Guidance for members on extended CJRS furlough scheme

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1) How do we choose which staff to furlough?

  1. Consider which staff you want to furlough and which staff you will need to keep in the business if you are remaining open. Employers will want to ensure that they are retaining the skills they need within the business at this most challenging time. You will therefore need to identify those with the specific skills you need to retain in work. You must be careful not to discriminate against staff and therefore keep a clear record of the reason you are choosing to furlough some staff and not others. If more than 20 staff will be affected, you may need to comply with collective consultation requirements so please contact the employment team for assistance.
  2. Have a discussion with your staff about furlough and then consult with staff on an individual basis.
  3. You may want to ask for volunteers to be furloughed and if there are too many volunteers you may want to prioritise vulnerable staff for furlough, such as those who are suffering with a disability, are over 70 or pregnant.
  4. You may use our template letter to give to any employees you wish to “furlough” and ask them to sign and date the agreement where possible. This can also be done by email acceptance if it is not possible to physically sign the agreement. If entering into new flexible furlough arrangements, the agreement should record in writing what has been agreed with the employee and although they do not need to confirm their agreement in writing to meet the scheme rules it will be advisable for them to do so. The agreement should specify the main terms of the arrangement and should be entered into before the claim period starts.
  5. If employees have already been furloughed and you are concerned about whether the wording complies with the requirements please contact the employment team for assistance.
  6. If you are paying staff the additional 20% of salary on top of the 80% under the furlough scheme, it would still be safer to obtain staff consent in writing to be furloughed and to cease all work for you, in line with the Treasury Direction. If you are not intending to pay the additional 20%, you will need staff to agree in writing to accept a 20% reduction in pay and to be furloughed and cease all work for you.

2) Which employers can access the Scheme?

All UK businesses in the UK can access the Scheme whether or not you have used it previously and whether the business is open or closed.

  1. It is expected that publicly funded organisations will not use the Scheme but partially publicly funded organisations may be eligible where their private revenue has been disrupted.

3) How will the Scheme operate?

  1. The employer should discuss with staff and make any changes by agreement, designate affected employees as ‘furloughed workers’ and notify them of this change, setting out the main terms and conditions on which they will either do no work or will work less than their usual hours. This should be done in writing before the claim period starts and the employer should keep a record of that communication for five years. As set out above it will be safer for the employee to confirm agreement to this in writing (and this will be required if the contract does not allow for them to be laid off without pay).

4) Does and employer have to top up the 80%?

As with the previous Scheme, and employer is not obliged to top up wages to 100% but may choose to do so.

5) How should employers calculate the claim for employees previously eligible for CJRS?

  1. The employer will submit information to HMRC about the employees that have been furloughed and their earnings through an online portal.
  2.  For employees that meet the eligibility criteria, and were previously furloughed, employers must use the same calculations for calculating reference pay and usual hours as CJRS.
  3. For an employee who meets the criteria of the extended Scheme but was not previously eligible for CJRS, the alternative calculations of reference pay and usual hours must be used. For all other employees, employers must use the CJRS calculations for calculating reference pay and usual hours.
  4. HMRC will then reimburse the employer the relevant government contribution. The employee should continue to receive 80% of wages, subject to the cap, for periods on furlough. While on furlough, the employee’s wage will be subject to usual income tax and other deductions. 

Claim Periods

 November claims  Claim by 14 December  Amend by 29 December
 December claims  Claim by 14 January  Amend by 28 January
 January claims  Claim by 15 February  Amend by 1 March

If flexible furloughed, employers must keep a written record of how many hours their employees work and the number of hours they are furloughed (for example, not working), for six years.

6) Calculating usual hours for an employee working variable hours who was not previously eligible for CJRS

If an employee was not eligible for CJRS then the usual hours will be the average hours worked between (these dates are inclusive):

  • The start date of the 2020 to 2021 tax year, (for example, 6 April 2020)
  • The day before their CJRS extension furlough periods begins

Example

Sam has been employed by A Ltd since April 2020. A Ltd was not eligible to claim a CJRS grant for Sam. Sam is paid weekly. Sam has always been contracted to work a fixed number of hours per week (30 hours), and their pay does not vary according to the number of hours they work.

For the claim period 16 November 2020 to 22 November 2020, Sam’s usual hours will be 30 hours, being the number of hours Sam was contracted for on 25 October 2020, the end of the last pay period ending before 30 October.

7) What is the relevant date for salary?

If the employee (widely defined) worked for you on 19 March 2020 and you submitted an RTI submission on or before then, then it is the salary at that date – if not then it is 30 October 2020.

8) Can I claim for an employee serving contractual or statutory notice?

