FAQ's

Frequently Asked Questions

Fully updated and accurate as of the 14th May  2020

Government Guidance on the Job Retention Scheme

https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme

 Disclaimer: These FAQ's should not be relied upon as legal advice as the landscape is changing on a daily basis. The Treasury has now issues a Directive which has a legal basis. This trumps previous guidance issued by the Government and the FAQ's have been updated taking into account. We would recommend you check with us prior to making any decisions based on the content of this guide along as this is only intended to be a guide and not advice. 

Summary

The Coronavirus Job Retention Scheme is a temporary scheme open to all UK employers.

In its current for, employers can use the HMRC portal which is now live to claim for 80% of furloughed employees' (employees on a leave of absence) usual monthly wage costs, up to £2,500 a month, plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that wage.

It has been announced by the Chancellor on the 12th May 2020 that the Scheme will continue in its current form until the end of July 2020. Hs has confirmed that the Scheme will remain in place until October however there will be changes to the Scheme from July - October. 

From July 2020 it is expected that the 80% rate of contribution may drop to 60% and that employers will have to share the cost with HMRC. Further details are to be announced by the end of May.

The Chancellor has also confirmed that, whilst at present, you cannot do any work whilst on furlough, he will look to vary this to allow part time working from July onwards.

Key Points:

• Eligible employees must have been on your payroll on the 19th March 2020.
• Employees must be furloughed for a minimum of three weeks
• Employees who are shielding in line with public health guidance (i.e. have been deemed very high risk and have received notification from the Govt that they fall into this category can be placed on furlough but those self-isolating will only be entitled to furlough once the period of self-isolation has completed.
• The grant will cover the lower of 80% of usual salary or £2,50 plus National Insurance and minimum automatic enrolment employer pension contributions the NI / pension contributions will be at the 80% rate;
• Employees can take annual leave during furlough but this must be paid at 100% rate;
• Employers can insist on employees taking annual leave during furlough as long as they give them notice which is double the length of the period of annual  leave they are looking to take.

How do you set up an employee to be on furlough?

• You require the agreement of the employee as you are essentially varying their employment status.
• It has now been updated by the Government to confirm that this agreement must be in writing
• It was clarified on the 23rd April 2020 by HMRC that despite the wording in the Directive conflicting with the guidance given previously, that the employer does not need to have the employee's written consent to be furloughed however we would recommend that you do this in the event that HMRC does an audit on your business.
• This written notification should be kept on record for five years
• The employer should therefore write to the employee asking them to agree to be on furlough. We have a template letter which we recommend you use. This letter also allows for the employee to return to employment once the period of furlough has bended or if the employer required them back because work becomes available. 
• You should ask the employee to sign this and return it however given the circumstances surrounding practical limitations because of lockdown then we suggest you ask the employee to respond to the email with the Agreement and to confirm, in writing, that they agree to all of its terms and date this or use a digital signature if possible. 
• Claims should be started from the date that the employee finishes work and starts furlough, not when the decision is made, or when they are written to confirming their furloughed status .

·C Can you rotate employees on furlough?

• This has now been confirmed by the Government that yes you can. But only for up to 3 weeks at a time. For example, you can designate one employee to be furloughed for 3 weeks then designate another employee to be furloughed for a further 3 weeks and rotate them. However, each claim will need to be made separately in respect of each "block" of furlough leave (to a minimum of 3 weeks each time but a maximum of 3 months). You cannot have one employee work half the week and another employee with the half of the week.

Can the employee start a new job when on furlough from their existing job?

• Yes, this has been clarified by the Government that they can start a new job when on furlough (meaning they might end up earning 80% of the old salary and 100% of a new one), This was not prohibited in the earlier guidancem but the new guidance expressly allows it. THe guidance does not say it has to be allowed under the employment contract, but presumably the old employer can waive that.
• Check the employment contract to see if there is a clause which required employees to obtain consent from the employer to work for another company as the employer may be able to refuse consent in some circumstances.
• If your employee has more than one employer they can be furloughed for each job. Each job is seperate, and the cap applies to each employer individually.

Annual Leave whilst on Furlough

·       https://www.gov.uk/guidance/holiday-entitlement-and-pay-during-coronavirus-covid-19

Do you accrue annual leave when on furlough?

Yes This has now been confirmed in separate guidance issued by the Government on taking annual leave during furlough.

