end. Employees who were placed on unpaid leave after 28 February 2020 can however be furloughed instead.
Apprentices can be furloughed in the same way as other employees and can continue to train whilst furloughed. However, employers must pay them at least minimum wage for all time spent training (so any shortfall between this and the amount that can be claimed under the Scheme must be covered). Further guidance is available on apprentice learning agreements here.
Employees on fixed term contracts can be furloughed. Fixed term contracts can be renewed or extended during the furlough period. Where a fixed term employee’s contract ends and is not extended or renewed, they will no longer be covered under the Scheme.
The Scheme also covers employers who re-hire employees who were made redundant or stopped working for them (for any reason) after 28 February 2020, even if employers do not re-employ them until after 19 March 2020. This applies as long as the employee was on the PAYE payroll as at 28 February and had been notified to HMRC on an RTI submission, on or before 28 February 2020. This means an RTI submission notifying payment in respect of that employee to HMRC, must have been made on or before 28 February 2020. However, there is no obligation on an employer to re-engage an employee and then furlough them.
After 1 July 2020, employers are only able to furlough employees that they have furloughed for a full 3-week period between 1 March and 30 June 2020. Any period of unpaid leave is not eligible to be claimed for under the Scheme. In addition, where an employee is brought back to work on a part time basis under a flexible furlough arrangement, employers will be able to claim for any normal hours of work not worked by the employee.
8. WHAT ABOUT INDIVIDUALS WHO ARE NOT EMPLOYEES?
The Scheme covers different categories of individuals who are not employees provided they are paid via PAYE, including but not limited to:
- Officer holders (including company directors);
An agreement to furlough will need to be made between the office holder and the party who operates PAYE for their income. Salaried company directors are eligible under the Scheme. The decision to furlough should be formally adopted as a decision of the company, in accordance with company law.
It is important to note that company directors have statutory duties, set out in the Companies Act 2006. Government guidance states that furloughed directors may carry out their duties to fulfil the statutory obligations they owe to the company, but they must not do any more than is reasonably necessary. However, the Treasury’s Direction takes a narrower approach and states that furloughed directors can only undertake work to fulfil their duties relating to filing company accounts, providing other information relating to the administration of the company, making a claim under the Scheme or making a payment of wages to an employee.
A furloughed director cannot carry out any work which generates commercial revenue or provides services to the company, even when carrying out reasonably necessary statutory duties. The Scheme is also applicable to PAYE salaried individuals who are directors of their own personal service company.
Directors with an annual pay period (who are paid once a year) are eligible for furlough, as long as they meet the relevant conditions. This includes being notified to HMRC on an RTI submission on or before 19 March 2020, which relates to a payment of earnings in the 19/20 tax year. This will be relevant for those on an annual pay period if the last payment notified to RTI was before 5 April 2019 and no further payments were notified until after 19 March 2020.
- Salaried members of Limited Liability Partnerships (LLPs);
Members of LLPs who are ‘salaried members’ are eligible under the Scheme. To furlough a member, the terms of the LLP agreement may need to be varied, for example to reflect that no work will be performed during the period of furlough and the impact on their remuneration.
- Agency workers (including those employed by umbrella companies);
Agency workers paid through PAYE are eligible for the Scheme. An agreement should be made between the agency (as the deemed employer) and the worker. No work should be undertaken through or on behalf of the agency whilst the worker is furloughed.
Where a worker is employed by an umbrella company that pays workers through PAYE, it is for the umbrella company to decide whether to furlough or not.
- Limb (b) workers (a dependant contractor)
Limb (b) workers who are paid through PAYE are eligible for the Scheme.
The Government has set up a separate Self-Employed Income Support Scheme; more information can be found here.
9. WHAT HAPPENS IF AN EMPLOYEE TRANSFERS TO A NEW EMPLOYER UNDER TUPE OR ON A CHANGE IN OWNERSHIP AFTER 28 FEBRUARY 2020?
A new employer is eligible to claim under the Scheme for the employees of a previous business transferred after 28 February 2020. A new employer can make a claim if it had a qualifying PAYE scheme for the transferred employee and it made a payment of earnings on or before 19 March 2020.
