Reviewed: 31 May 2020

Latest Updates:

On 29 May 2020 the Chancellor announced further details of the extended Scheme. This note has been amended to reflect this announcement. In summary the key changes are:

  • The Scheme will be closed to new entrants on 30 June 2020, meaning an employer will need to place any new employees on furlough by 10 June in order to ensure the employee has been furloughed for the minimum period of 21 days before the Scheme is closed.
  • Flexible furlough will come in with effect from 1 July 2020, meaning employees can work part-time and be furloughed by the same employer. Under the current Scheme an employee cannot carry out any work for the employer that has furloughed them.
  • In August employers will be required to pay the employer NICs and minimum auto enrolment contributions on any furlough pay. In September employers will be expected to contribute 10% of the furlough pay, with the Government paying 70%. In October the employer will contribute 20% and the Government 60%.
  • The Scheme will close at the end of October 2020.

More details about the Chancellor’s statement on 29 May can be found here.

The Government have also published a fact sheet on the changes to the Scheme (and the self-employed income support scheme) here. The fact sheet also includes some interesting data on the likely cost to employers of having to contribute to the Scheme.

Details of ‘flexible furlough’ will be published on 12 June 2020.

For information on general employment law issues around the coronavirus go to our Coronavirus: Employer Q&A

For information on help for the self-employed, see: Covid-19: Help for the self-employed

The Coronavirus Job Retention Scheme (“Scheme”) enables employers to apply to HMRC for a grant to cover most of the wages of their workforce who remain on payroll but are temporarily not working during the coronavirus outbreak. The Government has updated its original guidance on numerous occasions and published new materials since the Chancellor’s first announcement. The latest guidance can be found via the following links:

The Government published the Treasury Direction (“Direction”) on 15 April, a further Direction on 22 May. The Directions are legal authority for the Scheme. However, HMRC have said that they do not expect employers to be familiar with the Direction, instead they should refer to the latest HMRC guidance relevant to the Scheme. However, the original Direction can be found here and the further Direction here.

Online portal

The online service went live on 20 April 2020. The portal can be accessed here.

On 17 April 2020 HMRC published a step-by-step guide for employers to follow when making a claim under the Scheme.

This note intends to provide an overview of the Scheme and some of the most common questions our clients are asking. We will update it on a regular basis but employers are also advised to regularly check the latest Government guidance for any changes or developments.

Contents:

 

Overview of the Scheme

Which employers are eligible under the Scheme?

All UK organisations with employees can apply for support under the Scheme. This includes businesses, charities, recruitment agencies (including in relation to agency workers who are required to be paid through PAYE), and public authorities.

If a company is in administration, the administrator will also be able to apply for support under the Scheme but the Government has said they would only expect this if there was a reasonable likelihood of the Administrator bringing the employee back to work after furlough. In the first case to look at the Scheme the High Court in Carluccio’s Limited (in administration) [2020] held that administrators who apply for a grant under the Scheme are able to apply funds to the payment of wages in super-priority to all other costs and expenses of the administration.

Individuals who employ employees can also claim under the Scheme, providing they pay the employee through PAYE and the employee was on the payroll and sent HMRC an RTI submission notifying a payment in respect of the employee on or before 19 March 2020.

However, the Government guidance makes it clear that the Government does not expect many public sector employers to use the Scheme. If public sector or non-public sector employers receive public funding for staff costs they are not expected to use the Scheme, though the Government says the Scheme may be appropriate if the organisation is not primarily funded by the Government, or if its staff cannot be redeployed to assist with the coronavirus response.

As well as looking at whether it technically qualifies for the Scheme an employer may also need to consider the public relations impact of applying for support under the Scheme. Some high profile employers have already changed their minds about applying under the Scheme after media and public criticism.

 

What does an employer need to do to apply for the Scheme?

To apply for support under the Scheme the employer must designate an affected employee as a “furloughed employee” and notify the employee of this change in writing. A copy of this written notification must be retained by the employer for five years.

If the employee’s contract of employment does not permit a change in status, the employer will need to agree the change with the employee. Although in view of the alternatives it seems likely that most employees would agree to this change in status.

Whilst is was always preferable to have the employee agree to a contractual variation such as furlough in writing, it is not always reasonably practicable to obtain written agreement. In such circumstances it may – in accordance with general employment law principles – be possible to imply the employee’s consent. For example, informing the employee that they will be deemed to have consented if they do not object to the change within a specified period. This position has always been reflected in the guidance.

