Fully updated and accurate as of the 1st November 2020
Update re England lockdown and extension to furlough
The Prime Minister announced on Saturday 31 October that non-essential businesses in England will have to close from Thursday 5 November until Wednesday 2 December as part of a national lockdown. As part of this update, it was announced that the existing furlough scheme (CJRS) which was due to end on this date, was being extended until 30 November. They have also postponed the Job Support Scheme (JSS)which was due to begin on 1 November. This will now begin on 1 December. Limited details have only been announced but it is expected that further guidance relating to how this will operate will be released imminently.
In the meantime, our advice is that if you were planning on implementing the new JSS on 1 November, that this will be replaced with CJRS. For the hours that the employee does not work this will be treated in accordance with the rules of the Flexible Furlough Scheme. This means that the employee will be paid 80% of their usual wages for the hours not worked. The employer will only contribute towards the cost of national insurance and pension contributions. This will be in place for the whole month of November. This applies to the whole of the UK as these schemes are operated by the UK Government. If the business has to close due to any forced lockdown (by its Government in all 4 countries in the UK) then you will be able to claim full furlough for employees who are unable to work.
We have prepared a draft updated Agreement you can send to your staff which covers this change. (if you would like this please contact your representative). We have kept the detail as general as possible given the last minute announcement and the fact that further details are yet to be released by the Government. If you are required to send anything out to your employees then we will update you accordingly. Please see the following details regarding the extension of the furlough scheme that has been released so far (as at 1 November 2020):-
· The extension to furlough will continue to operate with businesses being paid up front to cover wage costs although there will be a short period where businesses will be paid in arrears while the Treasury changes the legal terms of the scheme and updates the system.
· Flexible furlough will continue and therefore employers can bring employees back to work on shorter working hours if needed.
· The financial support will revert back to August levels with the government paying the entire 80% of wage costs (subject to the £2500 maximum) and employers paying only employer NICs and pension contributions.
· There are significant extensions to eligibility under the scheme. Neither the employee or the employer needs to have made a claim for furlough previously.
· The employee must have been on the payroll as at 23.59 on 30 October (meaning they must have been included on an RTI filed on or before that date).
· The general rules of the scheme in terms of calculating normal working hours, the 7 day minimum claim etc remain unchanged.
· The Government will confirm shortly when claims can first be made under the extended scheme but there will be no gap in eligibility for support.
The Government have not confirmed that shielding will be in place again however they have stated that those who are clinically extremely vulnerable should take extra precautions. The Government have stated the following:-
“If you cannot work from home, you are advised not to go to work and may be eligible for Statutory Sick Pay (SSP) or Employment Support Allowance (ESA). You are encouraged to stay at home as much as possible, but are encouraged to go outside for exercise. The full new guidance will be published on Monday 2 November and the Government will write to everybody who is clinically extremely vulnerable to set out detailed advice while the new restrictions are in place.”
Therefore, it may be the case that those who are unable to go to work due to being clinically extremely vulnerable may be entitled to SSP. Further details are to be announced by the Government.
Updated 30th October 2020
What will the scheme cover?
Employees will need to work a minimum of 20% of their usual working hours and will be paid as normal for the work they actually carry out.
The employee will receive 66.67% of their normal pay for the hours they do not work which will be made up as follows:
· the employer pays 5% of normal pay for hours not worked (subject to a cap of £125 per month)
· the government will pay 61.67% of normal pay for hours not worked (subject to a cap of £1541.75 per month)
The employer can choose to top up wage payments if they wish.
The employer will be responsible for Employer NICs and pension contributions.
This is a more generous provision than the current furlough scheme under which employers currently have to pay a 20% contribution to wages (although there is no requirement for employees to work a minimum number of hours under that scheme).
This can be used by employers who have been legally required to close their premises as a direct result of coronavirus restrictions set by one or more of the four governments of the UK. This includes premises restricted to delivery or take- away only services and those restricted to provision of food and/ or drink outdoors.