If a TUPE transfer takes place after the 10 June 2020, a new employer can rely on previous furlough arrangements by the transferring employer (i.e. before 10 June 2020), in order to furlough the transferring employees under the Scheme. If there are any qualifying employees, who are transferring to a new employer under TUPE, this will permit a new employer to increase the total number of claims (the high-watermark number) they can submit to HMRC (beyond the number of employees the new employer had furloughed before 10 June).
10. DO EMPLOYEES HAVE TO AGREE TO BE FURLOUGHED?
From 1 July 2020 any flexible furlough arrangement must be agreed with employees and confirmed in writing. The agreement must be consistent with employment, equality and discrimination laws. Prior to the 30 June 2020, employers should have obtained an employee’s agreement to be furloughed.
In addition, if sufficient numbers of staff are involved, it may be necessary to engage in a collective consultation process in order to obtain agreement to change terms of employment, particularly where this is an alternative to dismissal.
11. WHO CAN CLAIM?
The Scheme is open to all UK employers including business, charities, recruitment agencies and public authorities. In order to claim from the Scheme, employers must have: created and started a PAYE payroll scheme on or before 19 March 2020; enrolled for PAYE online; and a UK bank account.
If a company is in administration, the administrator can access the Scheme but only if there was a reasonable likelihood of rehiring workers.
Where employers are continuing to receive public funding for staff, even if they are non-public sector employers, the Government expects employers to use the funding to continue to pay staff and not furlough them. This could potentially include private sector employers who are providing services to the public sector. In practice, it is hoped that these employees will still be needed to deliver services to the public and will not need to be furloughed.
Individuals can furlough employees provided they pay them though PAYE and sent HMRC a real time information submission notifying a payment in respect of the employee on or before 19 March 2020.
12. WHAT HAPPENS IF AN EMPLOYEE DOES NOT AGREE TO BE A FURLOUGHED WORKER?
If an employer imposes furlough status or flexible furloughing arrangement without the contractual right to lay off or without consent, this will be a fundamental change to the contract of employment. Consequently, an employee could either resign and claim constructive unfair dismissal and/or claim breach of contract or make a claim for an ‘unlawful deduction from wages’ (after each payment is made which is below their full pay).
When a fundamental change of contract is imposed on 20 or more employees, this could give rise to a claim for a ‘protective award’ (of up to 90 days’ pay for each affected employee) for failure to collectively consult with employee representatives. This is a complex area and specialist employment law advice should be sought where employees refuse to agree to furloughed status or a flexible furloughing arrangement.
In addition, if an employer imposes furlough status without agreement, in view of the Treasury’s Direction, they may not be able to seek reimbursement under the Scheme.
13. CAN EMPLOYEES WORK WHEN FURLOUGHED?
Yes – please see answer to question 4 above and the introduction of ‘flexible furlough’ from 1 July 2020. Employees can now work under a flexible furloughed agreement.
Prior to 1 July 2020, the Government stated that a furloughed worker would remain employed but must not carry out any work. Work includes contributing to business activities or anything that generates income or profit for the employer.
If an employer wanted any furloughed worker to carry out work (prior to 1 July 2020), the work would have to be completed outside of the minimum three-week period of furlough leave, if any work was completed during this three week period, this would be a contravention of the Scheme. Please note that this requirement ended on the 1 July 2020, please see answer to question 4.
If an employee has more than one job they can be furloughed from each job, as each job is separate. An employee can take on other work whilst they are furloughed, provided it does not breach their contract of employment. Employers should review such arrangements if they agree flexible furloughing with any previously furloughed employee.
A furloughed employee can volunteer or undertake training as long as they do not provide services, contribute to business activities, generate revenue or income for the employer which has placed them on furlough leave. An employer can agree to find furloughed employees new work or volunteering opportunities whilst on furlough.
14. CAN EMPLOYEES WORK AS REPRESENTATIVES WHEN FURLOUGHED?
Yes - employees who are union or non-union representatives can undertake duties and activities in respect of individual or collective representation of employees or workers. However, as above, they cannot provide services to, or generate revenue for, or on behalf of their employer.
