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How does the Coronavirus Job Retention Scheme work?

The Government has now published further guidance on the application of its Coronavirus Job Retention Scheme which can be found at the following link:

This article provides a short update on the important practical points arising out of the guidance.

Who can be furloughed?

An employer can claim under the scheme in respect of the following employees:

  1. full-time employees

  2. part-time employees

  3. employees on agency contracts

  4. employees on flexible or zero-hour contracts.

However, the employees must have been on the employer’s PAYE payroll on 28 February 2020.

If you have made one of these employees redundant since 28th February then they may be rehired in order that they can be placed on furlough. Otherwise any new hires since 28th February 2020 cannot be placed on furlough. Neither can employees who were already on unpaid leave on 28th February 2020. Employees on sick leave or self-isolating should get Statutory Sick Pay, but can be furloughed after this. Employees who are shielding in line with public health guidance can be placed on furlough. Directors of companies can also be furloughed (even though they are entitled to carry on the statutory duties as a director as these do not count as work).

Public sector organisations

"The government expects that the scheme will not be used by many public sector organisations, as the majority of public sector employees are continuing to provide essential public services or contribute to the response to the coronavirus outbreak.

Where employers receive public funding for staff costs, and that funding is continuing, we expect employers to use that money to continue to pay staff in the usual fashion – and correspondingly not furlough them. This also applies to non-public sector employers who receive public funding for staff costs.

Organisations who are receiving public funding specifically to provide services necessary to respond to COVID-19 are not expected to furlough staff.

In a small number of cases, for example where organisations are not primarily funded by the government and whose staff cannot be redeployed to assist with the coronavirus response, the scheme may be appropriate for some staff".

The restriction on work

The guidance makes clear that the furloughed worker must not undertake work on behalf of the organisation. This embraces working for another associated entity of the employer. Generally it includes providing services or generating income. One cannot use the scheme if employees are still working for reduced pay or reduced hours. Employees who are on agency contracts must not be working.

The tax position is clarified in that the employee is subject to tax and other usual deductions. It follows that the employer will be liable to employer’s NI, as below.

The guidance makes clear that necessary changes are needed to the employment contract to go on furlough, i.e. an agreement not to work and receive 80% of pay, has to be agreed with the employee.

The employer has a discretion as to which employees to place on furlough but that discretion is subject to the need to have regard to equality and discrimination law.

When furloughed, employees can undertake voluntary work or training as long as it does not provide services or generate revenue for the employer. If the employer requires the employee to carry out online training, it appears that the national minimum wage must be paid for the time they are so engaged.

Employees on furlough are not working and thus the National Minimum Wage does not apply, unless as noted they are required to undertake online training.

Maternity and Statutory Maternity Pay

These payments seem to apply as normal, but if the employer offers enhanced earnings-related contractual pay for maternity leave, this can be claimed as a furloughed wage cost. The same proposition applies for contractual adoption, paternity or shared paternity pay.

Procedural requirements

The application portal is not yet ready. However, the latest guidance gives a helpful indication of the list of information an employer will need to make an application:

  • your ePAYE reference number

  • the number of employees being furloughed

  • the claim period (start and end date)

  • amount claimed (per the minimum length of furloughing of 3 weeks)

  • your bank account number and sort code

  • your contact name

  • your phone number

An employer will also need to calculate the amount it is claiming. It is obviously sensible for an employer to start to draw together all of this information now so that an application can be made as soon as the portal launches.

One further important procedural requirement seems to have been introduced by the new guidance. It states that:

"To be eligible for the subsidy employers should write to their employee confirming that they have been furloughed and keep a record of this communication".

Subject to the publication of more detailed rules, all employers should ensure they follow this basic requirement.

What the employer receives

The Government guidance describes what the employer receives in the following terms:

“You will receive a grant from HMRC to cover the lower of 80% of an employee’s regular wage or £2,500 per month, plus the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that subsidised wage. Fees, commission and bonuses should not be included.”

So it appears that the employer receives wage costs such as NI on top of the £2,500 or 80%. The employer then has to pay the 80% or £2,500 per month to the employee, so they get the whole of this subject to tax and their NI. 17.That does not extend to any payment the employer chooses to make to top up the 80% to 100% or any voluntary automatic enrolment contributions above the minimum mandatory employer contribution of 3% of income. The employer has to pay NI on the top up and pay the additional pension contributions.

Note that the salary on which the 80% is calculated is the employee’s salary as at 28th February 2020 and does not include commission and bonuses.

Variable pay

Variable pay is addressed, but not using the 13 weeks reference period contained in the Employment Rights Act. Instead a wider basis of assessing average pay is used.

If the employee has been employed (or engaged by an employment business) for a full twelve months prior to the claim, you can claim for the higher of either:

  • the same month’s earning from the previous year

  • average monthly earnings from the 2019-20 tax year

If the employee has been employed for less than a year, you can claim for an average of their monthly earnings since they started work.

If the employee only started in February 2020, use a pro-rata for their earnings so far to claim.

Collective consultation

The guidance states the following:

“If sufficient numbers of staff are involved, it may be necessary to engage collective consultation processes to procure agreement to changes to terms of employment.”

Moving in an out of furlough

The guidance says that only one claim can be submitted every 3 weeks, which is the minimum length an employee could be furloughed for. It follows that you can take staff in and out of furlough on a 3-week cycle, or a longer cycle, if you wanted to spread the burden of actual work.

Employee rights on furlough

During the period of furlough, employees retain their employment status. Therefore, at the end of the furlough period, employees will have the same rights as they did previously, including Statutory Sick Pay entitlement, maternity rights, other parental rights, rights against unfair dismissal, redundancy payments and accrued holiday entitlement.

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