In view of the latest guidance our advice is to obtain the employees written agreement to furlough if possible but if that is not possible it will not, by itself, prevent a successful claim under the Scheme.

It should be noted that the employer is still subject to all of its usual contractual and statutory obligations towards its employees.

 

Which individuals are covered by the Scheme?

Individuals must be on the employer’s PAYE payroll on or before 19 March 2020 and have been 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. Until the updated guidance on 15 April the Scheme had only been open to employees on the PAYE system as at 28 February.

An employee can be engaged on any type of contract including full-time, part-time, employees on agency contracts, and employees on flexible or zero hours contracts.

Those who are not employees but “workers” under the Employment Rights Act 1996 (“ERA”) are also covered by the Scheme. Referred to as “limb (b) workers” in the guidance, these workers are defined in the ERA as individuals that work under:

“(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual”.

Office holders (including statutory directors), salaried members of a Limited Liability Partnership (LLP), and agency workers (including those employed by umbrella companies) are also eligible for the Scheme.

The guidance sets out further considerations in relation to those categories that are not employees but may still qualify for the Scheme.

Foreign nationals are eligible for the Scheme and those an all categories of visa can be furloughed.

From 1 July only employees that have completed a full three weeks of furlough prior to the 30 June can be placed on furlough. This means to enter the Scheme for any period up to the end of October an employee must be furloughed for the first time by 10 June at the latest.

 

How long is the Scheme going to be in place for?

The Scheme is in place until the end October 2020. It will then be closed.

On 29 May the Chancellor announced a number of changes to the Scheme. The key points are:

  • The Scheme in its current format will run to 30 June.
  • Flexible furlough will be introduced from 1 July.
  • No new entrants to the Scheme will not be admitted after 30 June.
  • From August onwards employers will be required to contribute to the employees pay (see below)

 

What support can an employer receive under the Scheme?

Until the end of July the Scheme will allow an employer to apply for re-imbursement of 80% of a furloughed employee’s wage costs (see further below), up to a cap of £2,500 per month or £576.92 per week, per employee. If an employee is not paid monthly or weekly the amount that can be reclaimed under the Scheme will be based on 80% of the employee’s wage costs up to a maximum daily amount (as set out in the guidance published on 17 April to assist employers to work out how to calculate 80% of their employees’ wages to claim through the Scheme)

In addition, the Government has said it will pay the associated Employer National Insurance Contributions and minimum automatic enrolment employer pension contributions.

From August onwards the Chancellor has said that employers will be expected to contribute more towards the Scheme, with details yet to be provided.

From the 1 August the employer will be expected to contribute to a furloughed employees pay. The employee will still be entitled to receive the same amount of furlough pay as set out above. On the 29 May the Chancellor announced:

  • From 1 August employers will be expected to pay the Employer NICs and minimum auto-enrolment contributions on all furlough pay. The Government will continue to pay 80% of the employee’s wages up to the relevant financial cap.
  • In September the employer will also be required to pay 10% of the employee’s wages in addition to the Employer NICs and minimum auto-enrolment contributions on all furlough pay. The Government will pay 70% of the employee’s wages.
  • In October the employer will also be required to pay 20% of the furlough pay in addition to the Employer NICs and minimum auto-enrolment contributions on all furlough pay. The Government will pay 60% of the employee’s wages.

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Furloughing an employee

What is a “furloughed employee”?

“Furloughed” is not a term normally used in UK employment law. The Direction now sets out the definition of “furloughed employee” in paragraph 6.1 of the Direction:

“An employee is a furloughed employee if:-

(a)   the employee has been instructed by the employer to cease all work in relation to their employment,

(b)   the period of which the employee has ceased (or will have ceased) all work for the employer is 21 calendar days or more, and

(c)   the instruction is given by reason of circumstances arising as a result of coronavirus or coronavirus disease.”

A furloughed employee will remain on the employer’s pay-roll if they are furloughed but they should not undertake any work for the employer during this time. From 1 July 2020 employees will be allowed to carry out work for employers whilst still being furloughed for their normal hours not worked. The Government will publish details of ‘flexible furlough’ on 12 June 2020.

 

What practical steps should an employer take if an employee agrees to furlough?