15. CAN AN EMPLOYER SELECT WHICH EMPLOYEES TO FURLOUGH?
Yes - employers can select which employees to furlough and should consider using objective selection processes similar to a redundancy processes, in order to minimise the risk of discrimination claims or constructive dismissal (due to breach of trust and confidence). Employers do not need to place all their employees on furlough or flexible furlough.
The guidance reminds employers that when deciding who to furlough, equality and discrimination law will apply in the usual way. The issue could be approached by an employer seeking ‘volunteers’.
16. CAN AN EMPLOYER SIMPLY LAY OFF EMPLOYEES INSTEAD?
Yes - where there is a contractual right to lay off, but as the Scheme pays for the wages costs up to the maximum level it would be sensible for any employer to use the Scheme. In addition, employees can apply for redundancy and claim redundancy pay if a lay off continues for four continuous weeks. There is no suggestion that this will be the case with the Scheme.
Currently, if an employee is working on reduced hours, or for reduced pay, they will not be eligible for the Scheme. Employers will have to continue paying the employee in accordance with their terms of employment. Such arrangements will normally arise by agreement or by virtue of a short time working clause in the employee’s contract of employment. However, with the introduction of flexible furlough from 1 July 2020, where employees have previously been furloughed, they can be asked to return to work on a part time basis, without preventing the employer from receiving a reimbursement of wages in respect of any normal hours not worked.
17. WHAT AMOUNTS WILL BE REIMBURSED UNDER THE SCHEME?
Until 31 July 2020, employers will receive a grant to cover the lower of 80% of the worker’s regular wage or £2,500 per month, plus the associated Employer National Insurance contributions and the minimum automatic enrolment employer pension contributions on the subsidised wage.
If employers choose to ‘top up’ their employees’ salaries, they cannot claim for additional National Insurance or pensions contributions made (including any contributions above the mandatory employer contribution).
Claims can be made for any regular payments that employers are obliged to pay to employees, including wages, past overtime, fees and compulsory commission payments. However, discretionary bonus (including tips), discretionary commission payments, any conditional payments (e.g. where a threshold must be met) and non-cash payments are not included under the Scheme.
Benefits in kind and salary sacrifice schemes (including pension contributions) should not be included. HMRC has stated than COVID-19 is a life event that warrant changes to employees’ salary sacrifice arrangements. Additionally, the apprentice levy and student loans will continue to be payable. Guidance on how to calculate 80% of an employee’s wage can be viewed here.
From August 2020, the grant amount under the Scheme will be reduced, please see the table in the answer for question 3 for more details. Additionally, any hours worked by an employee who is ‘flexibly furloughed’ will not be eligible for a claim under the Scheme, only the hours the employee did not work will be claimable.
18. HOW DOES THE FURLOUGH PAY CALCULATION WORK?
For full time and part time salaried employees, the guidance states that employees’ actual salary before tax, as in their last pay period before 19 March 2020, should be used to calculate the 80% payable under the Scheme. The same reference period is applicable to a flexible furlough calculation. If employers have calculated their claim based on the employee’s salary as at 28 February 2020 (as per the previous guidance) and this differs from their salary in their last pay period prior to 19 March 2020, they can choose to still use this calculation for their first claim.
For employees whose pay varies (e.g. zero hour or flexible contracts) and who have been employed or engaged for a full 12 months prior to the claim, a claim can be made for the higher of either the same month’s earning from the previous year or average monthly earnings from the 2019-20 tax year.
If employees have been employed for less than a year, a claim is based on the average of their monthly earnings since they started work. If employees have been employed for less than a month, a pro-rata calculation of their earnings so far can be used for the claim.
Claims should be started from the date that the employee finishes work and starts furlough, not when the decision is made, or when an affected employee receives written confirmation of their furloughed status. Grants under the Scheme will be prorated if an employee is only furloughed for part of a pay period (e.g. furloughed for the minimum 3 weeks).
Whilst an employee is on furlough, the employee’s wage will continue to be subject to deductions for income tax and employee national insurance contributions.
Guidance and worked examples on how to work out flexibly furloughed employees usual and furloughed hours can be read here. Additionally, you will need to calculate your employees’ wages, NICs and pension contributions to reflect the reduction in support from 1 August 2020, a Scheme calculator can be accessed here.
