Summary
Key points arising out of the revised guidance and the legislative framework include:
1. Eligibility cut-off date extended from 28 February to 19 March: This is the most significant change to the UK Coronavirus Job Retention Scheme (CJRS) guidance. It brings into scope many new recruits who previously could not be furloughed. Earlier versions of the guidance said that new recruits who joined after 28 February were excluded from the scheme. However, the latest guidance now says that individuals put on the employer’s payroll on or before 19 March, and in respect of whom the employer has also made an RTI submission to HMRC on or before 19 March, can be furloughed.
It may well be that employers have already taken action to terminate new recruits who, according to previous versions of the guidance couldn’t be furloughed. Employers still have the option to rehire these individuals and then furlough them, if they wish to do so.
2. Requirement for employer/employee agreement: the legislative underpin for the CJRS has now also been published (the ‘CJRS Direction’) and says that to be furloughed, the employer and employee must agree in writing to the furlough arrangement. The best evidence of this will be express confirmation from the employee that they agree to the furlough letter terms. However, for employers who are looking to furlough a large workforce quickly, it may not be practicable to obtain express agreement first from the employees. In such cases, the employer may look to rely on implied consent, evidenced by the employees’ acceptance of reduced pay in accordance with the furlough terms. Recent case law suggests that implied consent to furlough may be obtained in this way.
3. Deferring payment of furlough salary until employer has received those monies from HMRC: It appears from the terms of the CJRS Direction that employers may wait for receipt of monies under the CJRS before paying that on to furloughed staff. It is a fundamental condition of the CJRS that such monies are passed through to furloughed staff.
4. How to submit a CJRS claim: the government has indicated that it expects the CJRS online portal to go live on or around April 20th. The latest version of the guidance provides more detail of the information an employer needs to input in order to submit a claim, including details of how to make a bulk claim in respect of more than 100 furloughed staff.
5. Holiday rights whilst on furlough still unclear: Both the CJRS Direction and the latest guidance still fail to address employees’ holiday rights during furlough, although as we have mentioned previously, separate ACAS guidance indicates that employees can take holiday during furlough and should receive holiday pay based on their normal pre-furlough salary.
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