This alert is up-to-date as at 18:00 (GMT) on Wednesday 8 April 2020. This update serves as a follow up to the alert dated 30 March 2020. This does not constitute an exhaustive list of measures proposed by the UK Government. The public guidance is being continually updated by the UK Government, HM Treasury and the Bank of England which is being closely monitored.

HMRC has now released updated guidance clarifying some aspects in respect of the Coronavirus Job Retention Scheme (known as the Furlough Scheme) (“CJRS”) and its practical operation which had previously been left unclear. For more information on what the CJRS is, please see our alerts published on 23 March 2020 here and 30 March 2020 here.

The following is a short summary of the key points the HMRC update addressed:

Clarifications

The updated guidance makes it clear that:

  • employees dismissed for any reason since 28 February 2020 can be rehired and placed on furlough, not just employees made redundant since that date;
  • any employee with two jobs can still work for one employer while on furlough from the other;
  • an employee on furlough can start a new job while on furlough; and
  • CJRS can cover non-employees who satisfy the definition of ‘worker’ in the Employment Rights Act 1996 provided they are paid through PAYE.

Key Questions Not Answered

Unfortunately, the guidance did not provide answers in respect of several important issues regarding annual leave, sick leave and statutory sick pay (“SSP”), which remain unclear:

  • whether employees can take, or be required to take, annual leave during furlough and, if they can, what remuneration they would be entitled to receive as holiday pay:
    • ACAS guidance, published on 2 April 2020, suggests furloughed employees can take holiday but not whether they should be paid normal remuneration or at furlough rate;
  • it is clear that an employee already receiving SSP cannot be furloughed until they return to work but conflicting guidance has been published as to whether an employee on furlough who subsequently becomes sick has the right to SSP:
    • the guidance says that furloughed employees have the right to SSP; and
    • the guidance also says that employers cannot claim under the CJRS for an employee who is receiving SSP.

While this was a useful update from HMRC it is clear that a number of issues remain unanswered. It is expected that further details will be published during the course of this month as HMRC work through the various issues.

If you have any questions, or for further information please reach out to Nicola Kerr , Mark Dorff or Max Binney.

The views expressed herein are solely the views of the authors and do not represent the views of Brown Rudnick LLP, those parties represented by the authors, or those parties represented by Brown Rudnick LLP. Specific legal advice depends on the facts of each situation and may vary from situation to situation. Information contained in this article is not intended to constitute legal advice by the authors or the lawyers at Brown Rudnick LLP, and it does not establish a lawyer-client relationship.UK