Claims can only be made for the period during which the business is required to close and businesses required to close by local public health authorities as a result of specific workplace outbreaks are specifically excluded from the scheme.
Employees will receive 66.67% of their normal pay which will be fully funded by the government, subject to a cap of £2,083.33 per month. Again, this can be topped up by the employer if they wish.
When does the scheme start?
The scheme starts on 1 November 2020 and will run for 6 months, ending on 30 April 2021. The government will review the terms of the scheme in January.
When and how can you make a claim?
The policy paper offers little information on this but says that full guidance on this and other aspects of the scheme will be available next week. It does clarify that claims can be made from 8 December 2020, covering wages for pay periods ending and paid in November. Claims must be made in arrears i.e. the employer will be claiming reimbursement of wages already paid to the employee.
Agents who are authorised to do PAYE online for employers will be able to claim on their behalf.
Meaning of employee’
‘Employee’ for the purposes of the scheme includes anyone who is treated as an employee for tax purposes. This will therefore cover agency workers and other workers.
Employees must have been employed on 23 September and an RTI Full Payment Submission notifying payment in respect of that employee must have been made to HMRC at some point from 6 April 2019 up to 11:59pm on 23 September 2020. If an employee was employed on 23 September, subsequently dismissed and then rehired, the employer can claim for them under the scheme (which will cover cases where employers have reconsidered redundancies in light of the more generous nature of the scheme).
An employer can claim for different employees under the JJS Open and JSS Closed for the same period but can’t claim for the same employee under both schemes at the same time. For example, if a waiter is unable to work because a restaurant has been forced by COVID restrictions to operate only a take-away service, his lost wages can be claimed under JSS Closed and colleagues who are working reduced hours in the take-away operation, can be claimed for under JSS Open.
The scheme is potentially open to all employers who have enrolled for PAYE online and have a UK, Channel Island or Isle of Man bank account.
Employers in receipt of public funds
The policy paper states that where employers have staff costs which are fully funded by public funds ( even if they are not in the public sector) they should use that money to continue paying staff and not access the scheme.
If they are only partially funded by public funds, they can access the scheme “for the proportion of their revenue disrupted due to coronavirus”. The paper makes it clear that in these situations, employers should contact their “sponsor department or respective administration” for further guidance.
Both the JSS Open and JSS Closed require the employer to enter into a written agreement with the employee to enter into this temporary working arrangement. This agreement must cover at least 7 consecutive days. A copy of the agreement must be retained for at least 5 years and should be made available to HMRC upon request. Unhelpfully the paper states that HMRC will publish further guidance on what to include in the agreement by the end of October which does not give employers a lot of time to get agreements signed in readiness for the start of the scheme on 1 November.
The paper warns that when determining who should be offered reduced hours (or who is told to cease work in the case of JSS Closed claims), the employer must comply with equality and discrimination laws in the usual way.
Voluntary training is permitted in non-working hours (remember that additional monies will need to be paid if the JSS grant does not cover the NMW entitlement for time spent training).
Employees can do training at the request of their employer in working hours while being claimed for under the Job Support Scheme but this will be treated as working hours ( for which no claim can be made). These hours should be paid at their full rate of pay and will count towards the 20% of their usual hours.
Statutory family leave
New regulations will be introduced shortly to avoid employees losing out on their entitlement to parental pay (covering maternity allowance, statutory maternity/, paternity, shared parental, adoption and parental bereavement pay) as a result of being put on the scheme.
JSS Open – specific eligibility requirements for employers and employees
The scheme is designed to support employers facing decreased demand and employees claimed for must be working at least 20% of their normal working hours.
Small and medium sized businesses do not need to demonstrate the adverse impact of coronavirus on their business. However, large employers ( being defined as employers with 250 or more employees as at 23 September 2020) are required to undertake a Financial Impact Test demonstrating that their turnover has “remained equal or fallen” compared to the previous year, to show they have been adversely affected by the pandemic. This test only needs to be taken once, before their first claim under the scheme.
