Written by Brabners LLP
Coronavirus Job Retention Scheme: key updates
It has been 5 weeks since the Government unveiled the Coronavirus Job Retention Scheme (“the CJRS”), enabling employees and agency workers to be paid by their employer/agency whilst on furlough leave.
In that short space of time there have been 6 updates to the main guidance for employers, meaning that we are now onto the 7th version. The Government does not publicly announce when the guidance changes, so it is important for employers to regularly check for updates or, better still, sign up for notifications when the guidance changes.
In addition, the Government, HMRC and ACAS have all issued further guidance documents to help employers navigate the CJRS. Links to the guidance are at the end of this article.
One of the most helpful additional guidance documents is called “Work out 80% of your employees’ wages to claim through the Coronavirus Job Retention Scheme” and it provides examples of how to calculate employees’ pay for the purposes of making a claim under the CJRS.
CJRS online claim portal now open
On 20 April, the CJRS online claim portal went live.
HMRC has reported that in the first 4 days, over half a million employers made a claim and the total amount claimed was £4.45 billion.
HMRC have committed to paying within six working days of an employer submitting a claim, but state that employers should not contact HMRC unless they have still not received payment more than 10 working days after submitting their claim.
An employer can only make one claim during a claim period for each PAYE scheme which it operates. Each claim must include all of the furloughed employees on the relevant PAYE scheme, and HMRC has confirmed that employers cannot make changes to their claim once it has been submitted.
Since our last article, on 17 April 2020 the CJRS guidance was updated to state that employees will continue to accrue annual leave during furlough.
The guidance also confirmed that employees can take holiday whilst on furlough, with employers being able to claim 80% (subject to the £2,500 cap) under the CJRS.
The guidance (entitled “Work out 80% of your employees’ wages”) states that if a furloughed employee takes holiday, the employer should pay their “usual holiday pay” in accordance with the Working Time Regulations. The Working Time Regulations require holiday pay to be paid at the employee’s normal rate of pay or, where the rate of pay varies, calculated on the basis of the average pay received by the employee in the previous 52 working weeks. It is not clear whether furlough pay (which will be lower than the employee’s normal rate of pay, unless the employer is topping it up) should be taken into account for the purposes of calculating holiday pay, or whether calculations should be based on the employee’s (higher) pre-furlough pay. Employers and umbrella companies should be aware that the guidance states that the Government is keeping its policy on holiday pay during furlough under review, and we understand that updated holiday pay guidance may be issued shortly.
Changes to the CJRS guidance since our last article
A number of changes have been made to the CJRS guidance since our last article.
Importantly, whilst previous versions of the guidance referred to employers being able to claim for past overtime, fees and compulsory commission as part of furlough pay, the guidance now stipulates that those payments can only be claimed where they are “non-discretionary”. Essentially, this means that employers can only claim for payments such as overtime and commission where the employer is contractually bound to make those payments to the employee. It will be important for employers to carefully check the terms of employees’ contracts: references to “discretionary” commission, bonuses or overtime are likely to mean that such sums cannot be included in a claim under the CJRS.
In addition, since our last article, the CJRS guidance has been updated to confirm that employees on sick leave can be furloughed (as well as employees who are shielding or self-isolating). However, the CJRS is not intended for short-term absences from work due to sickness, and employers must remember that there is a 3 week minimum furlough period.
When an employee is on furlough, employers can only reclaim expenditure through the CJRS, not the SSP rebate scheme.
Given the regular updates (and sometimes significant changes) to the CJRS guidance, it is important that employers and umbrella companies keep themselves up to speed and that they check the latest version of the guidance before making any decisions in relation to furlough.
Treasury Direction: https://www.gov.uk/government/publications/treasury-direction-made-under-sections-71-and-76-of-the-coronavirus-act-2020?utm_source=07c67266-8869-4f71-a0c1-54e37c8411ba&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Employers’ CJRS guidance: https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme
Work out 80% of your employees’ wages: https://www.gov.uk/guidance/work-out-80-of-your-employees-wages-to-claim-through-the-coronavirus-job-retention-scheme
Step by step guide for employers: https://www.gov.uk/government/publications/coronavirus-job-retention-scheme-step-by-step-guide-for-employers
ACAS guidance: https://www.acas.org.uk/coronavirus/using-holiday
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership