Q: What are the new updates to the Coronavirus Job Retention Scheme (CJRS)?
A: The government has now announced what’s considered to be the final extension of the scheme until 30 September 2021. Employers can continue to claim up to 80% of wages in May and June 2021.This falls to 70% in July and 60% in August and September.
Q: What are the key dates, amendments and extensions relating to the Coronavirus Job Retention?
A. On 29th May 2020, the Chancellor announced changes to the CJRS to include more flexibility, more responsibility for employers to contribute towards furloughed employees’ wages and that the scheme would be wound up at the end of October.
1st July 2020 – Employers can require employees to work part-time in a manner which meets the needs of the business, while the furlough scheme pays for hours/days not worked. Employers can only use the flexible furlough scheme for employees who have previously been furloughed before the 1st July 2020 on the original scheme for the minimum period of 3 weeks.
1st August 2020 – The CJRS grant will continue to pay 80% of furloughed employees wages capped at £2500 for the hours an employee is on furlough, but the employer will be required to pay Employer National Insurance and pension contributions for the hours an employee is on furlough.
1st September 2020 – The CRJS grant will pay 70% of wages up to a cap of £2187.50 for the hours an employee is on furlough. Employers will have to contribute the additional 10% to top up the employee’s furlough pay to ensure they continue to receive 80% of their wages up to a cap of £2500, for the time they are furloughed. Employers will continue to pay ER NICs and pension contributions.
1st October 2020 – The CRJS grant will pay 60% of wages up to a cap of £1875 for the hours an employee is on furlough. Employers will have to contribute the additional 20% to top up the employee’s furlough pay to ensure they continue to receive 80% of their wages up to a cap of £2500, for the time they are furloughed. Employers will continue to pay ER NICs and pension contributions.
31st October 2020 – The Original furlough scheme and the flexible scheme was ended to be replaced by an extended furlough scheme.
1st November 2020 – The new extended Job Retention scheme begins and is more generous then the scheme has been from September 2020 to date and is more in line with the support available during August 2020. The Job Support Scheme is postponed until December 2020.
5th November 2020 – The Chancellor announced that the CJRS will be further extended until 31st March 2021 and that the terms of the scheme will be reviewed in January 2021. The Job Support Scheme is postponed until further notice and the Job Retention Bonus will no longer be paid in February 2021 and instead will be deployed at an ‘appropriate time’ in the future.
17th December 2020 – The Chancellor announced that the CJRS will be further extended until 30th April 2021 with the government continuing to pay 80% of wages until the end of the Scheme, i.e. the government contribution will not be reduced at the end of January 2021. The Chancellor has also confirmed that the Budget will take place on 3 March 2021 and this will deliver the next phase of the government’s plan to tackle the virus and protect jobs.
3rd March 2021 – The Chancellor announced that the CJRS will be further extended until 30th September 2021 with the government continuing to pay 80% of wages in May and June 2021. This will fall to 70% in July and 60% in August and September 2021.
Q. Does Placing Employees’ on furlough prevent the employer from making them redundant?
A. No. The purpose of the furlough scheme is to provide employers with an alternative to having to make compulsory redundancies if their businesses are affected due to COVID19 and Government restrictions. However, if it becomes evident that there is a strong Business Case for redundancy there is no requirement to wait until the end of the furlough scheme before commencing a consultation process for making compulsory redundancies and issuing notice of redundancy thereafter.
Q. If I have issued notice to a furloughed worker can I continue to claim from the CJRS grant whilst the employee is serving their notice?
A. Yes, for November 2020, but not thereafter.
Originally, HMRC confirmed that employers can continue to claim from the CJRS grant for an employee while they are serving a statutory or contractual notice period, however, on 13th November 2020 the 4th Treasury Direction updated this and it now states ‘For claim periods starting on or after 1st December 2020, you cannot claim for any days on or after 1st December 2020 during which the furloughed employee was serving contractual or statutory notice period’. This includes people serving notice of resignation.
Q. How much do I pay a furlough worker while they are serving their notice?
A. This is quite a complex question and it is recommended to seek advice before making any payments. If the employee’s notice is the same as the statutory minimum notice period, then their notice pay is protected and they should receive their normal contractual pay and not the reduced furlough pay.
However, the employer is still able to recover a percentage of the employee’s wages for notice periods through the CJRS grant up until 30th November 2020, and will just be required to ‘top up’ the difference to ensure the employee received 100% of their contractual wages. From the 1st December 2020 the employer will no longer be able to recover any notice pay from the CJRS grant.
If the employee’s notice is 1 week or more greater than the statutory minimum notice requirements, then technically this protection of notice pay does not apply so you could pay contractual notice at the furlough rate.
However, although employers are technically able to follow this rule it seems counterintuitive to pay employees less than their contractual pay during their notice period during the unprecedented time where employees have been willing to forgo part of their pay in an attempt to help their employers remain solvent and retain their jobs. It could be argued that paying anything less than their contractual pay is a breach of contract and a breach of trust and confidence if it was not made clear in the furlough agreement that it could impact their notice pay, so I advise you proceed with caution if consider paying less than contractual pay during notice.
Q. Does furlough pay change how redundancy pay is calculated?
A. No, redundancy pay must be calculated based on their normal contractual pay not the pay the employee have been receiving whilst on furlough.
Q. The company has work on the books but due to continued Government restrictions it is difficult to predict when this work will resume, what options do I have after the Government furlough scheme ends in April 2021?
A. There are several options available after furlough. If or when the furlough scheme comes to an end it may be replaced with the proposed Job Support Scheme which was due to begin in December 2020 but has been temporarily replaced with the extended CJRS, which may be a viable option if you have some work (at least 20% of their normal contracted hours) available.
You may also want to consider asking if any of your staff would consider voluntary redundancy or look at making compulsorily redundancies, however, this may not be an ideal solution if restrictions are lifted, as you may not have the staff capacity to deal with the available workload.
You could, if you have to contractual right to do so, place your staff on Lay Off or Short Time Working. This allows you to instruct staff not to come in to work and place them on unpaid leave (with the exception of Statutory Guarantee Pay (SGP) which is a maximum of £30 per day for 5 days in any 3-month period) if there is a temporary cessation in work. Although there is no limit to how long you can lay staff off for, staff could claim redundancy if it has been for 4 weeks in a row, or 6 weeks in a 13-week period. Therefore, this could leave you with similar staffing level concerns as if redundancies were made, if restrictions are lifted.
You could seek agreement with the staff to remain on furlough beyond the Government supported scheme and for them to continue to receive a percentage of their contractual pay.
Other options you may want to consider it offering unpaid sabbaticals, seek agreement with staff to temporarily reduce their salaries, offering part time working or job shares is there is still some work that can be done and finally, you could speak to your staff to see what ideas they propose to avoid compulsory redundancies and retain employment. The employee must freely agree to any changes so please seek advice before speaking with staff.
Q. I have some work but not enough to support current staffing levels. I am wanting staff to reduce their hours to avoid having to make compulsory redundancies, what do I have to take into consideration?
A. You cannot unilaterally impose changes to terms and conditions of employment without either the employee’s agreement or following a period of meaningful consultation. The first step would be to seek agreement, however if agreement is not reached or unlikely then it would be recommended that you draft a compelling business case for the proposed changes and arrange formal meeting to consult staff.
How long the consultation process will take would be dependant how many staff would be affected by the change. If agreement is still not reached after the consultation, there is the potential to enforce the change which means the employer would effectively dismiss the employee from their existing terms and conditions and immediately re-instate them on the new terms and conditions. This process is not without risk therefore seek advice before proceeding.
Q. Are there any important considerations before starting a redundancy process?
A. The main consideration is, of course, how to mitigate the risk of claims for unfair dismissal so planning is key. The first step is to build a compelling business rationale which clearly sets out the need to either make redundancies/restructure of change terms and conditions of employment. This business rationale will form the backbone of the consultation process and it will assist you in conducting discussions with staff and more importantly it could prove to be to most compelling piece of evidence in demonstrating there was a genuine need for these changes.
If the employer is proposing to dismiss 20 or more employees in a 90 day period, they will need to collectively consult with representatives of the affected employees for at least 30 days before the first of the dismissals take effect (45 days if 100 or more dismissals are proposed).
The CJRS has complicated selecting pools for potential redundancy, although the fact some employees have been furloughed may have highlighted their roles to be none essential, you should not automatically place all furloughed workers into the pool for selection. If you did it could open you up to risk for example certain groups such as older employers, woman and clinically vulnerable are more likely to have been furloughed due to childcare, shielding or medical reason and this could result in claims being brought for discrimination.
Finally, when selecting pools for redundancy you should consider the post and not the person. When considering selection criteria that is to be used should be as objective as possible, ideally with supporting evidence. Where selection criteria are subjective, where possible it should be scored by more than one person to reduce bias.
Q. Is there any support for employers beyond the CJRS?
A. Yes, on 8th July 2020 the Chancellor presented his ‘Plan for Jobs’ and as part of this he introduced the Job Retention Bonus to support employers who keep furloughed employees in employment. It was envisaged that a one-off payment of £1000 for every employee who they previously claimed for under the CRJS who remains continuously employed through to 31st January 2021. In the same announcement the Chancellor introduced the Kickstart Scheme which will allow employers to offer 6-month work placements to 16-24-year olds on Universal Credit, with the wages to be paid by the Government. Finally, for those businesses in the hospitality and tourism sectors with effect from 8th July VAT was cut from 20% to 5% and this will continue until 12th January 2021.
However, the Job Support Scheme is postponed until further notice and the Job Retention Bonus will no longer be paid in February 2021 and instead will be deployed at an ‘appropriate time’ in the future.
On 24th September 2020 the Chancellor announced further support for businesses and employee. He has extended the VAT cut for hospitality and tourism sections to 31st March 2021 and businesses that have borrowed money through the Government’s loan scheme will be given more time to repay the money.
In the announcement on the 31st October 2020, as well as extending the CJRS it was announced that business premises forced to close in England are to receive grants worth up to £3000 per month under the Local Restrictions Support Grant.
Coronavirus Job Retention Scheme FAQs
Q. How long will the CJRS continue for?
A. The CJRS was originally scheduled to finish at the end of June 2020. It was then extended several times. Most recently, it was announced on 3 March 2021 that the scheme would be extended until 30 September 2021.
Q: What is a furloughed worker?
A: It is not a term that is written into UK law and has been created by the Government to describe those workers who are part of the COVID19 Job Retention Scheme. Under the original scheme, they are workers who are paid via PAYE, but are temporarily instructed by their employer to cease all work in relation to their employment by reason of circumstances arising as a result of coronavirus or coronavirus disease. An employee has been “instructed by the employer to cease all work in relation to their employment” only if the employer and employee have agreed in writing (which may be in an electronic form such as an email) that the employee will cease all work in relation to their employment.
The introduction of the Flexible Furlough Scheme on 1st July 2020, allowed more flexibility and employers were able to bring back workers for any amount of time and any shift pattern, whilst still being able to claim a CJRS grant for the hours they are not in work. To be eligible for the grant, employers must agree with their employees any new flexible furlough arrangement and confirm the agreement in writing.
The extended furlough scheme commences on 1st November 2020 and any employee who is on an employer’s PAYE payroll by 23:59 30th October 2020 (meaning RTI submission notifying payment for that employee to the HMRC must have been made on or before 30th October 2020) will be eligible. The employee can be fully furloughed or flexibly furlough and do not need to have been furloughed previously to be placed on furlough under the extension.
Q: What if I have more than one qualifying PAYE scheme?
A: the employer must make a separate claim in relation to each scheme and the amount of any payment will be calculated by HMRC separately in relation to each scheme.
Q: How do I claim the money?
A: The ability to furlough employees under the Coronavirus Job Retention Scheme has been operational since 20th April and the online service you’ll use to claim along with details of what you’ll need to make a claims is now available here. For help with this, you can follow the HMRC’s step-by-step employer guidance document. You will need to make any payments yourself and will be reimbursed. You will only be able to submit one claim every 21 calendar days, claims can be backdated to 1st March 2020 under the ‘old scheme’. The deadline to make a claim under the ‘old’ scheme is 31st July.
After 1st July, you cannot submit claims that cross calendar months. Therefore, if you have staff whose furlough period spans June and July, you must submit two separate claims, even if the furlough is continuously. Claim periods starting on or after 1st July must start and end within the same calendar month and last at least 7 days (unless you are claiming for the first or last few days of a calendar months and you have already claimed for the period ending immediately before it in the previous month or will claim for the period ending immediately after it in the following month).
