FURTHER GUIDANCE RELEASED FOR EXTENDED FURLOUGH SCHEME

On 10 November, HMRC published updated guidance on the extended Coronavirus Job Retention Scheme (CJRS) which contains some important points which employers need to bear in mind as, in certain respects, they represent a shift in approach.

Confirmation of points we already knew

• Employers can claim 80% of an employee’s usual salary for hours not worked, up to a maximum of £2,500 per month
• The extended scheme is open for employees who were employed on 30 October 2020
• It is also open for employees who were made redundant or stopped working on or after 23 September 2020 if they are then rehired
• Employers do not need to have previously claimed for an employee before 30 October 2020 to claim for periods from 1 November 2020
• Employers can furlough employees for any amount of time and any work pattern
• Claims can be made for periods ending on or before 31 October 2020 until the deadline on 30 November 2020
• There is no maximum number of employees that an employer can claim for from 1 November 2020 (unlike before where employers could only claim for the number of employees they had claimed for prior to June)
• Employers must confirm in writing to the employee that they have been furloughed, and keep a written record for five years

What’s new or unexpected

• Furlough pay during notice may no longer be possible from 1 December*: the guidance contains the following note which is very telling: “The government is reviewing whether employers should be eligible to claim for employees serving contractual or statutory notice periods and will change the approach for claim periods starting on or after 1 December 2020, with further guidance published in late November”
• Employers can agree retrospectively to furlough someone with effect from 1 November 2020, as long as the agreement to retrospectively claim furlough occurs on or before this Friday, 13^th November
• Employees returning from maternity leave need to give the statutory eight weeks’ notice to end maternity leave early in order to then be furloughed (furlough pay is typically higher than SMP) – note that we have previously taken the view that employer and employee could waive the 8 week notice requirement but this option isn’t mentioned in the guidance and the clear inference is that such a scenario is not allowed: “If your employee decides to end their maternity leave early to enable them to be furloughed (with your agreement), they will need to give you at least 8 weeks’ notice of their return to work and you will not be able to furlough them until the end of the 8 weeks”
• Publication of names of employers using the scheme: the guidance states, “From December 2020, HMRC will publish employer names for companies and Limited Liability Partnerships (LLPs), the company registration number of those who have made claims under the scheme for the month of December onwards”.

*it seems we will not know until later whether this will apply to those already on notice where notice has been given before 1 December, or whether it applies only where notices are issued from 1 December. As the guidance merely talks about “claim periods starting on or after 1 December 2020”, the suggestion is that it will apply regardless of the date of issue of the notice. It will be what it will be so in reality this should not impact employers’ plans.

If you would like to discuss this further, then please contact a member of our employment team.  To view the rest of our November Employment Law Update, click the button below.