This Q&A was written on 15 June 2020 and last updated on 03 November 2020, further to our Q&A regarding the original CJRS in place from 1 March 2020 to 30 June 2020. This Q&A addresses the changes made to the Coronavirus Job Retetion Scheme (CJRS) from 1 July 2020 to 31 October 2020 and should be read in conjunction with the original CJRS Q&A. 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:
https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme
https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19
https://www.gov.uk/guidance/check-if-you-could-be-covered-by-the-coronavirus-job-retention-scheme
https://www.businesssupport.gov.uk/coronavirus-job-retention-scheme/
1. What is the updated CJRS?
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 is to provide financial support to employers to allow them to retain employees through the pandemic crisis by placing employees on furlough.
On 12 May 2020 the Chancellor of the Exchequer announced that changes were to be made to the CJRS. A further Treasury Direction was published on 26 June to provide technical detail on the updated CJRS scheme (the Third Treasury Direction).
The Third Treasury Direction includes some additional wording that was not present in the first two directions. This states: “Integral to the purpose of the CJRS is that the amounts paid to an employer…[under the CJRS] are used by the employer to continue the employment of employees in respect of whom the CJRS claim is made whose employment activities have been adversely affected by the coronavirus and coronavirus diseases or the measures taken to prevent or limit its further transmission”.
This additional wording has led to understandable concern that this suggests that a claim should only be made where the employee’s employment will be continuing, and that therefore claims should not be made in relation to those who are working under notice, or who are proposed to be redundant. HMRC has confirmed informally that employers may continue to use the scheme for employees serving a statutory notice period (see Q26 below) and the HMRC guidance was amended on 10 July 2020 to reflect this.
From 1 July 2020, changes to the scheme will mean:
- From 1 August 2020, employers will be required to contribute to furlough pay of employees, in increasing amounts, until the scheme closure on 31 October 2020; and
- Employees will be able to work part-time for their employers while also receiving furlough pay – ‘flexible furlough’.
On 8 July, the Chancellor announced further measures to assist employers, including the creation of the Job Retention Bonus (see Q28 and Q29 below).
2. What is Flexible Furlough?
From 1 July 2020, employees will be able to work part-time, for any amount of time and on any working pattern. 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.’ In order to access furlough from 1 July onwards, the employee must have been previously furloughed prior to 30 June for a minimum of at least three consecutive weeks.
For the avoidance of doubt, employers can still furlough employees after 1 July on a full-time basis if required (provided that they have previously been furloughed prior to 30 June for a minimum of at least three consecutive weeks). Flexible furlough simply assists employers to bring their workforce back on a gradual basis.
3. What can be claimed under the updated CJRS?
The government has taken a tapered approach to withdrawing the CJRS from use, gradually reducing the amount the government will contribute to paying employees’ pay. As such, the following stages have been set down by the Chancellor:
- In July 2020 employers will be able to claim 80% of an employee’s wages and employer’s NIC’s and pension contributions subject to the maximum of £2,500 for hours not worked. The scheme essentially remains unchanged for this month.
- From 1 August 2020 employers will be able to claim 80% of an employee’s wages for hours not worked subject to the cap of £2,500 but the employer must pay the employer’s NIC’s and pension contributions.
- From 1 September 2020 employers will be able to claim 70% of an employee’s wages for hours not worked subject to a cap of £2,187.50 but the employer must pay the employer’s NIC’s, pension contributions and 10% of the employees’ wages to make up to 80% of wages or the £2500 cap.
- From 1 October 2020 employers will be able to claim 60% of an employee’s wages for hours not worked subject to a cap of £1,875 but the employer must pay the employer’s NIC’s, pension contributions and 20% of the employees’ wages to make up to 80% of wages or the £2,500 cap.
In all cases, the cap applies to the employee’s monthly earnings and will therefore be proportionate to the hours not worked. Employers will have to specify the usual hours an employee would be expected to work in a week in order to make a claim through the CJRS.
4. Is there an end date for the CJRS?
The CJRS will be closed to new entrants from 30 June 2020. This means that the last date on which an employee could be first furloughed was 10 June 2020 (subject to statutory parental leave exceptions – see below). Furthermore, a claim must have been made to the CJRS, for an employee, for the period up to 30 June 2020, on or before 31 July 2020.
The Chancellor has announced that the CJRS will come to an end completely on 31 October 2020.