Q: What if I cannot afford to pay any salary to these workers whilst waiting for the grant?
A: Visit here for more details of support available to businesses during this time.
Q: How much can I claim and what are the key dates?
A: Broadly speaking from 1st July you will claim a pro rata’d amount of 80% of salary, based on the proportion of hours not worked out of the employee’s normal working hours.
Included within the grant are wages, deferred wages (so long as they are not deferred to be paid on condition of the Job Retention Scheme paying out), past overtime, fees and compulsory commission. Not included within the grant are anything which is not “regular salary or wages’’ so discretionary bonuses/commission, performance related bonuses, any conditional payments (e.g. where a threshold must be met or conditional on the Job Retention Scheme paying out), tips and non- financial benefits such as benefits in kind (i.e. the value of health insurance or a car).
The new scheme originally periodically reduced the amount an employer can claim from the grant with the intention of ending the scheme completely on 31st October. In July employers could continue to be able to claim for 80% of the workers regular salary and the associated Employer National Insurance Contributions and minimum Automatic Enrolment employer contributions, however from 1st August the government still covered the cost of wages, but the employer was asked to pay Employer National Insurance and pension contributions. In September the government dropped its contribution to 70% of wages, with the employers having to contribute the other 10% (if still paying staff 80% of their wages rather than topping up to 100%), on top of the national insurance and pension contributions. In October, this changed again, with the government’s contribution dropping to 60% and employers contributing the remaining 20%.
Under the extended furlough scheme, this will operate in a very similar way to how the scheme was back in August. For hours not worked by the employee, the government will pay 80% of wages up to a cap of £2500. The employer will pay for hours worked in the normal way as well as being responsible for the NICs and pension contributions.
Q: How long do employees need to be furloughed?
A: Prior to 1st July, employees on furlough must have been furloughed for a minimum of 3 weeks (21 calendar days). From 1st July, you will be able to bring back previously furloughed employees for any amount of time and on any pattern of work, this would be dependent on the needs of the business and agreed with the employee and claim a grant for the hours not worked, but the reference period must be for a minimum of 7 calendar days.
Q. Can I still have people on furlough full-time?
A: Yes, you can continue to have workers furloughed full time.
Q: What do businesses need to do immediately?
A: Contact your staff and discuss the potential return from furlough and the hours you are proposing or the continuation for their full furloughed status. Also, discuss if they have any commitments which may affect their availability i.e. childcare responsibilities or having to care for a vulnerable adult, issues regarding public transport etc. Confirm any agreed hours in writing (which may be in an electronic form such as an email) retaining all written agreements on your files for a minimum period of 5 years. This process should be subject to “meaningful consultation” meaning you should talk to your workers and gain their verbal and written agreement. In the context that their other options may be lay off, short time working without additional pay or even redundancy, it is highly probable that most workers will agree.
The key areas to cover in seeking your workers’ agreement are:
What change you are proposing
Why you are proposing to make that change
When that change will take effect
Who is likely to be affected by that change and for how long that change will be in place?
If you don’t engage your workers, then there is the theoretical risk of breach of contract or constructive dismissal claims. If you have a recognised trade union or employee consultation group, do check the terms of any collective agreements that are in place and contact Moorepay for advice. Trade unions were involved in creating the scheme and therefore are likely to be broadly supportive. Moorepay have the relevant letters and advice to support you with either the notification or agreement process.
If you are a HR Services customer, please call the usual number for advice or review the HR Hub for relevant template letters. If you are not a HR Services customer, please call us on 0345 184 4615 selecting option 1.
Q: What should I do if I am unsure whether I have the relevant clause to just notify employees of the changes?
A: If you are an HR Services Customer you can contact the usual number for advice. You must ask the employees to accept the changes proposed in writing and then record the relevant recorded documentation on your Company files for a minimum of five years.
Q: What do I do if someone doesn’t agree to being furloughed?
A: If they do not agree to being Furloughed your options (with the relevant contractual right) are lay off or short time working (which may attract statutory guarantee pay not covered by the COVID-19 Job Retention Scheme), or redundancy which (if the employee has more than two years’ service) may attract a redundancy payment (also not covered by the COVID-19 Job Retention Scheme). Please take advice on this question before taking any action.