The policy paper gives detailed guidance on how this can be demonstrated by referencing VAT returns. Any charity with 250 or more employees registered with a UK charity regulator ( or exempt from such registration) will not be required to carry out this test. Further guidance will be given next week for other large businesses who are not VAT registered.
If a large employer is part of a VAT group, they should use the turnover figures for the VAT group for this calculation.
JSS Closed – specific eligibility requirements for employers and employees
Employers can claim the JSS Closed grant for employees:
· whose primary work place is at the premises that have been legally required to close as a direct result of coronavirus restrictions set by one or more of the four governments of the UK
· that the employer has instructed to and who cease work for a minimum period of at least 7 consecutive calendar days
Conditions of claiming under the scheme (applies to both Open and Closed unless indicated otherwise)
· Employers can’t claim for an employee who is “made redundant or is serving a contractual or statutory notice period during the claim period”.
· Although not a contractual or legal requirement of the scheme, the government expects that large employers (250 or more employees) will not make capital distributions whilst using the scheme, including paying dividends etc and the policy paper encourages large employers to “reflect on their responsibilities and that taxpayers should be able to rely on public money only being claimed where it is clearly needed.”
· Employers can’t recover NIC or pension contributions which remain payable by the employer. They must also deduct and pay to HMRC income tax and employee NICs on the full amount that is paid to the employee. Employers must report payments via a Full Payment Submission (FPS) to HMRC on or before the pay date in the usual way. Student loan deductions and the Apprenticeship Levy must still be paid.
· Employers must have paid the full amount claimed to the employee before each claim is made. They are not permitted to enter into any agreement with the employee which would reduce wages below the amount claimed. Where an employee had authorised their employer to make deductions from their net salary, these deductions can continue while the employee is working reduced hours provided that these deductions are not administration charges, fees or other costs in connection with the employment. Employees will be able to check if their employer has made a JSS claim relating to them.
· Employers can’t make any claim for wages for the hours the employee was actually working (the policy paper makes no reference to holidays but hopefully the guidance next week will clarify this).
In the event that a claim is found to be fraudulent, in addition to repaying the full amount, penalties of up to 100% of the amount overclaimed may be applied. HMRC will consider publishing the details of employers who were charged a penalty because of deliberately incorrect claims.
HMRC intends to publish a list of all employers who have used the scheme and is encouraging employees to report abuses of the scheme.
Interaction between the JSS and other schemes
Employers can claim the Job Retention Bonus for employees covered by the JSS scheme and grants paid can be included in calculating the Lower Earnings Limit of the Bonus scheme.
If an employee’s pay period cuts across both the furlough scheme and the JSS, the amounts claimed from each scheme should be calculated separately in accordance with the relevant guidance which will take into account the number of days that fall within each of the scheme’s timelines. Care should be taken that no amount of gross pay should be included in more than one scheme.
What is the employee’s reference salary?
This will be made up of payments the employer is obliged to make, including:
· regular wages
· non-discretionary payments for hours worked, including overtime
· non-discretionary fees
· non-discretionary commission payments
· piece rate payments
It should not include:
· payments made at the discretion of the employer or a client, where the employer or client was under no contractual obligation to pay, including:
· any tips, including those distributed through troncs
· discretionary bonuses
· discretionary commission payments
· non-cash payments
· non-monetary benefits like benefits in kind (such as a company car) and salary sacrifice schemes (including pension contributions) that reduce an employees’ taxable pay
For employees who are paid a fixed salary, the reference salary will be the greater of:
· the wages payable to the employee in the last pay period ending on or before 23 September 2020
· the wages payable to the employee in the last pay period ending on or before 19 March 2020
For employees whose pay is variable, the reference salary is the greater of:
· the wages earned in the same calendar period in the tax year 2019 to 2020
· the average wages payable in the tax year 2019 to 2020
· the average wages payable from 1 February 2020 (or the employee’s start date if later) until 23 September 2020
What is usual hours?