It is advisable to put any agreement to furlough in writing. ACAS have produced guidance for employers and recommend that any agreement to furlough includes:

  • the date the furlough starts
  • details of any variation to the employee’s contract of employment e.g. a reduction in pay
  • when it will be reviewed
  • how to keep in contact during the furlough

 

How long must an employee be furloughed under the Scheme?

The minimum length of furlough in order to reclaim the wage costs under the Scheme is three weeks (21 calendar days) but an employee can be furloughed more than once. This means they can go on and off furlough subject to the three week minimum. Accordingly it would be open to employers to rotate employees on to furlough.

Subject to the employee’s ongoing agreement a period of furlough can be extended during furlough. It is not necessary for one period of furlough to end before renewing it.

It should also be noted that an employer can bring an employee back to work at any time during furlough (subject to the terms of furlough that have been agreed with the employee). However, if it brings the employee back earlier than the minimum furlough period under the Scheme it will not be able to reclaim (or will need to repay) wage costs under the Scheme.

On 29 May the Chancellor announced that ‘flexible furlough’ will be introduced from 1 July. Full details will be published on 12 June but information published so far says that the employer will be required to report and claim for flexible furlough period of at least one week

 

Can an employer only furlough an employee if it has no work for them?

The Direction states (para 6.1(c)) that furlough must be “by reason of circumstances arising as a result of  coronavirus or coronavirus disease”. So, whilst the reason for furlough must be related to coronavirus it is not necessary that the employee would otherwise be redundant as some commentators have previously speculated (and which earlier guidance seemed to suggest).

Nonetheless, when making their decision to furlough, employers are advised to objectively consider what adverse impact (if any) Coronavirus has had (or may reasonably be expected to have) on their business by reference by the information/data reasonably available. Even if there is no strict legal requirement to show that they have been “severely affected” by Coronavirus, employers should nonetheless consider the wider scrutiny they may receive from a decision to furlough employees where their business has not been adversely affected by Coronavirus.

 

What process should be followed by an employer who wants to bring an employee back to work from furlough?

In order to be eligible under the Scheme a period of furlough must last at least 21 days. However, from an employment law point of view the employer can ask the employee to return to work at any time (providing it has not agreed anything different with the employee at the time of furlough).

Although no specific period of notice is required to ask the employee to return to work, it is advisable to give the employee a reasonable period of notice. It is also advisable to confirm the request in writing.

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Process of applying to HMRC

What should an employer do once it has furloughed an employee?

It will be required to submit information about the employee and the employee’s earnings to HMRC via an online portal, which went live on 20 April.

A step-by-step guide has now been published which employers should read before making a claim under the Scheme.

 

What information will I need to make a claim?

The step-by-step guide sets out the information that is required before making a claim.

 

When will HMRC make the first grants under the Scheme?

We understand some employers have already received grants under the Scheme since it went live on 20 April. HMRC have said it will aim to make payments within 4 – 6 days of the claim being made.

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Calculating wages

How will “wage costs” be computed?

The Scheme will pay a grant to employers to cover the lower of 80% of an employee’s regular wage (even for employee’s on National Minimum Wage) or £2,500 per month, £576.92 per week, or (if the employee is not paid monthly or weekly) a maximum daily amount which can be found in the guidance produced to help employers calculate wage costs.

In addition to the above sums the employer can claim the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that subsidised wage.

The sums that an employer can claim under the Scheme will change from 1 August. See What support can an employer receive under the Scheme? for more detail.

Grants will be pro-rated if an employee is only furloughed for part of a pay period. 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.

For full details on calculating the amounts that can be reclaimed under the Scheme an employer should review the above guidance first.

In summary the employer should calculate ‘regular wages’ as follows:

Salaried employees

The employee’s actual salary in the latest pay period on or before 19 March 2020 should be used to calculate the 80%. This will be based on their salary for the employee’s relevant pay period (e.g. monthly, weekly etc).

If prior to the Direction being published on 15 April the employer has calculated the employee’s rate of pay using 28 February, the Direction permits the employee to make its first claim on this basis. Rather than having to recalculate it using 19 March date.

Those on variable pay

For those who have been engaged for 12 months the employer should take higher of the same month’s earnings from the previous year or average monthly (or daily or other appropriate pro-rata) earnings for the 2019-20 tax year.

If the employee has been engaged for less than 12 months the employer should take the average monthly earnings for the time they have worked before being furloughed.

For those who have been employed less than a month, the employer should use a pro-rata of their earnings so far.

