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Further guidance on the Coronavirus Job Retention Scheme (CJRS) was published by the Government on 4 April. This additional information offers clarity on some of the previously unanswered questions about the CJRS. We summarise the key updates below.
Please Note: Since this article was posted the guidance has since been updated. Please find the latest information on the most recent blog here.
YOUR QUESTIONS ANSWERED
The additional guidance confirms that employers must seek the consent of their employees before placing them on furlough leave (in line with usual employment law) and confirms that equality and discrimination laws will apply in the usual way when employers are assessing who to furlough.
To be eligible for the grant, employers must confirm in writing to the employees that they have been furloughed. We now understand that a record of this communication must be kept for five years.
The guidance confirms that employees must be furloughed for a minimum period of 3 consecutive weeks. Employers can rotate the employees that they place on the furlough scheme, however when employees return to work, they must be taken off furlough and each separate instance of placing an employee on furlough must be for the minimum period of 3 consecutive weeks.
When calculating a claim, this should be started from the date that the employee finishes work and starts furlough, not the date when the decision to place the employee on furlough is made, or the date of any written correspondence confirming their furloughed status.
Employers can claim for any regular payments they are obliged to pay employees including wages, past overtime, fees and compulsory commission payments. However, discretionary bonus (including tips) and commission payments and non-cash payments are excluded.
The reference to “salary” does not include non-monetary benefits, including taxable Benefits in Kind or benefits provided through salary sacrifice schemes (including pension contributions) that reduce an employee’s taxable pay. Where the employer provides benefits to furloughed employees, this should be in addition to the wages that must be paid under the terms of the CJRS.
Employers should continue to pay the Apprenticeship Levy and Student Loans as usual, however, the reimbursement of these payments are not covered by the CJRS.
Apprentices. The additional guidance confirms that apprentices can be furloughed in the same way as other employees and continue to train whilst on furlough leave. Employers must continue to pay their apprentices at least the Apprenticeship Minimum Wage, National Living Wage or National Minimum Wage as appropriate for time spent training. Employers will, therefore, need to cover any shortfall between the amount that can be claimed for the apprentice’s wages through the scheme and their appropriate minimum wage. Additional guidance is available on the Gov.uk website for apprenticeship training during the COVID-19 pandemic.
Individual Employers. Individuals can furlough employees, such as nannies, provided that they pay them through PAYE and they were on their payroll on, or before, 28 February 2020.
Office Holders. Office holders are eligible under the scheme. The furlough, and any ongoing payment during furlough, will need to be agreed between the office holder and the party who operates PAYE on the income they receive for holding their office. Where the office holder is a company director or member of a Limited Liability Partnership (LLP), the furlough arrangements should be adopted formally as a decision of the company or LLP.
Company Directors. Salaried company directors are eligible to be furloughed. Where a company considers that it is in compliance with the statutory duties of one or more of its individual salaried directors, the board can decide to furlough such directors. The decision to furlough one or more salaried director should be formally adopted as a decision of the company, noted in the company records and communicated in writing to the director(s) concerned.
During furlough, directors can continue to carry out any duties required to fulfil their statutory obligations owed to the company provided they do no more than would reasonably be judged necessary for that purpose. To this end, the directors should not continue work that they would ordinarily carry out to generate commercial revenue or provide services to, or on behalf of, the company.
This also applies to salaried individuals who are directors of their own personal service company.
Salaried members of Limited Liability Partnerships (LLPs). Members of LLPs who are designated as employees for tax purposes (‘salaried members’) under the Income Tax (Trading and Other Income) Act (ITTOIA) 2005 are eligible under the scheme. To furlough a member, the terms of any LLP agreement (or any such agreement between the LLP and the member) may need to be varied by a formal decision of the LLP, for example to reflect the fact that the member will perform no work in the LLP for the period of furlough, and the effect of this on their remuneration from the LLP. For an LLP member who is treated as being employed by the LLP (in accordance with s863A of ITTOIA 2005), the reference salary for this scheme is the LLP member’s profit allocation, excluding any amounts which are determined by the LLP member’s performance, or the overall performance of the LLP.
Limb (b) workers. Limb (b) workers paid through PAYE are eligible for the scheme. Those who pay tax on their trading profits through Income Tax Self-Assessment, may instead be eligible for the Self-Employed Income Support Scheme (SEISS) which was announced by the Chancellor on 26 March 2020.
Administrators. The previous guidance confirmed that where a company is being taken under the management of an administrator, the administrator will be able to access the Job Retention Scheme. The additional guidance now confirms that the scheme would expect an administrator only to access the scheme if there is a reasonable likelihood of rehiring the workers such as in the event of a sale of the business.
Agency workers. Agency workers who are paid through PAYE are eligible under the scheme, including where they are employed by umbrella companies. This decision should be agreed between the agency (as the deemed employer) and the worker, and the guidance advises that it would be wise to discuss the need to furlough with any end clients involved. Agency workers should perform no work for, through or on behalf of the agency that has furloughed them while they are furloughed, including for the agency’s clients. Where an agency supplies clients with workers who are employed by an umbrella company that operates the PAYE, it will be for the umbrella company and the worker to agree whether to furlough the worker or not.
Foreign Nationals. Foreign nationals can be placed on furlough.
Previously dismissed employees. Employees who have been dismissed for any reason since 28 February 2020 can be rehired and placed on furlough. The previous guidance limited rehiring employees and placing them on furlough to those who were dismissed by reason of redundancy only since this date.
Employees working reduced hours. If an employee is working but on reduced hours or for reduced pay, they will not be eligible under the scheme.
Employees with more than one job. An employee with more than one job can be furloughed by one employer and still work for another. Also, an employee who is placed on furlough is able to start a new job.
Employees on unpaid leave. Employers can only claim for employees that started unpaid leave after 28 February 2020.
Shielding employees. Employers can claim for furloughed employees who are shielding in line with public health guidance, or those that need to stay at home with someone who is shielding, if they are unable to work from home and as a result would otherwise be made redundant.
Employees with caring responsibilities. Employees with caring responsibilities that have arisen as a result of COVID-19, such as the need to look after children, are eligible to be furloughed.
Employees on fixed term contracts. Employees on fixed term contracts can be furloughed. Their contracts can be renewed or extended during the furlough period without breaking the terms of the scheme. However, where a fixed term employee’s contract ends because it is not extended or renewed, they will no longer be eligible under the scheme.
In addition to the Government’s updated guidance as at 4 April 2020, the Advisory, Conciliation, Arbitration Service (ACAS) has also published further guidance.
In this, ACAS confirms that an employee on furlough leave can still request and take their holiday in the usual way, which includes bank holidays. However, this poses further unanswered questions around whether an employee can be on furlough and on holiday at the same time and whether the minimum three consecutive weeks of furlough is still achieved to qualify for reimbursement etc. The risk here is that those on holiday cannot also be on furlough at the same time and so it may affect an employer’s claim for reimbursement.
Caution should be exercised in relation to the taking of holidays and bank holidays during furlough, until further guidance is received from the Government on this point. In the meantime, it may be safer to defer bank holidays until such time as the employee is not on furlough.
Due to the unprecedented nature of the Coronavirus pandemic, the guidance on how to adapt to its impact evolves daily and becomes out of date very quickly. We recommend that you keep checking to ensure you are following the most up to date guidance, particularly as there are still some unanswered questions about the CJRS. Further, in addition to the public guidance, there are always specific circumstances that individual employers must consider, such as a particular employee or employer arrangements or issues (contractual or otherwise). If in doubt, please take advice. You can contact our specialist Employment team on 0161 941 4000 or via email.