Coronavirus job retention scheme extended by one month

Daniel Fowler
May 27, 2020

The Coronavirus Job Retention Scheme will now run until the end of June. This is likely to be the definitive guidance on how the CJRS works. David Reade QC argues that there is nothing to stop employers from trying to obtain explicit consent during or even after furlough has ended.

Employers will pay workers and reclaim the money from HM Revenue and Customs (HMRC) at the end of April.

While the ultimate decisions on who can be furloughed will rest with the employer, it must be discussed with the employee concerned. Employees who are unable to work due to caring responsibilities resulting from the COVID-19 situation may also be furloughed. How do I claim my pay from the Government? " "This includes wages, past overtime, fees and compulsory commission payments" (meaning contractual commission payments)". Acas has hastily also updated its guidance to reflect the need for a written agreement which the employer has to keep for five years. This includes taxable Benefits in Kind (for example, health insurance or a company car).

The Direction is an instruction to HMRC from the Chancellor setting out the rules of the scheme and is made under the powers conferred by sections 71 and 76 of the Coronavirus Act 2020.

The updated guidance makes it clear that employees can be furloughed multiple times.

More than nine million workers are expected to be furloughed, or put on state-paid leave, under the government's job retention scheme.

With regard to employees on long-term sick leave or those that are being shielded, it is at the employer's discretion as to whether they are furloughed. The guidance advises employers that if a non-furloughed employee becomes ill, needs to self-isolate, or needs to be shielded, an employer may qualify for the SSP rebate scheme, which enables the employer to claim up to two weeks SSP per employee.

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Clause 6.1 sets out the requirements for employees to be furloughed.

In particular, workers employed as of Feb 28th, but who were laid off or stopped working after then but pre-March 19th, are now eligible if the employer rehires and furloughs them. If both parties agree, the employer must confirm it in writing.

On behalf of the Association of Recruitment Consultancies, of which he is chairman, Mr Marlowe added: "However there is now clarity that the scheme applies to agency workers".

"Short term illness/ self-isolation should not be a consideration in deciding whether to furlough an employee".

A new qualifying date: The Treasury have made a decision to broaden the net in respect of which employees can qualify for the CJRS.

One option is to advise furloughed staff that they must tell you if they object to being furloughed and if they don't you will take it their silence as acceptance.

Employee transfers under TUPE and on a change in ownership: The Direction changes the previous HMRC guidance with respect to TUPE.

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