• Recent amendments by the Government also extend the Working Times Regulations (Amendment 2020) to allow employees to carry over 20 days paid annual leave for a further 2 year period if it was not reasonably practicable for them to use it in the same holiday year. Please note, this only applied to the first 20 days on annual leave. The remaining 8 days under UK law cannot be carried over.

Can you be on annual leave and furlough at the same time?

•           There is nothing in the legislation regarding annual leave and furlough however there has been updated guidance issued on the 14th May 2020 confirming that you can take annual leave whilst on furlough however that payment must be made at the 100% salary rate and not the 80% rate. This also effectively means that they can be on annual leave and furlough at the same time meaning that the employer can reclaim 80% of the wages during the annual leave and only top up the remaining 20% whilst the employee is on annual leave. 
• Please note, the employer should also give employees twice as much notice as the length of your annual leave to take it and this should be paid at the employee's full salary rate and not the 80%. For example, if the period of annual leave is 2 weeks then the employer will be required to give 4 weeks notice to the employee that they wish for them to take annual leave. 

My employee is refusing to take annual leave as she says she cannot enjoy it as proper rest time? Can I insist that she takes it?

•          Yes. The employer has the right to insist when the employee take annual leave as long as they give them notice which is double the length of the annual leave period. 
• The only exception to this is where an employee is sick or could be displaying Covid19 symptoms in which case you should not require them to take annual leave during this period of if they become sick whilst taking annual leave then this should be given back to them to take at a later date.

What is we have employees starting after the 28th February are currently employed?

•          You can only claim for furloughed employees that were on your PAYE payroll on or before the 19th March 2020 and which were notified to HMRC on an RTI submission on or before the 19th March 2020. This means an RTI submission notifying payment is respect of that employee to HMRC must have been made on or before 19th March 2020. Employees that were employed as of the 28th February 2020 and on payroll (I.e. notified to HMRC on an RTI submission on or before 28th February 2020) and were made redundant or stopped working for the employer after that and prior to 19th March 2020, can also qualify for the scheme if the employer re-employs them and puts them on furlough.

  2 new employees are due to start soon and the work they were going to be doing is no longer available to them, what can we do?

•       If there is no work for them to be done and the start date is more than one week away then we would suggest withdrawing the offer of employment and give them notice under the contract (if no notice clause then the statutory minimum would apply of one week at full pay). There still could potentially be a breach of contract claim by doing this but any losses / damages suffered by the employee would likely to be minimal.
• If the employee is due to start within the next week then we would reccomed you have an informal discussion with them to see if they would be willign to agree to a later start date. If they do not agree, then you could pay them the notice as above by may face a higher risk of breach of contract claim as there is less time for them to get an alternative job. This risk may be more attractive than the alternative option which would be to let them start adn then have to consider redundancy or laying them off as unpaid leave or short time working. 

What does the £2,500 maximum payment cover? What do we need to pay?

• The employer will receive a grant from HMRC to cover the lower of 80% of an employee's regular wage or £2,500 per month, plus the associated Employer National Insurance  contributions and minimum automatic enrolment employer pension contributions on that subsidised wage. Fees, commission and bonuses should not be included.
• At a minimum, employers must pay their employee the lower of 80% of their regular wage of £2,500 per month. An employer can also choose to top up an employee's salary beyond this but is not obliged to under this scheme.
• It has been clarified by the Government that an employer can reclaim 80% of compulsory (presumable meaning contractual) commission back from HMRC as well as basic salary. This would likely apply to the sales sector such as car salesmen and estate agents but may also apply to hairdressers if they were earning commission which was part of their contractual entitlement to pay. This can only be referring to the commission from past sales or commission as the furloughed employees cannot be completing new sales or earning commission when on furlough.  
• It does not however include non- monetary benefits such as the value of health insurance or a car.
• Employers can also reclaim 80% of fees from HMRC (although there is no clarification on what this actually means)

If someone is self - isolating or on sick leave

•         If your employee is on sick leave or self-isolating as a result of Coronavirus, they'll be able to get Statutory Sick Pay, subject to other eligibility conditions applying. The Coronavirus Job Retention Scheme is not intended for short - term absences from work due to sickness, and there is a 3 week minimum furlough period. 
• Short term illness / self - isolation should not be a consideration in deciding whether to furlough an employee. If. however, employers want to furlough employees for business reasons and they are currently off sick, they are eligible to do so, as with other employees. In these cases, the employee should no longer receive sick pay and would be classified as a furloughed employee.
• Employers are also entitled to furlough employees who are being shielded or off on long-term sick leave. It is up to employers to decide whether to furlough these employees. You can claim back from both the Coronavirus Job Retention Scheme and the SSP rebate scheme for the same employee but not for the same period of time. 
• When an employee is on furlough, you can only reclaim expenditure through the Coronavirus Job Retention Scheme, and not the SSP rebate scheme. If a non- furloughed employee becomes ill, needs to self-isolate or be shielded, then you might qualify for the SSP rebate scheme, enabling you to claim up to two weeks of SSP per employee. 