5. Has the employer eligibility criteria changed in order to make a claim under the updated CJRS?
The eligibility criteria has changed slightly. In light of the closure of the CJRS to new entrants from 30 June 2020, only employers who have made successful CJRS claims for employees prior to this date will be eligible to make further applications through the CJRS in respect of these employees, after 30 June 2020. In effect, if employees have previously been successfully furloughed under the CJRS scheme before 30 June 2020, they can continue to be furloughed or furloughed again under the updated CJRS scheme.
The scheme still applies to businesses, charities and public authorities, although the Government expects that it will not be used by many public sector organisations, as the majority of employees will be continuing to provide essential public services.
Where employers receive public funding for staff costs, and that funding is continuing, the Government expects employers to use that funding to continue to pay employees as usual. Where funding is not continuing, it may be appropriate to furlough employees.
6. Has the employee eligibility changed under the updated CJRS?
Again, the answer to this is yes, slightly.
As before, furloughed employees must have been on an employer’s PAYE payroll and notified to HMRC on an RTI submission on or before 19 March 2020. This means an RTI submission notifying payment in respect of that employee to HMRC must have been made on or before 19 March 2020. The scheme, therefore, does not apply to any employees who joined after this date.
Furthermore, the scheme still covers:
- Full-time employees
- Part-time employees
- Employees on fixed-term contracts
- Employees on flexible or zero-hour contracts
- Agency workers
- Apprentices
- Company Directors (Salaried)
- Salaried Members of LLPs
- Foreign nationals
- Employees of a previous business transferred after 28 February 2020 if either TUPE of PAYE business successful rules apply to the change in ownership
HOWEVER – an additional eligibility criteria has now been added. From 1 July 2020, only employees who have previously been furloughed for at least three consecutive weeks between 1 March 2020 and 30 June 2020, and for whom a claim was made to the CJRS on or before 31 July 2020, can be furloughed. There are, again, two exceptions to this which relates to employees returning from Statutory Parental Leave on or after 10 June 2020 (see below) and armed forces reservist employees who may also return to work after this date.
7. Is there a maximum number of claims an employer can make to the CJRS under the updated scheme?
Yes. The number of employees an employer can claim for in any single claim period cannot exceed the maximum number of employees that they have claimed for in any previous claim period before 30 June 2020.
For example, if an employer made a claim for 30 employees in March, 50 employees in April and 20 employees in May, the maximum number of employees it can claim for in any single claim period will be 50 employees.
There is one exception to the maximum number of claims an employer can make in any one claim period, which is in relation to employees on Statutory Parental Leave. These employees do not count towards the maximum number of employees that can be claimed for. See below for more details.
8. What are the requirements of furloughing an employee?
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.
9. Is there a minimum furlough period under the updated scheme?
Under the updated scheme, from 1 July 2020, the minimum furlough period of 21 calendar days will no longer apply. Flexible furlough agreements can last any length of time. The exception to this rule is where a previously furloughed employee starts a new furlough period before 1 July 2020, in which case the employee would be expected to remain furloughed for a minimum period of 21 calendar days, even if they remain furloughed beyond 1 July.
Although minimum furlough periods will no longer apply, 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.
10. What work can be given to employees during a period of flexible furlough?
The new HMRC guidance published on 12 June 2020 confirms that with agreement, from 1 July 2020, employees will be entitled to move between working flexibly for their employer and remaining on furlough.
The guidance is however 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.
11. Does the employee have to be at risk of redundancy to be covered by the scheme?
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.
12. How do we calculate an employee’s wages?
If you decide to keep employees on furlough full-time, the calculation to be used for determining an employees wages for the purpose of making a claim under the updated CJRS is unchanged from that used in the original scheme, albeit a reducing percentage of an employee’s wages can be claimed from CJRS from 1 August onwards (see question 3 above).
If you decide bring your employees back using flexible furlough, you will be required to pay employees in full for any hours they work and then pay furlough pay for those hours that they are not working.
Unfortunately, calculating what should be paid to employees during a period of flexible furlough is not as straight forward as it may seem. We would therefore recommend that you consult the HMRC worked examples directly with regards calculating pay. These worked examples can be found at the following link:
13. How will normal salary be calculated for those with variable pay, such as zero-hours workers?
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:
- The same month’s earnings from the previous year; and
- The average monthly earnings from the 2019/2020 tax year;
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.
14. How does maternity leave (and other statutory parental leave) affect furlough?
As detailed earlier in this guidance, as a general rule, the last date on which an employee could first be placed on furlough was 10 June 2020.