Salary sacrifice

Benefits provided through salary sacrifice schemes (including pension contributions) that reduce an employee’s taxable pay should not be included in the reference salary. However, the Government has confirmed that it accepts that Coronavirus counts as a “life event” that could warrant changes (including switching freely out of a salary sacrifice scheme) to salary sacrifice arrangements, if the relevant employment contract is updated accordingly.

 

Is it a requirement that the employer actually pay 80% (or £2,500)?

Yes. The Direction states (para 7.1(b)(ii)) that if the employee is being paid less than £2,500 they must be paid “an amount equal to at least 80% of the employee’s reference salary”.

Paragraph 7.12 of the Direction goes on to provide that if between the 1 March and 18 April the employer has paid the employee less than 80% of their regular wages as required under the Direction (for those on less than £2,500) then the employer can pay the difference and it will satisfy the requirement of the Scheme.

 

Is the employer required to actually pay the employee before it recovers the money from HMRC?

The employer can claim under the Scheme before it has actually paid the wages to the employee.

 

Can payments received through a tronc be included in the calculation of wage costs?

No. Although the hospitality industry has urged the Government to reconsider this.

As stated above, tips are not included in the calculation of wage costs. HMRC have subsequently confirmed that tronc payments are not eligible for payment under the Scheme. A tronc is a separate pay arrangement sometimes used to distribute tips, gratuities and service charges.

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‘Top-up’ of employees pay

Is the employer required to ‘top-up’ the employee’s wages so that they receive 100% of their normal pay?

The Scheme does not require the employer to pay the balance of the employee’s wage costs, although it can choose to do so if it wishes. If it tops up the employee’s pay the employer will be responsible for all related employment costs (such as Employer National Insurance Contributions and minimum automatic enrolment employer pension contributions) of any ‘top up’ element.

If the employer does not have an existing contractual right to pay the employee less than their full pay it should agree a wage reduction with the employee if it does not intend to top-up furlough pay.

It should also be noted that the position in relation to pay for statutory annual leave is different.

It should be noted that (as employers must continue to operate PAYE on amounts paid to employees) if an employee agrees to a significant wage reduction it may be advisable for the employee to apply to HMRC for a new PAYE coding notice to reflect the reduction in income. From the 1 August the employer will be required to make contributions to the employee’s furlough pay as set out above.

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Working during furlough

Can the employee carry out voluntary work or training during a period of furlough?

A furloughed employee may undertake voluntary work and training but they must not provide any services or generate revenue on behalf of the employer organisation during the period of furlough.

If the employee carries out training (e.g. online training), they must be paid the National Minimum (NMW) or National Living Wage (NLW) by the employer, even if this exceeds the 80% being subsidised. The employer will be required to top up the wages in this situation.

Flexible furlough will be introduced from 1 July for employees that have already completed a period of furlough by 30 June. This will enable employers to have an employee carry out work and be furloughed for any of their normal hours that they are not working. Full details of flexible furlough will be published on 12 June but the Factsheet states that an employee will be able to work any amount of time and any shift pattern, with the employer being able to claim under the Scheme for their normal hours not worked. The information published to date indicates that the employer will need to report and claim for a minimum period of ‘flexible furlough’ of one week.

 

Can the employee work for a different employer during a period of furlough?

There is nothing to prevent a furloughed employee working for a different employer. On that basis, the Scheme itself does not prevent an employee working for a second employer or taking up new employment during a period of furlough.

Separately, it should be noted that any restrictions in the employee’s contract of employment on working elsewhere during their employment will remain in force during furlough. Although in the circumstances many employers may be willing to relax such restrictions.

 

Is the employee ‘working’ if they undertake trade-union duties or other representation duties?

The latest guidance states that employees who are trade union or non-union representatives may undertake duties and activities for the purpose of individual or collective representation of employees and other workers. Examples of what this includes are:

  • Trade union representatives taking part in collective bargaining with the employer.
  • Trade union and employee representatives representing employees in collective redundancy consultations and TUPE consultations.
  • Individuals attending disciplinary meetings as an employee’s companion.

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Minimum Wage

If the employer decided to only pay 80% of the employee’s wages will it need to top this up if it falls below the NMW or NLW?

The NMW and NLW are only payable if the individual is actually working. Furloughed workers are not working and are therefore not entitled to the NMW/NLW (except when training as mentioned above).

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Directors/shareholders/owner-managers

Can a director/shareholder/owner-manager of an organisation self-furlough?