An employer cannot claim for any days on or after 1 December 2020 during which the employee was serving a contractual or statutory notice period for the employer (this includes people serving notice of retirement or resignation).

For periods pre-1 December 2020 it provides that claims may be made if the employee is serving statutory notice only. We are waiting for clarification regarding contractual notice.

9) Which employees can be furloughed?

You can claim for employees on any type of employment contract including full-time, part-time, agency, flexible or zero hour contracts.

Employers can claim for employees who were employed and on their PAYE payroll on 30 October 2020. The employer must have made a PAYE Real Time Information (RTI) submission to HMRC between the 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee.

Employers will have flexibility to use the Scheme for employees for any amount of time or shift pattern, furloughing employees on either a full-time or part-time basis, and will be able to vary the hours worked in agreement with the employee.

10) Is there a minimum furlough period

No. Flexible furlough agreements can last flexible furlough agreements can last any amount of time and employees can enter into a flexible furlough agreement more than once.

Although flexible furlough agreements can last any amount of time, employers can only submit a claim for a minimum claim period of seven consecutive calendar days

11) Can an employee request to be furloughed?

An employee can ask for this, but it is entirely up to the employer as to whether they agree, subject to existing employment law and the obligation not to discriminate under the Equality Act 2010.

12) Can I rotate the employees who are furloughed?

Yes, but they must be furloughed (and therefore do no work for you).

13) Can employees do a bit of work for me whilst furloughed, for example to help provide urgent care?

No. During hours which employees are recorded as being on furlough, they cannot do any work for their employer that makes money or provides services for their employer or any organisation linked or associated with their employer.

Employees can:

  • Take part in training
  • Volunteer for another employer or organisation
  • Work for another employer (if contractually allowed)

14) Employees re-employed by their employer

  1. Employees that were employed and on the payroll on 23 September 2020 who were made redundant or stopped working for their employer afterwards can be re-employed and claimed for. The employer must have made a PAYE Real Time Information (RTI) submission to HMRC from 20 March 2020 to 23 September 2020, notifying a payment of earnings for those employees.
  2. Similarly, an employee who was on a fixed term contract, on payroll on 23 September, and that contract expired after 23 September can be re-employed and claimed for, provided that the other eligibility criteria are met.

15) Does the Scheme apply to those who are off sick?

The CJRS is not intended for short-term sick absences. If, however, employers want to furlough employees for business reasons and they are currently off sick, they are eligible to do so, as with other employees.

16) What about employees who are shielding or on long term sick leave?

  1. Employers can furlough employees who are shielding (“clinically extremely vulnerable”) or off on long-term sick leave.  

Please note: We are waiting further clarification regarding the situation where employees wish to be furloughed because they have caring responsibilities for someone who is shielding.

17) What about employees who become unwell while furloughed?

Furloughed employees who become ill, due to coronavirus or any other cause, must be paid at least Statutory Sick Pay (SSP). As under the CJRS previously, it is up to employers to decide whether to move these employees onto SSP or to keep them on furlough, at their furloughed rate.

18) Employees with caring responsibilities

Employees who are unable to work because they have caring responsibilities resulting from coronavirus (COVID-19) can be furloughed. For example, employees that need to look after children can be furloughed but there is no obligation to do so. See 15 above.

19) What about employees returning from or going on statutory leave?

In line with other employees, claims for full or part time employees returning from statutory leave after 28 February 2020 should be calculated against their normal salary (plus any pay rises they should have received during the statutory leave), before tax, not the pay they received whilst on statutory leave. There is a specific calculation for those on pay which varies.

Statutory leave includes maternity leave, paternity leave, shared parental leave, adoption leave, sick leave and parental bereavement leave.

If an employee is on furlough during a time when their statutory maternity etc pay would be calculated and they have a lower salary than normal as a result, for the purposes of calculating the statutory pay their actual salary before reduction to the furloughed amount will be used. This also applies to the other types of family leave set out above.

20) Can I make an employee redundant who is furloughed?

There is nothing to prevent an employee being made redundant whilst on furlough as a business may conclude that it will not recover or not recover within the timescales of the CJRS. Redundancy must be calculated according to normal pay and not furlough pay. Employees serving statutory notice can be claimed for and HMRC is going to issue further guidance at the end of November in relation to notice periods and whether, from 1 December 2020, employers can claim for employees when they are on statutory or contractual notice.

21) What about employees on unpaid leave?

They cannot be placed on furlough.

22) Do staff have to be paid at least the National Minimum Wage whilst furloughed?