Employees who work fixed hours
For employees contracted for a fixed number of hours and whose pay does not vary according to the number of hours they work, their usual hours will be the greater of:
· the hours the employee was contracted for at the end of the last full pay period ending on or before 23 September 2020
· the hours that the employee was contracted for at the end of the last full pay period ending on or before 19 March 2020, this may be the same number of hours calculated under the Coronavirus Job Retention scheme
This should include hours paid as annual leave and statutory leave.
Employees who work variable hours
The variable hours calculation applies if either:
· the employee is not contracted to a fixed number of hours
· the employee’s pay depends on the number of hours they work
For employees whose number of hours varies and/or whose pay depends on the number of hours they work, the number of usual hours is calculated based on the higher of:
· the number of hours worked in the same calendar period in the tax year 2019 to 2020
· the average number of hours worked in the tax year 2019 to 2020
· the average number of hours worked from 1 February 2020 (or the employee’s start date if later) until 23 September 2020
This should include hours paid as annual leave and statutory leave.
The paper states that the calculation of usual hours is not and cannot be altered if the employee is expecting to work more or fewer hours than this in the future.
For employees who are part of a flexible work time arrangement, employers should:
· not count as hours worked any hours that the employee worked but was not paid for because they accrued paid time off which they could take later
· count as hours worked any hours that the employee took as paid time off (‘flexi-leave’), which they had accrued by working additional hours at some other time
For employees who are paid per task or per piece of work done whose hours cannot be calculated in this way, hours can be estimated based on the number of ‘pieces’ produced and the average rate of work per hour, as per National Minimum Wage rules.
The policy paper states that further clarification will be given in the full guidance next week but in the meantime it sets out a number of example calculations for ascertaining usual working hours.
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Government Guidance on the 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.
UPDATE: Flexible Furlough Scheme (FFS) 15 June 2020
Further details were announced on 12 June relating to the detail of how the Flexible Furlough Scheme (FFS) will work. There are some changes that were not previously made clear therefore please follow the below guide and disregard our previous advice in relation to the Flexible Furlough Scheme. Please also note, this guide is intended for general advice only and we would ask you to contact us for specific advice if you intend to rely on it.
Changes to the Existing Furlough Scheme
Changes were announced to the existing Furlough Scheme on 29 May 2020 by the Chancellor. These changes are summarised below:-
· 10 June 2020 will be the last day that employers can place “first time” new employees on furlough. This date has now passed. This means no new employees can be placed on any type of furlough including the Flexible Furlough Scheme. The only exception is if they are returning from a period of statutory maternity or paternity leave. These particular employees can be placed on furlough after 10 June.
· From 1 July, 'flexible furlough' is being introduced, meaning employees will be able to work part-time and be furloughed part-time. Businesses will decide how that will work (in terms of the time split).
From 1 August, employers will have to pay employee's national insurance contributions and pension contributions and can no longer reclaim them through the CJRS.
· From 1 September, the government will only reimburse 70% of salary (up to a maximum of £2,190). Employers are required to top-up to 80% (or more, depending on what the employer agreed with the employee).
· From 1 October, the government will only reimburse 60% of salary (up to a maximum of £1,875), and employers will continue having to top up to 80% (or more).
· The furlough scheme will close on 31 October 2020.
· The self-employed grant is being extended, with applications opening in August for a second and final grant. There will be parity with the reducing furlough scheme, paying 70% (not 80%) of average earnings up to £6,75
What do I have to do now?
Update your existing Agreements with those employees already on Furlough Leave that you wish to take advantage of the new Flexible Furlough Scheme (FFS). We have provided a template document that you can use which should be sent to those employees. It is recommended that you have this signed and dated by the employee and returned to you for your records. This is because HMRC have announced that written records should be kept as evidence of the employee’s entitlement under the CJRS. These records should be kept for 6 years in the event of an HMRC audit.