Q. What if I have not furloughed staff under the current scheme but after June, I find there is not sufficient work to return staff full time?
A: Unfortunately, you will not be eligible to utilise the new scheme and your options (with the relevant contractual right) are lay off or short time working (which may attract statutory guarantee pay) or redundancy which (if the employee has more than two years’ service) may attract a redundancy payment. Please take advice on this question before taking any action.
Q: Does it apply to zero hours staff?
A: Yes, it does. Obviously, you are not obliged to offer any work to people working on a zero hours contract however you must note that this scheme has been brought in to protect workers paid through PAYE. Please see the answer below on what to pay a furloughed worker for more details on Zero Hours.
Q: Does the COVID-19 Job Retention Scheme apply to “Workers”?
A: There are different types of workers and we have listed those and our view against each here:
Agency workers engaged under the Swedish Derogation who are not now working and would otherwise be laid off due to the coronavirus emergency are within the scope of the COVID-19 Job Retention Scheme. Workers whose hours have merely been reduced will not qualify.
PAYE workers engaged via staffing companies and paid under the PAYE regime. The suggestion is that anyone paid under PAYE will be covered. The proposals do, however, raise the question of how a staffing company would ensure that furloughed agency workers do not do paid work elsewhere during the furlough period. The COVID-19 Job Retention Scheme is only available for agency workers who are not working elsewhere.
Umbrella workers paid under the PAYE regime are within the scope of the COVID-19 Job Retention Scheme on the basis that they are “employment businesses” (which appears to draw them into the Conduct of Employment Agencies and Employment Businesses Regulations regime). Note that the umbrellas will not be able to deduct any administration fee etc. from the furlough payment.
PSC contractors inside IR35 probably are within the scope of the COVID-19 Job Retention Scheme, subject to a director being able to furlough themselves and being prepared to close their business. We recommend you check with HRMC.
PSC contractors outside IR35 are possibly within the scope of the COVID-19 Job Retention Scheme in respect of any employed earnings declared, but this may be a negligible amount (assuming dividend income will not be included in the calculations). We recommend you check with HMRC.
Note that individuals need to have been on payroll on or before 19th March 2020 which were notified to HMRC on an RTI submission on or before 19th March 2020.
Q: Does the COVID-19 Job Retention Scheme apply to “Self Employed Sub-Contractors”?
A: No. The government have announced separate provisions for the self-employed under the coronavirus (COVID-19) Self-employment income support scheme, further details on that scheme can be found here.
Q: What about company directors?
A: Company Directors, if salaried, can be furloughed. They can still perform their statutory duties, but not other work for the company. In practice this will need completed via a formally adopted resolution of the Board of Directors, a formal note in the Company records and written notification to the Director(s) in question with all written records retained on file for a minimum of 5 years.
Q: What if an employee was sick on the day I furloughed them?
A: Furlough does not begin until the current period of sickness has ended.
Q: What if a furloughed worker becomes unwell after they have been furloughed?
A: The advice at this stage is the normal rules in relation to incapacity for work will apply for employees and workers. That said, employees do not qualify for SSP if they are furloughed as part of the coronavirus job retention scheme. Isolation or fit notes are now able to be obtained from NHS 111 online. If an employee or worker who has not been furloughed provides you with an isolation note, then they should move onto SSP, which is payable from day 1. Based on the known advice and payments now available under the Job Retention Scheme, practically speaking it is unlikely a Furloughed Worker will advise you of their requirement to self-isolate or even if they become sick.
Q: Do furloughed workers still accrue holidays?
A: Yes, as they are still employed their contractual rights including holidays continue as normal. When they are working reduced hours under flexible furlough, they would continue to accrue holidays based on their contract hours not on their reduced hours.
Q: Can an employee carry over holidays that were unused whilst they were furloughed?
A: The government has introduced a temporary new law to deal with the disruption of COVID 19 in relation to holiday accrual. Employees and workers continue to accrue leave as per their contract and can carry over up to 4 weeks’ paid holiday over a 2-year period, if they cannot take holiday due to coronavirus.
Q: Can I allow a furloughed worker to take holidays during the time they are furloughed?
