This Q&A was written on 16 November 2020 further to our Q&A regarding the original CJRS in place from 1 March 2020 to 30 June 2020 and our Q&A regarding the CJRS in place from 1 July 2020 to 31 October 2020. This Q&A addresses the extension to the CJRS and changes compared to the earlier schemes from 1 November 2020 onwards and should be read in conjunction with the two previous CJRS Q&A's. It will be updated from time to time as more information becomes available.
Please note that this document does not constitute the giving of legal advice – this is intended to be a guide to the issues employers will need to consider and is not a substitute for taking specific legal advice as situations are likely to be fact specific.
We recommend that this Q&A is read in conjunction with the official guidance which can be found here:
On 20 March 2020, the Government announced the introduction of a Coronavirus Job Retention Scheme (CJRS) in the wake of the Coronavirus Pandemic in the UK. The purpose of the scheme was to provide financial support to employers to allow them to retain employees through the pandemic crisis by placing employees on furlough.
The CJRS was updated on 1 July 2020 and from 1 August 2020, employers were required to contribute in varying degrees to the payments made to employees. The concept of flexible furlough was also introduced allowing employees to work part-time whilst receiving furlough pay for hours not worked.
The scheme was due to end on 31 October 2020, but on that date, the Chancellor announced that in light of a new national lockdown starting on 5 November 2020, the existing furlough scheme would be extended. The new scheme will, initially, effectively mirror the scheme that was in place in August 2020 (see further below) but will be reviewed in January 2021, when it is likely that employers will once again be required to contribute in greater proportions to the payments made to employees. The scheme will remain open until 31 March 2021.
From December 2020, HMRC will be publishing the names of companies and LLPs who have made claims under the scheme for the month of December onwards unless, in doing so, it exposes any employees to serious risk of violence or intimidation.
From 1 July 2020, employees have been able to work part-time, for any amount of time and on any working pattern, and receive furlough pay in relation to hours not worked. Employers will pay employees as normal for the hours they work and claim the CJRS grant for hours not worked, subject to the applicable caps. For ease, this is referred to as ‘flexible furlough.’ Flexible furlough will be available to all eligible employees under the extension from 1 November 2020 onwards.
From 1 November. employers will be able to claim 80% of an employee’s wages for hours not worked subject to the cap of £2,500 per month but the employer must pay the employer’s NIC’s and pension contributions. The level of contribution will be reviewed in January 2021.
For further details regarding calculations, please see https://www.gov.uk/guidance/claim-for-wages-through-the-coronavirus-job-retention-scheme and https://www.gov.uk/guidance/claim-for-wages-through-the-coronavirus-job-retention-scheme.
The Chancellor has announced that the CJRS will come to an end on 31 March 2020. The terms of the CJRS will be reviewed and likely amended before this end date.
All employers with a UK bank account and UK PAYE schemes can claim the grant. Neither the employer nor the employee needs to have previously used the CJRS.
The government expects that publicly funded organisations will not use the scheme, as has already been the case for CJRS previously, but partially publicly funded organisations may be eligible where their private revenues have been disrupted. All other eligibility requirements apply to these employers.
The claims deadlines have become stricter under the most recent version of the CJRS. Claims made from 1 November 2020 must be submitted by no later than 11:59pm, 14 calendar days after the month you are claiming for. Where claim deadlines fall on a weekend or bank holiday the claim must be submitted the next working day.
HMRC may accept a claim after the deadline where there is a “reasonable excuse” for failing to make the claim in time. However, you would also need to show that you took reasonable care to submit the claim in time, and that if unable to do so the claim was submitted without delay after the excuse no longer applied.
The guidance now contains examples of what HMRC may regard as a “reasonable excuse” including excuses such as death of a partner or close relative shortly before the deadline, unexpected hospital stays, serious or life threatening illness and computer or software failures. The full list can be seen in the updated guidance here: https://www.gov.uk/guidance/claim-for-wages-through-the-coronavirus-job-retention-scheme
If you are claiming for a period that starts on or after 1 November 2020, then you can only claim for furloughed employees that were employed and on payroll on 30 October 2020. This means you must have made a PAYE RTI submission to HMRC between 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee.