Work out what shifts you will require the employee to work. This needs to be worked out in advance. You must also notify the employee in writing of the days/hours they are expected to work (every time). We also have a separate template letter which you can use. When it comes to making a claim for FFS, you should not claim until you are sure of the exact hours they will work during the claim period because otherwise you may have to pay some of the grant back to HMRC if you make a mistake. Therefore, if you are planning on operating a rota system we would advise you work this out on a monthly basis rather than weekly. We have provided more info below on this scenario.
Preferably, the arrangements should be made longer term i.e. require the employee to work the same 3 days of the week for the FFS period and not on a rota basis. However, the FFS arrangements can be changed more than once but changes have to be confirmed, in writing, each time.
Additionally, this means when you come to making the claim you will have to keep clear records and work out the calculations which are not the most straightforward so it may be easier to keep things simple and have employees work the same shift pattern throughout (if this is possible to minimise the risk of making mistakes).
When making the claim itself – you must make a claim for each employee in one week blocks as a minimum.
The employee does not need to provide a written response each time you are writing to them to confirm their shift.
What can I claim back if an employee is on the Flexible Furlough Scheme?
The payment will work out as follows:-
· On the days that they are not working – the usual rules will apply in that you can claim for the 80% of the employees wages but you do not have to pay the employee any more than this;
· On the days that the employee is working – you will have to pay the employee the full 100% and you will be unable to claim any of that back under the FFS therefore you will not get the 80% back on the days the employee is working for you and you will have to pay this in full.
What has changed from the previous Furlough Scheme?
· Employees can now do some work for you from 1 July 2020 when they are on the Flexible Furlough Scheme (FFS) if you follow the above steps
· The rules relating to payment will also change from 1 August 2020 in terms of employers having to make contributions towards payment (set out above)
· On the days the employee is not doing any work then they will be subject to the same rule as before which means on a furloughed day the employee should do no work for you. This means they should not provide services to you or do anything which will create revenue for the business. The same rules will apply to training and topping up to National Minimum Wage if the rate of pay falls below the NMW rate.
· There is no minimum 3-week period to make a claim – however please see the question below for more info
· The most significant change is that the minimum 3-week period of furlough has been removed (as of 1 July 2020).
· This means that, from 1 July, agreed FFS arrangements can last any amount of time. That said, where a previously furloughed employee (e.g. one that was furloughed back in, say, April and has since returned to work) starts a new furlough period before 1 July, that furlough period must be for a minimum of 3 consecutive weeks and that can end before or after 1 July. For example, a previously furloughed employee can start a new furlough period on 22 June which would need to continue for at least 3 consecutive weeks ending on or after 12 July 2020. It is only after this, that the employee can be flexibly furloughed for any period. You also need to note that although flexible furlough agreements can last any amount of time, the minimum claim you can make is for one week (unless you are claiming for the first few days or the last few days in a month- see point below)
How do you make a claim under FFS? Do you still use the same HMRC Portal?
· Some rules are changing in this respect but yes you still use the same HMRC portal
· After 1 July, claim periods must start and end within the same calendar month and must be at least 7 days unless you are claiming for the first few days or the last few days in a month.
· You can only claim for a period of fewer than 7 days if the period you are claiming for includes either the first or last day of the calendar month, and you have already claimed for the period ending immediately before it.
· The crucial point is that you cannot make claims that cross calendar months.
· Claims for periods ending on or before 30 June 2020 must be made by 31 July 2020. The first time that you can make a claim for days in July is 1 July- you cannot claim for periods in July before this point.
Can I change employees shift patters on Flexible Furlough?
· Ultimately – yes you can however a lot of planning and record keeping will be the key tool here
· Once you have the employee’s written agreement to be placed on the FFS (we have an updated template) then you will need to notify the employee what shifts they are required to work. You can add this into the original template if you wish however we would recommend writing out separately to the employee setting out the shift pattern to keep things separate.