However, this last date to furlough is not applicable to employees who are on or had started any form of Statutory Parental leave on or before 10 June 2020 which has also ended after 10 June 2020, as long as the employer has previously furloughed other employees.
Statutory Parental Leave includes:
- Maternity Leave;
- Paternity Leave;
- Shared Parental Leave;
- Adoption Leave; and
- Parental Bereavement Leave.
As such, any employees returning from Statutory Parental leave after 10 June 2020 may still be furloughed for the first time as long as the scheme is still in operation.
15. How does maternity leave and other statutory parental leave affect furlough payments?
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.
The HMRC guidance updated on 30 April 2020 confirms that employers may need to calculate the average weekly earnings of employees differently for the purposes of statutory family pay (such as statutory maternity pay and statutory adoption pay) if the employee was furloughed and then started their family-related leave on or after 25 April 2020.
16. How does sickness absence affect furlough payments?
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.
17. How do we calculate the Employer National Insurance and Employer Pension Contributions we can claim after 1 July 2020?
If you continue to furlough employees full-time between 1 July 2020 and 1 August 2020, you will continue to calculate the NICs and Pension Contributions you claim in the same way as under the original scheme. A working example of such a calculation can be found at the following link:
If you agree a flexible furlough agreement with employees between 1 July 2020 and 1 August 2020, your calculation of NICs and Pension Contribution claims will alter in light of the fact that employees will be working part of the time and will be furloughed for part of the time. Again, a working example of how to calculate NICs and Pension contributions in this period can be found at the following link:
18. Can an employee ask to be placed on a flexible furlough agreement?
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.
19. Can we extend the period of flexible furlough that employees have agreed to?
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), provided that they have completed at least three weeks of furlough prior to 30 June.
20. At what rate would benefits (such as holiday entitlement) accrue during furlough?
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)”.
21. How do I select which employees should be flexibly furloughed?
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.
22. What happens if an employee refuses to be flexibly furloughed?
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.
23. What happens to annual leave that has been booked during a period of furlough or flexible furlough? What about bank holidays that fall during furlough periods?
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.
24. Do employers still have to meet the National Living Wage/National Minimum Wage if the employee is furloughed?
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.
25. Can an employee who is furloughed by one employer take a new job with another employer while furloughed?
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.
26. Can I make employees on furlough redundant?
Yes. The Third Treasury Direction includes some additional wording that was not present in the first two directions. This states: “Integral to the purpose of the CJRS is that the amounts paid to an employer…[under the CJRS] are used by the employer to continue the employment of employees in respect of whom the CJRS claim is made whose employment activities have been adversely affected by the coronavirus and coronavirus diseases or the measures taken to prevent or limit its further transmission”.
This additional wording has led to understandable concern that this suggests that a claim should only be made where the employee’s employment will be continuing, and that therefore claims should not be made in relation to those who are working under notice, or who are proposed to be redundant. HMRC has confirmed informally that employers may continue to use the scheme for employees serving a statutory notice period and the HMRC guidance was amended on 10 July 2020 to reflect this.
This guidance states that “You can continue to claim for a furloughed employee who is serving a statutory notice period”. The reference to “statutory notice” has also caused concern that employers may not be able to use grants under the CJRS in respect of any contractual notice period. Again, HMRC has confirmed on an informal basis to several employment law practitioners that this is not correct and that employers should be able to use CJRS grants during contractual notice periods. Hopefully the HMRC guidance will be updated to make this clear in due course.
27. What if I have made a mistake in how much I have claimed from the CJRS?
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.
28. What is the Job Retention Bonus?
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. Employees must receive on average £520 per month from November 2020 to 31 January 2021 for employers to be eligible for the bonus. It is unlikely that the bonus will impact on employers’ decisions to effect redundancies in the intervening period given the size of the bonus, but it is likely to come as a welcome reward for employers who are anticipating being able to continue employment into the new year.
29. Is there any other help for employers available?
The Chancellor has also announced two other schemes aimed at helping employers:
- Kickstart Scheme – this Scheme is aimed at those aged 16-24 who are in receipt of Universal Credit. The Government will pay the wages (at the applicable National Minimum Wage rate) of such workers for six months whilst they complete a “job placement”. The Scheme is expected to open in August with placements to start in the autumn.
- Apprenticeships – new apprenticeships are to be supported by bonuses, with employers entitled to a payment of £2,000 for each new apprentice under the age of 25 and £1,500 for each new apprentice aged 25 or over.