Full details are set out here: https://www.gov.uk/guidance/check-which-employees-you-can-put-on-furlough-to-use-the-coronavirus-job-retention-scheme
The scheme still covers:
No. Under the terms of the scheme between 1 July 2020 and 31 October 2020, the number of employees an employer could claim for in any single claim period could not exceed the maximum number of employees that they had claimed for in any previous claim period before 30 June 2020.
No such restriction applies in relation to periods from 1 November 2020 onwards.
If you wish to furlough an employee after 1 July 2020, you must still obtain agreement directly from the employee or with a recognised trade union. This applies if you wish to place employees on “flexible furlough” too. Please see our original CJRS Q&A for further information on how to record this agreement in writing.
A record of the written agreement to flexible furlough must be kept for five years (until at least June 2025). Employers must also keep a record of how many hours employees work and how many hours they are furloughed. We have produced a Flexible Furlough Letter Template for customers to access and download on our Customer Zone.
There is no minimum furlough period.
A practical point to bear in mind is that there is a seven day minimum period that can be claimed through the CJRS online portal. The only exception to this is where you have an “orphan period” which is a period of up to six days, at the start of the calendar month or end of the calendar month. We think this is to cover situations where you have periods of furlough that overlap calendar months and we would recommend seeking specific advice from an accountant in this regard.
The guidance is clear that, during the hours which employers record employees as being on furlough, rather than in work, employees cannot be asked to do any work that makes money for the organisation, linked organisation or associated organisation OR provide services for the organisation, linked organisation or associated organisation.
No. The guidance states that the scheme is designed to help employers whose "operations have been severely affected by coronavirus (COVID-19) to retain their employees and protect the UK economy". The guidance recognises that different businesses will face different impacts from coronavirus.
It is important to note that the government will retain the right to retrospectively audit all aspects of the scheme with scope to claw back fraudulent or erroneous claims. We would, therefore, recommend that employers keep a record of their business reasons for furloughing staff to support their case in any later audit. Specifically, it would be helpful to retain a paper trail demonstrating that the decision to furlough was taken as a result of the Coronavirus pandemic, and its effects on the business, and that furloughing took place to avoid alternatives such as reductions in pay, lay-off or redundancy or other methods of drastically reducing payroll costs.
Examples of how to calculate employee’s wages are set out here: https://www.gov.uk/government/publications/find-examples-to-help-you-work-out-80-of-your-employees-wages
For employees who have been employed for a full 12 months prior to the claim, you can claim for the relevant percentage of the higher of:
subject to the cap of £2,500 per month.
If the employee has been employed for less than 12 months, you can claim for the relevant percentage of an average of their monthly earnings since they started work with you, subject to the cap.
If the employee has been employed for less than a month, you should pro-rata their earnings and calculate the relevant percentage of this amount, again, subject to the cap.
As the extended Scheme allows for anyone to be furloughed who has not been furloughed previously, those on any form of parental leave (set out below) can be furloughed. Employees returning from maternity leave need to give the statutory eight weeks' notice to end maternity leave early in order to be furloughed (and get furlough pay, typically higher than SMP).
Statutory Parental Leave includes:
Further information can be found here: https://www.gov.uk/guidance/check-which-employees-you-can-put-on-furlough-to-use-the-coronavirus-job-retention-scheme
No CJRS claim may include amounts of specified statutory payments (such as maternity pay) in respect of an employee during the employee’s period of furlough and the gross amount of earnings falling for reimbursement must be correspondingly reduced. The guidance confirms that the furlough pay for those employees who return after statutory leave should be calculated in accordance with their normal salary, not the pay they received while on leave. However, the furlough pay of employees on variable pay should be calculated based on the same month's earnings from the previous year, or the average monthly earnings for the 2019-20 tax year (see above). Employers should be prepared to look at individual circumstances on a case-by-case basis to ensure that the employee is not disadvantaged because they took statutory leave entitlement.
HMRC has updated its statutory payments manual to provide that employees do not qualify for SSP if they are on furlough.
The guidance confirms that the furlough pay for those employees who return after sickness absence should be calculated in accordance with their normal salary, not the pay they received while on sickness absence. However, the furlough pay of employees on variable pay should be calculated based on the same month's earnings from the previous year, or the average monthly earnings for the 2019-20 tax year (see above). Employers should be prepared to look at individual circumstances on a case-by-case basis to ensure that the employee is not disadvantaged because they took statutory leave entitlement.