19. IS AN EMPLOYER REQUIRED TO SUPPLEMENT ITS EMPLOYEES’ SALARY OVER THE 80%?
No - employers do not have to ‘top up’ workers’ wages (except for holiday pay – see answer to question 22 below). If employers want to top up pay, they can, but they will not be able to claim for more than 80% of an employee’s salary subject to the limit of £2,500 per month. The amount of ‘top up’ is at the discretion of the employer but may be a factor in securing the agreement of an employee to being furloughed. Employers may need to ‘top up’ any period of notice pay for furloughed employees, who are currently on an 80% wage (see question 27 below.
If any employer wishes to selectively ‘top up’ employees on furlough leave, it should do so on an objective basis and in a way that eliminates or minimises the risk of discrimination claims. Pending the introduction of flexible furlough, employees must not work, even if they receive a top up salary.
Employer National Insurance Contributions and automatic enrolment contribution on any additional top up salary will not be funded through the Scheme. Please note that a flexibly furloughed employee will be paid for 100% of their actual worked hours, subject to any agreement which varies pay. Normal employment law applies to varying an employee’s contract, even if they are furloughed.
20. WHAT IF 80% OF AN EMPLOYEE’S SALARY FALLS BELOW THE NATIONAL MINIMUM WAGE?
Any furloughed worker must be paid the lower of 80% of their salary or £2,500 even if, based on their usual working hours, the amount due under the Scheme would fall below the National Living Wage ("NLW") or National Minimum Wage ("NMW").
If workers are required to complete online training courses at the request of their employer whilst they are furloughed, they must be paid at least the NLW or NMW for the time spent training (this must take into account the increase in NMW rates from 1 April 2020), even if this is more than the 80% of their wage that is subsidised under the Scheme. This may mean that the employer would need to top up their wages whilst they complete training.
Information on changes to the NMW which took place in April 2020 can be read here, in addition to a number of other key changes.
21. ARE EMPLOYEES ENTITLED TO OTHER BENEFITS DURING FURLOUGH?
Employees who are furloughed are entitled to their normal benefits, such as health insurance or company cars (however the salary used to calculate the claim under the Scheme should not include the cost of non-monetary benefits, including taxable benefits in kind, or benefits provided through salary sacrifice schemes). They would also be entitled to accrue holiday as per their employment contracts.
Any changes to existing benefits will need to be agreed with employees as part of the furlough agreement.
Employees will continue to be entitled to Statutory Sick Pay, maternity rights, parental rights, redundancy payments and protection against unfair dismissal whilst on furlough leave.
22. CAN EMPLOYEES TAKE HOLIDAY DURING FURLOUGH?
The Government has now published a detailed guidance note on holiday entitlement and pay during coronavirus (which can be accessed here). Workers on furlough continue to accrue statutory holiday and contractual holiday entitlements.
Holiday can be taken during furlough leave without disrupting furlough, although it should be paid at full salary. Employers therefore need to ‘top up’ any holiday pay to 100%. We have had a number of bank holidays since the Scheme was launched – employers can choose to top up pay on these days, or agree that employees can have a day of holiday in lieu. If employees usually work bank holidays, employers can agree that this is included in the grant payment under the Scheme instead.
Employees can therefore request holiday during furlough, although employers retain the flexibility to restrict when leave can be taken if there is a business need. Employers can also require employees to take holiday during a furlough period, subject to the terms of the contract of employment and the notice requirements in the Working Time Regulations 1998. Pay will again need to be topped up for such holiday. Where employees are furloughed but cannot take paid holiday due to COVID-19, they can carry over up to 4 weeks’ holiday over their next 2 holiday years.
An update to the guidance, clarifies that if an employee is flexibly furloughed then any hours taken as holiday during the claim period should be counted as furloughed hours, rather than working hours. However, the guidance states that employees should not be placed on furlough simply because they are due to take holiday.
The guidance states that if an employer requires an employee to take holiday while on furlough, they should consider whether any restrictions the employee is under (such as the need to socially distance or self-isolate) would prevent them from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday.
Zero-hour contracts workers are legally entitled to 5.6 weeks’ paid holiday per year. Any zero-hour worker on furlough continues to accrue statutory holiday entitlement and any additional contractual holiday provisions.