If your employee becomes sick while furloughed

• Furloughed employee retain their statutory rights, including there right to Statutory Sick Pay. This means that furloughed employees who become ill must be paid at least Statutory Sick Pay. It is up to employers to decide whether to move there employees onto Statutory Sick Pay or to keep them on furlough, at their furloughed rate.
• If a furloughed employee who becomes sick is moved onto SSP, employers can no longer claim for the furloughed salary. Employers are required to pay SSP themselves, although may qualify for a rebate for up to 2 weeks of SSP. If employers keep the sick furloughed employee on the furloughed rate, they remain eligible to clam for these costs through the furlough scheme.

Shielding Employees

•            Employees who are unable to work because they are shielding in line with public health guidance (or need to stay home with someone who is shielding) can be furloughed.

  Can directors be placed on furlough?

• There are two types of Directors:-
  • Non - exec director - Will not be considered employee so cannot be placed on furlough as they don't fall into the "employee" category
  • Exec director will usually be classes as employees provided they have a contract of employee and are paid through the PAYE system. If they draw additional dividends then they will not be entitled to this an only the 80% basic pay.
• It has now been clarified by the Government that Company directors can be furloughed. 

Can an employer carry out redundancy whilst on furloughed?

• Yes, however extra care should be taken if there is the option to furlough the employee and the downturn in work is directly related to COVID-19. Consider whether, after this period (the next 12 weeks) if the work is likely to pick up again before making the decision to begin the redundancy process. We would recommend you take specific advice on this due to the high risk nature of any potential claims being brought against you.

What about an employee who was made redundant before the 28th February or after?

• They can be re-engaged and can be designated as furloughed however this is at the employer's discretion.
• We would advise that the employer exercises caution and take each employee on a case by case basis as re-hiring employees will then give the same employment rights they had previously and may cause difficulties in future when work becomes available again.

Can redundancy notice run alongside furlough leave?

•        Yes however the employer would have to pay the full 10% notice pay and not 80% however (if it is the statutory amount)
• If the contract allows for a notice period that is above the statutory amount then there may be scope to make payment at the 80% rate however please seek our advice if this applies to you. 

What if the business has been TUPE'd over and the employees of the newly TUPE'd company were not on the payroll as at the 28th February?

• There was a previous loophole which meant that they would not be covered under the scheme however HMRC have now confirmed that they can be put on furlough (confirmed the 9th April 2020)
• "A new employer is eligible to claim under the CJRS in respect of the employees of a previous business transferred after the 28th February 2020 if with the TUPE or PAYE business succession rules apply to the change in ownership"

What if my employee has went back home and lives out side the UK?

•         As long as they were registered with HMRC and on the employers PAYE system then they are entitled to be furloughed. 
• Additionally, HMRC have also confirmed that those with certain work visas will not be regarded as breaching their visa conditions if they receive funds under the furlough scheme. 
• "Grants under the scheme are not counted as 'access to public funds' and you can furlough employees on all categories of visa"

How would furlough leave apply to agency workers and fixed term?

•         This has now been clarified by the updated guidance which states:

• This scheme is only for employees on agency contracts who are note working
• Those on fixed - term contracts would not normally be entitled to furlough if the end date of the contract is during this period however you can agree to extend this date with the employee should you wish. There is no guarantee you would be able to reclaim from HMRC in this event however so tread very carefully and seek specific advice if you have employees who fall into this category.

How do you work out how to pay employees whose hours vary?

•  If the employee has been employed (or engaged by an employment business) for a full twelve months prior to the claim, you can claim for the higher or either:
  • The same month's earning from the previous year (i.e. March 2019)
  • Average monthly earnings from the 2019 - 2020 tax year
• If the employee has been employed for less than a year, you can claim for an average of their monthly earnings since they started work.
• If the employee only started in February 2020, use a pro-rata for their earnings so far to claim
• once you've worked out how much of an employee's salary you can claim for, you must then work out the amount of Employer National Insurance Contributions and minimum automatic enrolment employer pension contributions you are entitled to claim.