Yes, if they are paid via PAYE and were on the payroll on 19 March (see above). They will also be able to carry out their statutory duties relating to the filing of company accounts or provision of other information relating to the administration of the director’s company.

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Apprentices

Can apprentices be furloughed?

Yes.

However, they must be paid the Apprenticeship Minimum Wage, NLW, or NMW as appropriate for any period during which they are training. The employer will be required to top-up an apprentices pay in these circumstances if furlough pay was less than the appropriate minimum wage.

The Government have produced guidance for apprentices, employers, training providers and assessment organisations in response to the impact the coronavirus.

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Job offers

Does the Scheme cover employees who have received a job offer but not yet started work?

An employee must be on the employer’s PAYE payroll on or before 19 March 2020 and have been notified to HMRC on an RTI submission on or before 19 March 2020. The guidance makes it clear that employees who do not satisfy these requirements cannot be furloughed or be covered by the Scheme.

The changes to the Scheme published on the 15 April now means that many new hires who had previously been excluded from the Scheme can be furloughed by a new employer.

If an employer made an employee redundant, or they stopped working for the employer on or after 28 February 2020, the employer can re-employ them, put them on furlough and claim for their wages through the scheme. This applies to employees that were made redundant or stopped working for the employer after 28 February, even if the employer does not re-employ them until after 19 March. This applies as long as the employee was on the payroll as at 28 February and had been notified to HMRC on an RTI submission on or before 28 February 2020. This means an RTI submission notifying payment in respect of that employee to HMRC must have been made on or before 28 February 2020. This may be attractive to employers that have reluctantly made redundancies already because of the current crisis, although it is otherwise unlikely to be taken up by many employers.

If an employer plans to re-hire an employee they should obtain specific legal advice before doing so.

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Annual leave

Can employees take annual leave during a period of furlough?

Yes.

On 13 May 2020 the Government published guidance specifically looking at annual leave during the coronavirus pandemic.

Any holiday pay for statutory annual leave under the Working Time Regulations should be paid at the employee’s normal rate of pay. This means that an employer will need to “top-up” furlough pay if it is otherwise less than what the employee is entitled to under the WTR.

 

Does annual leave continue to accrue during furlough?

Yes.

 

If the employer has already placed an employee on paid annual leave can that leave now be redefined as a period of furlough?

The Treasury initially indicated this would not be possible but the guidance published since does not make it clear if this is still the case. An employer is advised to check with HMRC if it is looking to do this.

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Caring for others

Can those who cannot work because they are caring for others be furloughed?

Those who cannot work because they have caring responsibilities (e.g. childcare) can be furloughed.

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Shielding employees

What if an employee is ‘shielding’?

“Shielding” refers to those individuals who are extremely vulnerable to serious illness from coronavirus. Individuals in this category (and those who live with them) should follow strict social distancing rules. For more information on self-isolation and social distancing see our Coronavirus: FAQs for Employers.

Employees who are shielding (or staying at home with someone who is shielding) in line with public health guidance can be placed on furlough.

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When the employee is on other forms of leave

What happens if an employee is already on unpaid leave?

Employees on unpaid leave cannot be furloughed, unless they were placed on unpaid leave after 28 February.

 

What if an employee is sick or self-isolating?

The latest guidance makes it clear that short-term sickness or self-isolation should not be a consideration in deciding to furlough an employee. Furlough must last for at least three weeks so this would not be suitable if an employee was still needed by the employer but self-isolating or sick with coronavirus related symptoms. In most cases such employees will be able to return to work before the end of the three week furlough period.

However, an employer can place a sick or self-isolating employee on furlough for business reasons. Although, if an employee is furloughed the guidance states that they should be paid furlough pay.

An employer cannot claim under the Scheme and SSP rebate scheme at the same time. If an employer places a sick employee on SSP they can no longer claim furlough pay under the Scheme. If they keep the employee on furlough pay whilst sick they can reclaim it under the Scheme.

An employee cannot be furloughed until a current period of SSP has ended but the Direction states that periods of SSP during furlough will not break the furlough period.

 

What if an employee is already on Statutory Sick Pay?

Employees on sick leave or self-isolating should get Statutory Sick Pay, but can be furloughed after this.

 

What if an employee is on Maternity Leave, contractual adoption pay, paternity pay or shared parental pay?

The normal rules for maternity and other forms of parental leave and pay will continue to apply in the usual way. Most employers can reclaim most of any statutory pay for these types of leave from the Government anyway.

