Coronavirus Job Retention Scheme FAQ
As a result, we have created this FAQ document to highlight certain key aspects of the Scheme.
The government announced more details about the scheme on 26 March, so we have updated this document accordingly – our priority is to continue to update and support you during this difficult time.
While there are clearly cash flow and tax implications from the scheme, we must reiterate that this is an employment law matter first and foremost and you therefore must seek the appropriate legal advice.
What is furloughing?
The Government unveiled the Coronavirus Job Retention Scheme on 20 March, introducing the payment of grants of up to £2,500 of wage costs per person per month (see below for the definition) for any employee on ‘leave of absence’ (or ‘furlough’). This involves an employee being sent home without work, and no longer being available to the business or organisation (charities and public authorities are covered too). This will not apply, therefore, if an employee is able to work from home, with adequate work, or for contractors.
Any employer can use furloughing, regardless of its sector and size, as long as it has employees and sends them home without work. The ‘without work’ point is fundamental. The government guidance states that “HMRC will retain the right to retrospectively audit all aspects of [any] claim” – and this could potentially include a forensic analysis of a business’ non-financial systems to confirm that employees subject to a claim have not been working.
To be safe, you may need to lock furloughed employees out of some of your remote working systems to ensure that they are not ‘helpful’ and give rise to a liability (and potentially significant penalty) in the future.
Who does it affect?
The Scheme applies to full-time and part-time employees, as well as employees on agency contracts and employees on flexible or zero-hour contracts - and there is specific guidance on how an employer should calculate 80% of normal pay in cases where the employee’s pay varies. The government has also now issued guidance on how the Scheme applies to employees who are on Statutory Sick Pay, Maternity Leave, paternity pay etc.
The Scheme is available to all UK employers that had created and started a PAYE payroll scheme on 28 February 2020 and have a UK bank account. In addition, where a company is being taken under the management of an administrator, the administrator will be able to access the Scheme for the company’s employees. It is also specifically noted that the scheme will not be used by many public sector organisations, which are continuing to provide essential public services or contributing to the response to the coronavirus outbreak.
The Scheme will be available to company directors as well as employees, as long as the furlough conditions are met. However, this requires the director to have been on the company payroll, and receiving salary in the qualifying period. Many directors of small companies will be in receipt of no, or limited salary and receive the majority of their income in the form of dividends, giving a low salary base from which to calculate any furlough payment. Neither this Scheme, nor the newly announced relief for self-employed individuals, will compensate for the loss of income attributable to dividends.
- An online portal is being set up by HMRC to manage the scheme, although it is not yet operational
- The government will pay 80% of usual monthly wage costs to the employer , plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that wage
- There will be a recovery cap of £2,500 per month per employee
- Pension and NI contributions still need to be paid by the employer to HMRC. The government will issue more guidance on how employers should calculate their claims for NI and pension contributions before the Scheme goes live. Furlough grants can still operate alongside HMRC’s ‘Time to Pay’ arrangements in respect of PAYE liabilities
- An employer can choose to top-up wages to 100%. However, there is no requirement for employers to top up.
- Employers can only submit one claim to HMRC under the Scheme at least every three weeks, which is the minimum length for which an employee can be furloughed
- The amounts received by an employer under the Scheme need to be included as income in its calculation of its taxable profits for Income Tax and Corporation Tax purposes
- It is available to employees on the payroll at 28 February 2020. The Scheme also covers employees who were made redundant since 28 February 2020, if they are rehired by their employer. It is therefore possible that employees who have been dismissed by reason of redundancy since the start of March can be re-engaged, if they agree, and then placed on furlough leave.
How do I put an employee on furlough?
The government’s advice makes it clear that: “Employers should discuss with their staff and make any changes to the employment contract by agreement. When employers are making decisions in relation to the process, including deciding who to offer furlough to, equality and discrimination laws will apply in the usual way.”
However, consent will be required if there are no such clauses. Placing an employee on furlough leave with a reduction in pay without consent will be a change of status, as described in the government guidance. As such, it will amount to a fundamental change to their contract of employment and would normally require employee consent.
Selection for furlough should take place via a simplified selection criteria process, akin to redundancy. Where the employee is furloughed on full pay whilst receiving the grant for 80% of their wages costs, we understand that employee consent will still be needed.
If an employee refuses to be put on furlough leave, they may risk being dismissed by reason of redundancy (see below).
In all cases, employment law advice should be sought.
Before considering redundancies, there must be a genuine redundancy situation and a fair and reasonable procedure must be applied. This needs to include the relevant notification, selection and consultation procedures.
Employees can be asked to use annual leave entitlements to cover some of the period of not working. If they wish to do this, employers must give at least double the amount of notice as the period of leave they wish for the employee to take.
Where the employer forces the employee to take a cut in hours (and, therefore, wages), the employee would be entitled to make a claim for unlawful deduction of wages and constructive dismissal.
An employer can ask an employee not to attend work, but it would have to pay the employee unless there is a specific lay-off clause in the contract. Employee consent would therefore be required.