Returning from statutory leave - how is pay for furlough calculated if returning from statutory leave such as maternity leave

Can an employee on maternity leave come back early and get furloughed?

• This has now been updated by guidance on the 1st May 2020 which states that if an employee gets Maternity Allowance whilst they are on maternity leave then they should not get furlough pay at the same time. 
• If they gave agreed to furlough, they should contact the Job Centre as soon as possible to stop their MA payments. 
• If they agree to be put on furlough and end their maternity leave early, they will need to give you at least 8 weeks' notice and they will not be eligible for furlough pay until the end of the 8 weeks.

Can an employee do work on furlough?

• At present no, the employee should not be doing any work but they can do some training as long as it does not generate any business for the company. If they are training then they should also be paid at NMW rates for the period that are doing the training (this means if furloughed and the 80% drops below NMW then it will need to be topped up to meet NMW for the specific period of training). We recommend you seek specialist advice on this point.
• An employer can still keep in touch with the employee on a regular basis but they should not be carrying our any work - related activities i.e. one to ones and performance reviews should not be carried out during this period. 
• Any employer in breach of this may by subjected to criminal prosecution for fraud under the scheme and HMRC have set up a hotline for employees who are in this situation and they can call to report the employer.
• HMRC have also stated that employees cannot work for organisations that are linked to the employer., as well as not working for the employer, when on furlough or even volunteer for the employer doing the same role on a voluntary basis. 
• A furloughed employee can take park in volunteer work, if it does not provide services to or generate revenue for, or on behalf of your organisation or a linked or associated organisation. Your organisation can agree to find furloughed employees new work or volunteering opportunities whilst on furlough if this is in line with public health guidance but they are not obliged to do so.
• It is expected that in or around July 2020, the rules on the scheme will change and that employees will be able to work part time whilst on furlough. However we are awaiting further details which should be expected by the end of May.

What is Emergency Volunteer Leave ("EVL")?

• An employee can sign up to EVL but they must get a certificate to do so and they can only do it if the business employs more than 10 staff.
• There is other criteria set out in legislation and we would recommend you seek advice on this if you are in this situation
• EVL is a form of unpaid leave and all other employment rights apply during a period of EVL.

What about apprentices?

• The Government have provided guidance specifically for apprentices here:
  
  • https://www.gov.uk/government/publications/coronavirus-covid-19-apprenticeship-programme-response/coronavirus-covid-19-guidance-for-apprentices-employers-training-providers-end-point-assessment-organisations-and-external-quality-assurance-pro

Can I be furloughed to look after my children?

• Under normal circumstances, if an employee requests time off to look after children then this can be dealt with under dependents leave which is unpaid. 
• However, the government have now issued updated advice to say that employees who are unable to work because they have caring responsibilities resulting from coronavirus (COVID-19) can be furloughed. For, example, employees that need to look after children can be furloughed.
• This should be given careful consideration if the employee is still required to work I.e. in a care home as there is a concern that furloughing everyone who fall into these categories may then not leave enough staff available to cover work particularly as some may end up having to self-isolate if they develop symptoms.
• Remember, just because the guidance says that it can take place, this does not mean that it necessarily should an you will need to consider each case on a case by case basis. 

How do I bring someone back off furlough leave?

•          There is no set legal process to do this however we would recommend you write to the employee informing them that they will be required to return to work on their usual terms and conditions, Contact us for a style letter.
• There is no minimum notice period required to bring back employees from furlough as being on furlough means the employees have to be ready and available for work immediately. 
• However, we would suggest giving employees' reasonable notice in the event that have caring responsibilities or other matters that need to be sorted prior to them returning to work. 

My employee does not wish to return to work. What can I do?

• This will need to be considered on an individual case by case basis.
• New government guidance has been released which gives advice and information to businesses over 8 different sectors setting out how to make the workplace "Covid safe"
• BEIS have also published guidance on making the workplace safe in light of Covid 19
  • https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19 
• If the employee does not feel it is safe for them to return to work then have a proper conversation with them to find out why they feel this way. 
• Make sure that you have carried out all necessary risk assessments prior to re-opening the business, we would recommend seeking additional health and safety risk assessments if you work in a higher risk sector; ensure that practices including social distancing and hand sanitising stations can be implemented in the workplace safetly

• If you can demonstrate that the workplace is safe to return, try and alleviate the employee's concerns by discussing flexible working arrangements with them and taking account of their personal circumstances.
• If the employee is concerned about their own health and they have underlying health conditions, then please seek specialist advice from us in order to minimise the risk of a discrimination claim.