COVID 19 UPDATE 29th APRIL 2020
I have waited a couple of weeks for my next update until the Covid Job Retention Scheme (CJRS) had bedded in. In this blog I am going to look at some of the issues which have been resolved and others which still remain unresolved.
Do you need a written agreement?
What the HMRC say is that there needs to be written evidence of an agreement however the agreement does not have to be in writing. So an oral agreement which can be evidenced in writing is sufficient. This might be in the form of an email which records the oral agreement and is then sent to the employee.
The CJRS is open at the moment for at least four months. The furlough period is a minimum of three weeks (21 days) and whilst the CJRS operates it is possible to be furloughed more than once.
The date changed for this and it now covers employees on the payroll as at 18th March 2020.
There are three requirements to qualify and all three must apply:
- The employee must have been instructed to cease all work
- The period in which all work ceases is 21 days or more
- The instruction is given by reason of circumstances arising as a result of coronavirus or coronavirus disease.
The third requirement is important as if the reason is not coronavirus then CJRS is not available.
In the last couple of weeks or so I have been asked about furloughing employees who wish to stay home to shield, look after children or as an alternative to garden leave. Whilst all these situations may qualify they will only do so if the three requirements are fulfilled. It would appear that some employers and employees are seeking to utilise the CJRS for reasons which take them outside of the scheme. It remains to be seen how closely this will be policed and how many employers HMRC will end up auditing.
Note those on unpaid sabbaticals cannot be furloughed until the sabbatical has ended.
One issue which I have yet to get to grips with is how the SSP regulations which now allow for payment of SSP to shielding employees square with the guidance which allows such employees to be furloughed whilst the direction makes it clear that where SSP is payable or the employer is liable for SSP at the time of furlough then the employee is not entitled to payment under the CJRS. This needs further clarification as I am aware of many employers who have furloughed shielding staff. I suspect that HMRC will not insist that such employees should have been on SSP rather than receiving a furlough payment if the employee otherwise qualifies.
An employer who inherits furloughed staff or who finds that staff need to be furloughed after a transfer can utilise the CJRS.
Working your notice
This is another interesting point. What happens if a disciplinary takes place during an employee’s furlough which leads to notice being given or that individual being placed on Garden leave. Should the employee go back onto full pay for the notice period? Statute makes it clear that an employee is entitled to a minimum period of statutory notice and is entitled to be paid in full for that period even if they are off sick and have exhausted their SSP entitlement. My present view is that an employee is entitled to be paid in full however the fact that the employee is furloughed will mean that 80% of the notice pay (subject to the cap) is recoverable under the CJRS.
Employees on furlough can go on holiday and if they do take holiday it must be paid at the contractual rate if it is WTR holiday. However as the employee is on furlough 80% of the pay (subject to the cap) is recoverable under the CJRS.
One final point not related to furlough. Having listened to a recent ELA podcast with Judge Shona Simon and Judge Brian Doyle it is clear that the Employment Tribunal system is under a lot of strain. A major takeaway from this was to ask anyone involved in ongoing claims to cooperate and try to resolve any disagreements without resorting to the Tribunal if at all possible.