A: If they have accrued the holidays in question you can allow them to take it, subject to payment details below. We recommend you do not approve the un-accrued part of the holiday request. Employers do have flexibility to restrict when leave can be taken if there is a business need. This applies for both the furlough period and the recovery period. It is possible to agree to vary holiday entitlement as part of the furlough agreement, however almost all workers are entitled to 5.6 weeks of statutory paid annual leave each year which they cannot go below.
Where an employee is flexibly furloughed any hours taken as holiday during the claim period should be counted as furloughed hours rather than working hours.
Q: Can an employer require a furloughed Worker to take holidays?
A: Subject to Company policy and based on the current employers guidance (which is currently silent on this point) yes, an employer can do this by giving the employee notice of the day or days on which leave is required to be taken and must be given twice as many days in advance of the earliest day specified in the notice as the number of days to which the notice relates.
For example, if the employer requires the worker to take one week’s annual leave, it must give the worker at least two weeks’ advance notice. It is important to say it is unclear from the guidance whether employers can require workers to take annual leave during periods of furlough. When that is known the answer to this question may or may not change.
Q: Can an employer cancel a Furloughed Workers’ pre-booked holidays?
A: Subject to a Company policy yes, an employer can do this by giving the employee notice of at least the same length as the period of leave to be cancelled. For example, if the employee has booked a period of four days’ annual leave, the employer must give at least four days’ notice of the cancellation.
Q: What about bank holidays?
A: If an employee/worker usually works bank holidays then the employer can agree that this is included in the grant payment. If the employee usually takes the bank holiday as leave, then the employer would either have to top up their usual holiday pay to 100% normal rate of pay or give the employee a day of holiday in lieu (paid at 100% normal rate of pay).
Q: What should holiday for furloughed workers be paid at?
A: The normal rules in relation to holidays, holiday accrual and holiday pay (note above a temporary update to carry over) will apply for employees and workers, meaning you should top up their pay to 100% their normal holiday pay and reclaim 80% under the government grant for those workers who have been Furloughed. For calculating the normal rate of pay where the pay varies, the employers’ guidance is aligned to the Working Time Regulations which requires it to be calculated based on the average pay received by the employee in the previous 52 working weeks. Therefore, if a furloughed employee takes holiday, the employer should pay their usual holiday pay in accordance with the Working Time Regulations.
Q: Can an employee do any work while furloughed?
A: From 1st July, they have been able to work some hours / days as agreed and furloughed to the remainder, for the hours you are claiming as furlough hours they must not carry out any work. This remains the case for the extension of the furlough scheme.
Q: What about employees on unpaid leave?
A: If an employee was enjoying an unpaid sabbatical or other period of unpaid leave on 28 February 2020 Furlough does not begin for that person until expiry of the period of leave agreed or contemplated at its commencement or, where the duration of the leave was uncertain on the 28th February 2020 because its duration is determinable by reference to a particular circumstance, completion of a particular purpose or occurrence of a specified event, the ending of the circumstance, completion of the purpose or occurrence of the event. No claim may be made in respect of an unpaid sabbatical or other period of unpaid leave of an employee beginning before or after 19 March 2020 (whether agreed or otherwise arranged conditionally or unconditionally on, before or after that day).
Q: What if an employee is clinically extremely vulnerable?
A: The employee is strongly advised to work from home because the risk of exposure to the virus may be significantly higher. If they cannot work from home, then they should not attend work. The employee should receive a formal shielding letter as evidence that they are advised to shield. You may want to speak to your employee about taking on an alternative role or changing their working patterns temporarily to enable them to work from home where possible.
If you cannot make alternative arrangements, the employee can be furloughed under the CJRS. You should have a conversation with your employee about whether this is possible. As the employee is being advised not to attend work, they may be eligible for Statutory Sick Pay (SSP) or Employment Support Allowance (ESA). Members of the household who are not clinically extremely vulnerable should continue to attend work if they are unable to work from home.
Q: What if an employee works for another employer as well?
A: If your employee has more than one employer they can be furloughed for each job. Each job is treated as separate and the cap applies to each individual employer. In practical terms this means an employee can be furloughed in one job whilst still working in the other job. It is important to know employees can start a new job when on furlough (meaning they might end up earning 80% of the old salary and 100% of a new one). The guidance expressly allows for this and does say it has to be allowed under the old employment contract, but we presume the old employer can waive that. You should discuss with your employee what you expect of them regarding availability if they have taken up additional work under this current furlough scheme.
