This alert is up-to-date as at 18:00 (GMT) on Friday 17 April 2020. This update serves as a follow up to the series of alerts issued since 23 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 issued  several important clarifications in respect of the Coronavirus Job Retention Scheme (known as the Furlough Scheme) (“CJRS”) and its practical operation (further information can be found here and here). For more information on what the CJRS is, please see our previous alerts published on 23 March30 March8 April, and 14 April 2020.

A summary of the important changes and/or points of clarification since the previous HMRC guidance on 9 April 2020 is as follows:

Updates

A summary of the important changes and/or points of clarification since the previous HMRC guidance of 9 April 2020 is as follows:

  • The CJRS has now been extended to cover furloughed employees’ wages until 30 June 2020
  • The eligibility date has been extended to 19 March 2020:

The qualifying date for employees to be on payroll has been changed from 28 February 2020 to 19 March 2020. The payroll scheme must have been notified to HMRC on a RTI (Real Time Information) submission on or before 19 March 2020.

  • Written agreement with furloughed employees is now required

For CJRS purposes, an employee will only be treated as being furloughed if the employee has been instructed by the employer and the employee has agreed with the employer in writing to cease all work in relation to their employment. The previous guidance merely stated that employees had to be notified in writing.

Consequently, without a written agreement, claims under the CJRS are likely to fail. In practice, most employers have implemented a reduction in salary and so will be covered but if employees have only been notified and not agreed in writing (an email is fine), employers should immediately seek employee agreement. It may be that funds are claimable only with respect to the time after which the employee has agreed.

  • Instruction to cease working must be given by reason of circumstances arising as a result of coronavirus or coronavirus disease:

It is no longer necessary for an employer to show that the furloughed employees would otherwise have been made redundant.

  • Instruction to cease working can exclude training activities directly relevant to an employee’s employment agreed between employer and  employee before being undertaken: 

Employers should ensure that any training activities undertaken by furloughed employees are agreed with the employees in advance and documented in writing.

  • Furloughed directors:

There is a very narrow interpretation of directors' duties that can be undertaken on furlough.

This means furloughed directors can only undertake work to fulfil a duty or other obligation arising from an Act of Parliament relating to the filing of company's accounts or provision of other information relating to the administration of the director's company.

  • "Regular wages" clarification:

CJRS claims for employees paid a regular wage or salary employer must not include performance-related or discretionary bonus, conditional payments (for example where a threshold must be met) tips or any non-financial benefits.

  • Statutory benefits clarification:

CJRS claims must not include amounts of specified statutory benefits (e.g. maternity, adoption or shared parental pay) payable during the employee’s period of furlough and the amount of the claim must be correspondingly reduced.

  • TUPE transfers clarification:

If a TUPE transfer takes place after 19 March, the new employer will potentially be eligible to claim under the CJRS for some or all of the transferring employees, even if the new employer did not have a qualifying PAYE scheme on 19 March, provided that the employees were included in a qualifying PAYE scheme of the former employer immediately before the transfer.

  • Annual leave - partial clarification:

Employer’s Guidance updated that employees may take annual leave during furlough which employers should pay at 100% salary. Employer’s Guidance still silent on whether employers can require employees to take annual leave during furlough. 

 

If you have any questions, or for further information please reach out to Nicola KerrMark DorffCharlotte Møller 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.