· If the shifts are likely to change i.e. if you operate on a rota system then you will require to write out to the employee in advance of each and every shift change (if the shift pattern differs week to week then you will have to write out to them every single week). A rota system is not sufficient – you will have to specify to the employee what days they are expected to work and set out the furloughed days. This is a requirement of the Scheme and will be needed when making your claim under the Portal (there are strict rules regarding the claim periods which have been explained above).
What about zero hour workers? How do they work under the new FFS if we want them back for some hours?
· They can take advantage of the FFS however the hours they work or are claimed for must not be more than the hours that you are claiming under the existing scheme, for example, if the employee has a variable average of working 20 hours per week then you cannot exceed this amount by having them work 20 hours or more as that would mean they are working the full hours and therefore should be removed from furlough completely.
· This will operate in the same way as the normal scheme in that the hours will be calculated in accordance with the following:-
o For those with variable hours/pay, you take the higher of (a) the average number of hours worked in the tax year 2019 to 2020 or (b) the corresponding calendar period in the tax year 2019 to 2020. If employees are paid per task or piece of work done, you should work out the usual hours for these employees in the same way as for other employees who work variable hours, if possible.
Is there a limit on how many employees can be placed on the FFS?
· Yes. The number of employees you can claim for in any claim period starting from 1 July cannot exceed the maximum number of employees you claimed for under any claim ending by 30 June 2020.
· For example, if you previously submitted 3 claims between 1 March and 30 June 2020, in which the total number of employees furloughed in each respective claim was 30, 20 and 50 employees, then the maximum number of employees that you can furlough in any single claim starting on or after 1 July would be 50.
· However, this may differ where you have an employee returning from statutory parental leave
Can I still have employees on the full furlough scheme if they cannot return to work i.e. if they are shielding?
· Yes, they can continue to remain on furlough until the end of the scheme which is set at 31 October 2020 (bearing in mind the employer has to contribute from August onwards)
How do holidays work on FFS?
· In the same way as they do with the standard furlough scheme, in that holidays continue to accrue
· Holidays can also still be used during the FFS on the days of being “furloughed” and they must be paid at the 100% rate
What happens when the Furlough and Flexible Furlough Scheme ends on 31 October?
· When the CJRS ends on 31 October, you must decide, depending on your circumstances, whether employees will return to their normal hours. If not, it may be necessary to consider reducing their hours or a termination of employment (redundancy).
· Of course, if you need to, you can make redundancies or changes to terms and conditions in advance of 31 October. The updated guidance clarifies that “normal redundancy rules apply to furloughed employees”.
Are there any penalties if I get this wrong?
· You need to be careful that the claims you make are correct.
· HMRC will check claims and payments may be withheld or need to be paid back if the claim is found to be (a) fraudulent or (b) based on incorrect information.
· The Finance Bill is due to be amended (w/c 15 June 2020) to enable HMRC to pursue employers who break the CJRS rules. It is reported that HMRC is expected to focus on those employers who have made employees work despite claiming the 80% furlough payments. HMRC is also expected to look out for employers that did not pass on the full furlough payment to staff or traded profitably and didn’t need the CJRS payments.
· If HMRC suspects that an employer has broken the CJRS rules, it can impose a 100% tax rate on the payments. This means that HMRC can prosecute employers which fail to pay tax demands.
· Once the Finance Bill becomes law next month, any employer that received money from the CJRS will have 30 days to self-declare a mistaken application and pay the money back without penalty.
· If HMRC suspect that an undeclared mistake has been made (after considering filed accounts for the last and current financial years), it will require those suspected to show they did not break the CJRS payment rules. A failure to pay back 100% could result in criminal prosecution.
The law is constantly changing and the position set out in this note may not be current. You should not rely on this note as a comprehensive statement of the law or HR practices. Please contact us if you require specific HR/legal advice on your situation.
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.
Yes This has now been confirmed in separate guidance issued by the Government on taking annual leave during furlough.
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.
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.
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