23. WHAT ABOUT ZERO HOUR CONTRACTS?
Zero-hours and flexible contract workers are covered by the Scheme. Please see the answer to question 7 above.
24. WHAT IF FURLOUGHED WORKERS ARE SICK?
Employees who are currently on sick leave or self-isolating are able to get Statutory Sick Pay (‘SSP’). The Scheme is not intended to cover short-term absences due to sickness. However, the government guidance states that employers can furlough employees who are currently off sick provided they have business reasons for doing so. In this case, the employee should no longer receive sick pay and would be classed as a furloughed employee.
The government guidance states that employees who are on long-term sick leave or who are unable to work because they are ‘shielding’ can also be placed on furlough, but this does not mean an employer has to furlough them or that they should be automatically selected for furloughing. Information on ‘shielding’ and current public health guidance for the ‘extremely vulnerable’ can be read here. From 1 August 2020, ‘shielding’ will be paused and employees can go to work, as long as the business is COVID-19 safe and if the employee cannot work from home.
The effect of the Treasury’s Direction, is that a period of furlough leave can only commence when an employee is fit to return to work, at the end of a period of sick leave. It does not appear to allow sick leave to be reclassified as furlough leave, whilst the employee remains unfit to work. Therefore, there is an inconsistency between the guidance and the Treasury’s Direction which needs to be resolved.
Furloughed employees retain their statutory rights, including their right to SSP. This means that furloughed employees who become ill must be paid at least SSP. It is up to employers to decide whether to move these employees onto SSP or to keep them on furlough, at their furloughed rate. If they are moved onto SSP, employers can no longer claim for the furloughed salary. However, if employers keep the sick employee on the furloughed rate, they remain eligible under the Scheme. If an employee has not been working, due to being clinically extremely vulnerable (i.e. shielding), and is currently in receipt of SSP, from 1 August 2020, that employee will no longer be eligible for SSP.
If an employee’s sick pay is less than the payments under the Scheme, they are unlikely to report their sickness as they will not be working anyway.
The updated guidance has clarified that employers should help employees who were previously shielding transition safely back to work. If shielded employees are unable to work from home, and they were previously furloughed, prior to 30 June 2020, then at an employer’s discretion, they would be eligible under the Scheme or SSP until 31 July 2020.
Please note that the introduction of the NHS test and trace service is likely to have a further impact upon employers as under the service, employers should support workers who are told to self-isolate and must not ask them to attend work. Additional guidance on test and trace can be read here.
25. WHAT IF AN EMPLOYEE IS ON MATERNITY LEAVE, ADOPTION LEAVE, PATERNITY LEAVE, SHARED PARENTAL LEAVE OR PARENTAL BEREAVEMENT LEAVE?
A recent announcement has extended the Scheme to parents (on parental leave) who return to work after 10 June 2020, even if they had not completed a 3 week furlough period prior to that date. In order to claim, a RTI record under a PAYE system needs to have been made to an eligible employee in the tax year 2019-20. In addition, any such individuals will not form part of the maximum numbers of furloughed employees which apply to the employer. This announcement has been confirmed in the latest Treasury Direction.
If an employee is eligible for Statutory Maternity Pay or Maternity Allowance, the normal rules apply, and they are entitled to claim up to 39 weeks of statutory maternity pay or allowance. If employers offer enhanced contractual pay for employees on maternity leave, this will be included as ‘wage costs’ that can be claimed for through the Scheme. The same principles apply to employees who qualify for adoption, paternity, shared parental or parental bereavement leave and pay.
However, employers may need to calculate their employee’s average weekly earnings differently if they were furloughed and then started leave on or after 25 April 2020 for maternity, adoption, paternity, shared parental or parental bereavement pay.
If an employee is getting Maternity Allowance while they are on maternity leave, they should not get furlough pay at the same time. If an employee agrees to be put on furlough, employers must tell them to contact Jobcentre Plus to stop their Maternity Allowance payments.
An employee on maternity leave can choose to end their maternity leave early and agree to be furloughed instead. They will need to give their employer at least 8 weeks’ notice (and will not be eligible for furlough pay until the end of the 8 weeks). However, these employees should be warned that ending their maternity leave early means they have returned to work and thus could be required to work at the end of their furlough leave.