The guidance states those who are shielding and are clinically extremely vulnerable are strongly advised to work from home.
If the employee cannot work from home, they may be eligible for Statutory Sick Pay (SSP), Employment Support Allowance (ESA) or Universal Credit. Other eligibility criteria will apply.
If the employee is on the company payroll before 30 October 2020, they may also be eligible for furlough. The guidance suggests this is to the employer’s discretion.
The updated shielding guidance can be found here: https://www.gov.uk/government/publications/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19
Yes, they can request this, but the employer does not have to agree to it.
We have produced a Flexible Furlough Letter Template for customers to access and download on our Customer Zone.
Yes, subject to the employee’s agreement. The Guidance confirms that periods of flexible furlough can last for any length of time and that employees can be furloughed more than once (while the scheme remains in existence).
All other employment rights remain the same during furlough and periods of flexible furlough. Therefore, all contractual benefits, such as annual leave entitlement, would continue to accrue in full during any period of furlough/flexible furlough, unless expressly agreed otherwise with affected employees. This is because furlough is akin to a sabbatical, during which all terms and conditions of employment remain.
It would be open to employers who are seeking the consent of employees to place them on furlough/flexible furlough and, therefore, to accept a reduced rate of pay to also seek consent to vary benefits for the duration of the furlough. For example, employers could ask employees to forgo a car allowance, or to only accrue statutory holiday entitlement during the furlough and to forgo any additional contractual entitlement. Employers would need to weigh up the benefits of minimising these additional costs during this time versus making consent harder to obtain.
It is worth noting that the government has passed emergency legislation to relax the restriction on carrying over the four weeks’ leave to which workers are entitled under the WTD, where it was not reasonably practicable to take it in the leave year "as a result of the effects of the coronavirus (including on the worker, the employer or the wider economy or society)".
This would apply where an employer had enough work to bring back part of the workforce but could not yet bring back the whole workforce from furlough.
It is possible for employers to ask for volunteers for flexible furlough, although do be aware of the risk of getting more volunteers than you require and then having to select some and not others. Consider only asking for volunteers from certain parts of the business where the work has begun to return to normal.
All other employment rights and protections still apply and, therefore, employers will need to ensure that they do not inadvertently trigger claims for discrimination, or less favourable treatment of part-time or fixed-term workers, when selecting employees for flexible furlough. We recommend that employers rely on business justifications for identifying roles for flexible furlough and/or consider adopting objective selection criteria (similar to how you would select an employee from a pool for redundancy) as necessary. Employers should also consider whether rotating staff on flexible furlough is a possibility.
In some cases, employers may find that they would want to select employees for flexible furlough based on what would, in normal circumstances, be discriminatory criteria, for example continuing to furlough vulnerable groups for the purposes of assisting with shielding and returning employees who are not considered vulnerable. Legal advice should be obtained before making any decisions that could be discriminatory, however, this could be potentially justified as a proportionate means of achieving the legitimate aim of protecting the health and safety of vulnerable employees, as identified in government guidance.
If an employee is currently furloughed and refuses to return to work on a full or part-time basis, an employer will need to consider the employee’s reasons for refusing to return.
If the employee is at high risk in relation to coronavirus, they may want to remain furloughed if the work cannot be performed from home. The employer will need to consider their obligations under the Equality Act and their health and safety obligations. A dismissal could result in claims for discrimination and/or automatic unfair dismissal. We recommend that legal advice is sought before commencing any procedure to dismiss such an employee.
If the employee says that they are unable to return due to childcare reasons, employers should consider whether any arrangements could be made to allow the employee to work around their childcare commitments. If this is not possible, employers should consider continuing to furlough the employee, or making use of annual leave, parental leave or unpaid leave to cover the period. Dismissing the employee could risk an indirect sex discrimination claim and we recommend that legal advice is sought before making any decision to dismiss.
The HMRC guidance states that annual leave (which includes bank holidays where these form part of annual leave entitlement) can be taken during the furlough period. However, annual leave must be paid at the normal rate of pay.