However, employees on maternity leave or other forms of parental leave can be furloughed. Any enhanced (earnings related) contractual pay for maternity, adoption, paternity, and shared parental pay can be reclaimed under the Scheme.

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Re-hiring redundant employees

Can an employer re-hire an employee that has been made redundant and put them on furlough?

Yes it is possible under the Scheme to re-hire employees that have been made redundant since 28 February and put them on furlough (providing they otherwise meet the qualifying criteria under the Scheme). The guidance also makes it clear that any employee who has left their employment since 28 February could be re-hired and subsequently furloughed.

If an employer plans to re-hire an employee they should obtain specific legal advice before doing so.

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Employee does not agree to furlough

What would an employer do if an employee did not accept the offer of being furloughed?

If there is no contractual right to change an employee’s status an employer should clearly explain the reality of the employee not accepting the ‘furloughed’ status (basically unpaid leave, lay off or redundancy) under which an employee would be worse off. If the employee still refuses, then one of the aforementioned procedures will need to be followed (i.e. unpaid leave, lay off or redundancy).

An employee must have agreed to furlough in line with ordinary employment law principles. If the employee does not agree it would appear that the employer has to consider other alternatives such as lay-off or possibly redundancy.

 

Is there a right for employees to appeal against being designated as furloughed where this is a change to their terms and conditions?

If an employee accepts the designation you do not need to offer the opportunity to appeal. However, it is likely that if the alternative is (unpaid) lay-off or redundancy that most employees will accept being furloughed.

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Collective redundancy consultation

When is it necessary to collectively consult with employees?

If an employer proposes to dismiss 20 or more employees the obligation to collectively consult with employee representatives will be triggered. ‘Dismissal’ for these purposes means situations when the current contract is brought to an end, which is not necessarily limited to dismissal in the ordinary sense. As such, if you intend to furlough 20 or more employees within a 90 day period it is advisable to take specific legal advice before doing so. As stated already, an employer remains subject to its usual contractual and statutory obligations when furloughing employees.

 

Does collective (or individual) consultation during furlough, in relation to potential redundancies, constitute “work” that would be prohibited under the Scheme?

The guidance specifically says that an employer can make redundancies during furlough. It is therefore our view that collective or individual consultation will not in most cases amount to work that would breach the furlough rules.

However, if an employee or trade union representative is paid by the employer to undertake these duties we would suggest you take specific legal advice before asking them to undertake their duties.

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Pension contributions

What is the position with pension contributions if an employee is furloughed?

As you would expect, issues around pensions are not necessarily as straight forward as they may appear when first reading the guidance. Freeths Pensions team have produced a series of articles looking at the pensions issues around the Scheme that can be found under the Employment, Health & Safety and Pensions section of our Coronavirus Hub, including Coronavirus and Auto-Enrolment, Coronavirus and Salary Sacrifice, and others. The team have also looked at final salary schemes and issue for employers during the coronavirus crisis and Furlough of an Employee on Parental Leave and Potential Impact on Pensions Contributions.

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Taxation under the Scheme

How will employees be taxed?

Employees will still be subject to normal payroll taxes. This includes pension contributions (both employer contributions and automatic contributions from the employee), unless the employee has opted out or stopped saving into their pension. Accordingly employers should operate PAYE in the usual way.

 

Will grants under the Scheme be taxed in the hands of the employer?

Payments received by businesses under the Scheme are intended to offset a fall in revenue. They must therefore be included as income in the business’s calculation of its taxable profits for income tax and corporation tax purposes, in accordance with normal principles.

As businesses will be able to deduct employment costs as normal when calculating taxable profits for income tax and corporation tax purposes, we would expect the grant to be broadly income tax/corporation tax neutral for businesses unless it results in a windfall (for example because there is no associated fall in revenue).

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TUPE

If an employee TUPE transferred to a new employer after 19 March 2020, can they be furloughed?

A new employer is eligible to claim under the CJRS in respect of the employees of a previous business transferred after 28 February 2020 if either the TUPE or PAYE business succession rules apply to the change in ownership. If you require further advice on this Freeths employment team can assist.

For further information on PAYE business succession see here.

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For further information contact Christopher Sing

If you would like to talk through the consequences for your business, call our Coronavirus Helpline on 0330 134 0199 for a free consultation (on appropriate commercial enquiries only) or e-mail us and one of our Helpline team will get in touch.


The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.