26. CAN EMPLOYEES BE MADE REDUNDANT WHILST ON FURLOUGH LEAVE?
There is nothing to prevent employers from making employees redundant whilst on furlough leave. The employee guidance expressly states “Your employer can still make you redundant while you’re on furlough or afterwards” and the employer guidance states “where you must make redundancies, you should do so in accordance with the normal rules”.
This means that employees can also serve out their notice periods following a redundancy consultation process. HMRC have confirmed that employers can continue to claim furlough grants for employees during their notice period, this was reflected in updated guidance published on the 17 July 2020, which states employers can “continue to claim for a furloughed employee who is serving a statutory or contractual notice period”. However, payments in lieu of notice are not recoverable under the Scheme.
Many employees may be on 80% of their wage during furlough, employers should review employment contracts to review the level of notice pay required. It may be necessary to ‘top up’ to 100% pay during any notice period, to avoid potential claims from employees for unlawful deduction of wages or breach of contract. In cases where the employee’s notice period is the same as the statutory minimum notice then they should be topped up to full pay. If the employee’s notice period is more than the statutory minimum, there may not be an obligation to top up, although many employers will do so and this is clearly the safest course of action. If you are considering paying less than full pay, legal advice should be taken.
Due to COVID-19 many employees have unused holiday entitlement. Employers are entitled to request that employees use up any holiday left during a notice period, by providing notice of at least double the number of holiday day you want an employee to take.
Employers should note that the claims for statutory redundancy payments cannot be made under the Scheme and that employees redundancy rights are not impacted by furlough.
27. SHOULD EMPLOYERS KEEP RECORDS?
The Government will retain the right to retrospectively audit all aspects of the Scheme, with the scope to claw back amounts claimed fraudulently or in error. It is vital that employers keep records of payments made and correspondence sent to employees both in relation to any HMRC audit and to ensure the changes to employment status are properly recorded, particularly where consent was required.
A furlough agreement or confirmation of furlough with an employee must be retained by an employer until at least 30 June 2025. The current guidance, states that employers must keep a copy of all records for 6 years including: the amount claimed and claim period for each employee, records of actual hours worked and usual hours worked, the claim reference number, and calculations in case HMRC need more information about the claim. A written flexible furlough agreement needs to be retained for 5 years.
If an error is made when claiming, a claim can be deleted in the online service within 72 hours, any overpaid amounts must be paid back to HMRC. HMRC will deduct the overpayment from the next claim amount. If an error is made and there are no plans to submit another claim, you should contact HMRC about the overpayment. A record of the adjustment is to be kept for 6 years. Legislation is being introduced, in the draft Finance Bill 2020, to recover overclaimed Scheme amounts through the tax system.
At present, the guidance and Treasury Direction provide conflicting time frames for keeping records, all records should be kept for at least 6 years.
28. WHAT IS THE JOB RETENTION BONUS?
The Chancellor announced the Job Retention Bonus on the 8 July 2020, as part of the Government’s ‘Plan for Jobs’. As part of the Chancellor’s speech to Parliament, it was announced that “If you’re an employer and you bring someone back who was furloughed - and you continuously employ them through to January – we will pay you a £1,000 bonus per employee.” The Chancellor stated for businesses to be eligible for the bonus an “employee must be paid at least £520 on average, in each month from November to January the equivalent of the lower earnings limit in National Insurance”.
The ‘Plan for Jobs’ press release has clarified that an employee must be still employed as of 31 January 2021, for an employer to receive the bonus, with payments being made from February 2021. Current detail on the job retention bonus and how to claim is limited, we await further guidance, which is expected at the end of July 2020.
Payments received by an employer under the Scheme must be included as income in the business’s calculation of its taxable profits for Income Tax and Corporation Tax. Employers can deduct employment costs as normal. The updated employer’s guidance on the Scheme can be accessed here. Guidance for employees can be found here. There are currently 3 Treasury Directions for the Scheme, the first can be accessed here (15 April 2020), then second here (22 May 2020) and the third version here (25 June 2020).
If you have any questions regarding furloughed workers and the Coronavirus Job Retention Scheme and the implications for your organisation, please do not hesitate to contact a member of the employment team.
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