As a result, where employees take annual leave during a period of furlough or flexible furlough, the employer must top up pay to full pay (at least for the statutory minimum holiday entitlement, further advice on this point can be obtained from your legal advisor) but is likely to be able to cover the majority of the holiday pay costs from the CJRS subsidy payments where the leave falls during a period of furlough. Many employers would, therefore, see this as preferable to employees accruing large amounts of annual leave to be taken after furlough ends, and/or having to meet the full costs of pay in lieu of accrued holiday on termination of employment (for example where redundancies may follow periods of furlough).
Rather ominously the guidance adds “During this unprecedented time, we are keeping the policy on holiday pay during furlough under review.” Therefore, there is scope for this element of the guidance to change.
The Government published further guidance on 13 May 2020 to confirm that employers can require employees to take annual leave during the furlough period and that the notice periods for doing so remain the same as for employees not on furlough. It is certainly possible for employers to use the double notice rule (you can serve notice on the employee to take annual leave and that notice must be double the length of the amount of annual leave you are requiring them to take) to require employees to take annual leave (an existing right under WTR), however, the government guidance suggests that employers should consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the employee from resting and enjoying leisure time, which the guidance states as being ‘the fundamental purpose of holiday’. Employees may therefore attempt to argue that it is not reasonably practicable for them to take holiday during a period when restrictions/lockdown is in place, however the guidance on 13 May 2020 notes further on that workers will be able to take annual leave during a period of furlough ‘in most cases at least’.
There may also be employee relations and morale issues if you seek to force employees to use up their holiday during periods when they cannot fully enjoy it due to lockdown restrictions. Certainly, an instruction to employees to use their full holiday entitlement for the whole year during periods of furlough, which leaves them no ability to take holiday later in the year, would present a level of risk. We recommend that legal advice is obtained if you are considering compelling employees to use up annual leave entitlement during periods of furlough.
The guidance issued on 1 July states that if an employee is flexibly furloughed, any hours taken as holiday during the claim period should be recorded as furloughed hours rather than working hours.
Working part-time may affect the rate of holiday pay to which employees are entitled. For employees with normal working hours, there is unlikely to be any difference because holiday pay is based on normal working hours. However, for employees with no normal working hours (or those who have normal working hours but for whom pay varies), their holiday pay is likely to be affected as weeks where they work part-time will be taken into account in the calculation of their average remuneration (whereas fully furloughed weeks would not). It may be possible for such employees to argue that holiday pay calculated on this basis does not reflect “normal remuneration” and should therefore be based on normal working weeks unaffected by flexible furlough. As yet, there is no case law determining this issue and therefore employers calculating holiday pay including flexibly furloughed weeks could potentially be accruing liability for claims.
Individuals are only entitled to the National Living Wage (NLW)/National Minimum Wage (NMW) for the hours they work. Therefore, if you return employees under a flexible furlough agreement, they must be paid at least NLW / NMW on average for the hours they work.
Yes, if it is permitted by the contract of employment. The updated guidance states that employees are allowed to work for another employer whilst they are on furlough. However employees will need to be able to return to work for the employer that has placed them on furlough if the employer decides to end a period of furlough. Under the updated scheme, this will be relevant in situations where employees have maybe sought alternative employment during a period of furlough and employers now require them to return to work either on a full-time or part-time basis.
Yes, with a word of caution.
A Treasury Direction was published on 13 November 2020, confirming a significant change in the previous guidance. Employers can no longer claim for a furloughed employee who is serving a statutory or contractual notice period.
The guidance specifically states: “For claim periods starting on or after 1 December 2020, you cannot claim for any days on or after 1 December 2020 during which the furloughed employee was serving a contractual or statutory notice period for the employer (this includes people serving notice of retirement or resignation). If an employee subsequently starts a contractual or statutory notice period on a day covered by a previously submitted claim, you will need to make an adjustment.
This includes employees who are serving their notice as a result of resignation.
HMRC has issued guidance on how employers should pay back CJRS grants if they have over-claimed. This guidance can be found at https://www.gov.uk/guidance/claim-for-wages-through-the-coronavirus-job-retention-scheme and https://www.gov.uk/guidance/pay-coronavirus-job-retention-scheme-grants-back.
On 8 July 2020, the Chancellor announced that employers who bring employees back from furlough and continue to employ them until 31 January 2021 will be eligible for a £1,000 bonus per each returning employee. This scheme has now been withdrawn.
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