If your employee has had multiple employers over the last year, has only worked from one employer at any one time and is being furloughed by their current employer, they should not be re-employed by any of their former employers for the purposes of placing them on furlough.
Q: What if an employee is on, or due on, Maternity Leave?
A: The same principles apply for all parental leave types but if an employee is eligible for Statutory Maternity Pay (SMP) or Maternity Allowance then the normal rules apply, and they are entitled to 39 weeks of SMP or allowance. Employees who qualify for SMP are still eligible for 90% of their average earnings in the first 6 weeks followed by 33 weeks of SMP or average weekly earnings, whichever is lower. If you offer a company or enhanced contractual pay to women on Maternity leave, this is included as a wage cost you can claim through the scheme. If they are returning from maternity leave (or shared parental leave, adoption, paternity or parental bereavement leave) after the 1st November 2020 they can be furloughed, as long as the employee in question were on your PAYE payroll on or before 30th October 2020, as long as you made a PAYE RTI submission to HMRC between 20th March 2020 and 30 October 2020. If an employee wishes to end their family friendly leave early to enable them to be furloughed (with your agreement), this will need to give you at least 8 weeks’ notice of their return to work, but you can agree to a shorter notice, you will not be able to furlough them until the end of this notice.
If an employee is getting Maternity Allowance, as they did not qualify for maternity pay, they must not be paid furlough pay. If the employee wants to be placed on furlough, they must contact Jobcentre Plus to stop their Maternity Allowance.
Q: What about apprentices?
A: You must pay your Apprentices at least the Apprenticeship Minimum Wage, National Living Wage or National Minimum Wage (AMW/NLW/NMW) as appropriate for all the time they spend training. This means you must cover any shortfall between the amount you can claim for their wages through this scheme and their appropriate minimum wage. Apprentices on Furlough can continue their training (this and assessment to take place remotely with extensions/breaks granted and recorded wherever possible) as long as it does not provide services or generate revenue for their employer. HM Treasury has confirmed it will not be pausing the apprenticeship levy payments for employers.
Q: Can I claim the NICs and AE Employer Contributions?
A: The Employer must pay to the HMRC the employer NICs on the full amount paid to the employee, including any CJRS grant and employer pension contributions.
Q: Do furloughed employees pay Tax and National Insurance?
A: Employees will be liable to Tax, National Insurance Contributions and Auto Enrolment pension contributions, except where they have opted out of auto enrolment.
Q: Do I have to pay the National Minimum (NMW) or National Living Wage (NLW)?
A: Furloughed workers do not work any hours therefore must be paid for the lower amount of 80% of their wage, or £2,500 a month even if, based on their normal hours, this would fall under either NMW or NLW. However, if training is undertaken whilst they are Furloughed e.g. online courses, then they must be paid NMW or NLW for the time spent training, even if this is more than the 80% of wage that will be subsidised.
Q: What if after payment and reimbursement of the grant I find I have overpaid wages, what can I do?
A: If after payment and the relevant reimbursement of the grant a business finds it has over paid wages, a payroll correction is possible in the following period. For example, an over-payment in March payroll can be adjusted in April payroll. This would ensure that employees receive the correct furlough payment over the 2-month period and as such your claim to HMRC would be accurate.
Q: What is the Job Retention Scheme for Contingent Workers?
A: This is a separate scheme to support temporary, agency and consultancy, etc. staff working in the public sector. It has a broader application than the Job Retention Scheme and if you are managing or supplying such workers, you should take advice on this.
Finally, as part of the HMRC’s commitment to transparency they have took the decision to publish information about employers who claim for periods starting on or after 1st December 2020 on GOV.UK. They will publish the employer name, an indication of the value of the claim and the company number (for companies and LLPs).
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An HR/Employment Law Advisor, Jeanette has been involved in HR for over 10 years. She started out as a standalone HR and Payroll Officer for a manufacturing company. After 6 years, she chose to move to the HR advisory service to offer a personal service and support to small and medium business across all sectors.
With this in mind, Jeanette provides a wealth of knowledge and pragmatic advice in a clear and simple way to assist clients achieve their aim whilst minimising risk and disruption. The client and their business needs are always at the heart of Jeanette’s advice.