Covid-19 Update: the Coronavirus Job Retention Scheme (20 April 2020)

An update to this article can be found here: https://www.wjm.co.uk/news/covid-19-further-update-the-coronavirus-job-retention-scheme-2

HMRC has published what is the fifth update on the Guidance to the Scheme and you can find the Employers’ Guide here:-

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

Here is a summary of the changes:-

• The Scheme is being extended until 30 June 2020;

• The Section of the Guidance entitled “Agreeing to Furlough Employees” has been redrafted. The Treasury Direction (which sets out the legal framework for the Scheme) introduced a wholly new and unexpected requirement of Employers to obtain the written agreement of their Employees to cease any work for the business during the period of furlough, in order to be eligible to make a claim under the Scheme. The updated Guidance issued on the same day as the Direction contained no such requirement. The Employers’ Guidance now states “To be eligible for the grant Employers must confirm in writing to their Employee confirming that they have been furloughed. If this is done in a way that is consistent with employment law, that consent is valid for the purposes of claiming the CJRS. There needs to be a written record by the employee does not have to provide a written response.” Prudence would dictate however that employers should endeavour to obtain written agreement from their employees to the furlough conditions;

• Large parts of the Guidance have been taken out and are now found in a separate online Guide on how Employers should work out 80% of their Employees’ wages and how much to claim for National Insurance contributions and pension contributions. That Guide can be found here:-

https://www.gov.uk/guidance/work-out-80-of-your-employees-wages-to-claim-through-the-coronavirus-job-retention-scheme?utm_source=050b4a63-453d-4aed-93ce-67e981006b92&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

• The Guidance also now includes an upfront reminder that HMRC will check claims made through the Scheme and payments will be withheld or required to be repaid if the claim is made on dishonest or inaccurate information or found to be fraudulent. There is a hotline for Employees and the public to contact in cases of suspected fraud.

You can find the updated Employee Guidance here:-
https://www.gov.uk/guidance/check-if-you-could-be-covered-by-the-coronavirus-job-retention-scheme?utm_source=329b6b03-1541-4f42-88f8-5da7ccfb3390&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

The changes to the Employee Guidance as follows:-
• This now contains the inclusion of a new section on annual leave and holiday pay. Interestingly, there is no similar section in the Employers’ Guidance.

Key points are:-

• Employees will continue to accrue leave during furlough, as per their Employment Contract;
• Employees can take holidays whilst on furlough;
• Employees should be paid their normal rate of pay when on holiday and if their pay varies, it should be calculated on the basis of their average pay in the previous 52 weeks, as per the holiday pay provisions in The Working Time Regulations 1998;
• For Bank Holidays, Employers should either top up pay to 100% of usual pay, or allow employees to have time off in lieu;
• he Guidance on holiday pay concludes by stating that “During this unprecedented time, we are keeping the policy on holiday pay during furlough under review”. This indicates a possible change in approach if the “lockdown” period continues (though it is very hard to see how that could be retroactive in effect).

A step by step Guide has been provided for Employers on how to make claims through the Scheme. You can find the Guide here:-
https://www.gov.uk/government/publications/coronavirus-job-retention-scheme-step-by-step-guide-for-employers

Please remember that we at WJM are here to help during this exceptionally difficult time, please don't hesitate to get in touch if there is anything you think we can help with.

For any advice in relation to any particular aspects of the above, please contact a member of the Wright, Johnston & Mackenzie Employment team: Liam Entwistle (lae@wjm.co.uk), Martin Stephen (mss@wjm.co.uk), Andrew Wilson (ajpw@wjm.co.uk) and John Grant (jg@wjm.co.uk)