On Monday 20 April 2020 the Coronavirus Job Retention Scheme portal went live. As of mid-afternoon, it had only crashed about four times, which is pretty good. HMRC seems to be restricting access to the portal, which must be helping. Thousands of employers are now submitting claims for Coronavirus Job Retention scheme (CJRS) grants to help them pay their employees’ wages at the end of April.
The several versions of guidance on the CJRS have vexed and frustrated employment lawyers for the last few weeks. I’m just not referring to HMRC’s habit of issuing new (and substantially altered) guidance after close of business before a weekend. I’m going to try to summarise a few main points about furloughing employees under the CJRS and issues connected with it.
The latest versions of the guides are:
- Employers’ guide
- Employees’ guide
- Step by step guide for employers
- Guidance on how to calculate 80% of your employees’ wages
They are worth reading, despite the confusion and conflicting detail that remains in some areas.
- The Coronavirus Job Retention Scheme has been extended to 30 June 2020, in line with the extended lockdown period. It could be extended further.
- Employees continue to accrue holiday during furlough.
- Employees can take holiday during furlough, presumably without breaking the furlough period. During holiday, employees must be paid at 100% of their normal (pre-furlough) remuneration, though employers can claim the CJRS grant for those holiday days. This means that employers must top up the amount received from CJRS to the employee’s normal remuneration for holiday days. This includes bank holidays.
- Employers can still use their normal powers under the Working Time Regulations to require employees to take holiday. Whether a particular employer want to do this will depend on their situation. Some employers may prefer to take advantage of the government paying 80% of an employee’s holiday pay, even if the employer then has to top it up to 100%, rather than paying 100% of the holiday pay after staff have returned to work. Some employers may not want to pay out any sums at present in addition to the CJRS grant.
- Alongside the above, the Working Time Regulations have been amended to enable employees to carry forward any holiday that, due to Covid-19, it has not been “reasonably practicable” to take in the current holiday year, to the next 2 holiday years. That is intended to smooth out the additional holiday days over a prolonged period. However, it also means that employers would be carrying forward a liability to pay those additional holiday days in lieu if employment is terminated in future. The right to carry over will not apply if the employer makes it reasonably practicable for employees to take all their holiday in the current year.
- There is also some debate over whether an employer can require an employee to take holiday during the lockdown, when it’s rather tricky for the employee to benefit from the “rest and recuperation” that holiday is supposed to bring.
- So, where the employer is already topping up the CJRS grant to 100%, there is no immediate cost difference at this point where employees take holiday during furlough. If the employer is not topping up (and there is no obligation to do so) then allowing/requiring holidays will increase costs at this point. The cost/benefit comes after the end of the CJRS, once employees have returned to work, and businesses are trying to get back up to speed. Most employers would want all hands on deck at that stage, and where possible to avoid losing employees to holidays. Of course, holidays that have already been booked are tricky to cancel (especially where an employee has a booked holiday). In addition, parents may have a particular need to take holiday during the school holidays, so employers seeking to restrict holidays could run into discrimination issues too.
Form of agreement
- The earlier versions of the guidance only required employers to notify employees in writing that they were being furloughed, and to keep that notification for five years. The Treasury Direction issued last week stated that both parties had to agree in writing that the employee had been furloughed. There was a fear that this would require employers to retrospectively seek written agreement from all employees already furloughed, and also potentially that they would be unable to claim from the start of furlough but only from the date on which they obtained the employee’s written agreement. It’s to be hoped that this is not the case.
- Given the speed and urgency with which the CJRS was announced and set up, it’s not surprising that there have been aspects that have required finessing to get rid of inconsistencies and conflicts. However, whether or not the employee needs to confirm agreement in writing is a major issue that goes straight to whether or not a claim will be paid (or later clawed back) by HMRC. Advice should be sought if you feel this may affect you.
- It has been confirmed that furloughed employees are not entitled to SSP. Employers can furlough staff who are shielding, or self-isolating, and/or have symptoms of Covid-19. If the employer chooses not to furlough a shielding employee, or someone who has symptoms or live with someone with symptoms and are therefore self-isolating, then they are now entitled to SSP. The guidance and Direction are, however, not clear on this point.
- HMRC have set up a portal via which reports can be made about employers claiming fraudulently or requiring employees to work despite being furloughed.
- HMRC will audit claims and may claw back (or not pay) any grant that turns out to have been claimed fraudulently.