Time spent not working need not be paid at the National Minimum Wage or National Living Wage, so if 80% of the wage is less than this for the furlough period that is acceptable. However, if during this time the employee does any training for the employer, they must be paid at least the National Living/Minimum Wage for time spent on this training. Wages for those whose pay does not vary will be based on their wages in their last pay period. This means those who were on the National Minimum Wage during their furlough leave may receive less than 80% of the current National Minimum Wage. However, once they return to work their pay must be increased in line with the increases on 1 April 2020.

23) What about Income Tax and Employee National Insurance?

Wages of furloughed employees will be subject to Income Tax and National Insurance as usual.

24) What if there has been a TUPE transfer?

TUPEd employees are eligible for furlough if they: 

  • transferred from their old employer to their new employer on or after 1 September 2020
  • were employed by either their old employer or new employer on 30 October 2020
  • are on a PAYE Real Time Information (RTI) submission to HMRC, by their old or new employer between 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee

25) Can a furloughed employee work elsewhere?

Employees can work elsewhere provided the existing contract allows that and they do not work indirectly for the employer or for any organisation connected to the employer during hours when they are designated as furloughed. The contract of employment may however provide that an employee must not work elsewhere or should only do so with the consent of their employer. The employee would be well advised to seek permission to do so, as their normal duties of confidentiality etc to their employer will continue to apply.

26) What about employees with more than one job

Employees could be furloughed from both jobs and that the cap of £2500 per month would apply to each job separately. Employees can be furloughed in one job and receive a furloughed payment but continue working for another employer and receive their normal wages. They should not however work indirectly for the employer or for any organisation connected to the employer.

27) What about company directors?

If a company decides that it wishes to furlough a director who is paid a salary under PAYE or a director who pays themselves once a year where most revenue is taken as dividends this should be done via:

  1. A formal resolution adopted by the Board of Directors
  2. It should be noted in the company records and communicated in writing to the director
  3. The director should not do any work for the company save for complying with statutory duties relating to the filing of company accounts or provision of other information relating to the administration of the director’s company. What they can do is therefore incredibly limited. They can pay employees and make claims under the furlough scheme
  4. They should not do work of a kind they would carry out in normal circumstances to generate commercial revenue or provides services to or on behalf of their company

This also applies to salaried individuals who are directors of their own personal service company (PSC).

28) What about holiday whilst furloughed?

Employees still accrue holiday in the normal way whilst furloughed and they can take it. Employers can require employees to take holiday during furlough provided they give them enough notice (double the length of the holiday). They can also cancel employees’ holiday if they give them at least as much notice as the length of the holiday. Employers should explain their reasons to employees.

Any holiday taken during furlough should be paid at the employee’s normal rate of pay ie if the employee is receiving 80% of their normal pay this would need to be topped up by the employer.

All employees or workers are entitled to at least 5.6 weeks holiday per year under the law and employers cannot reduce this.

If it’s not possible to take all holiday within the leave year due to COVID-19 it may be possible to carry it over for up to two years if they have been prevented from taking it due to the pandemic. However, the guidance makes it clear that those on furlough are expected to take their holiday unless their employer cannot afford to pay them their full wages because of their financial situation.

Those on sick leave and maternity/adoption/shared parental/paternity leave cannot be asked to take holiday

29) What about bank holidays whilst furloughed?

The employee guidance and the guide to how to claim 80% of wages state that:

"If an employee usually works bank holidays then the employer can agree that this is included in the grant (furlough) 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% of wages) or give the employee a day of holiday in lieu."

30) How do we end a period of furlough?

Look at the letter you sent employees confirming furlough and comply with what it says about how they will be brought back 

  • The Scheme itself includes no particular format or period of notice but it will be best to give employees as much notice as possible to allow you time to discuss any concerns that they may have
  • Clarify when they will be expected to return and say that you reserve the right to place them back on furlough at a later date
  • If making use of flexible furlough you will need to reach a new agreement about working hours
  • It would also be useful to flag up any health and safety measures you will be taking on their return to work and invite them to raise any concerns
  • Refer also to the work safely guidance for shops and any clinical guidance. You would need to do risk assessments and consult with workers about this

31) How do we choose who to bring back and what order to do this in?

  • Refer also to the work safely guidance for shops and any clinical guidance
  • You may decide to bring employees all back at once or you may wish to stagger it. Be mindful of discrimination issues
  • You could seek volunteers to return (but reserve the right to refuse any applications). If you do refuse any, clearly document the objective reasons for refusal
  • It would help this process if you engage with your employees at an early stage so that you know any particular concerns
  • If you then need to move to formal selection, you’d need to follow a fair and transparent process. Contact our employment team if you need advice on this
 

32) I am self-isolating am I entitled to sick pay?

Employees and workers may get Statutory Sick Pay (SSP), subject to eligibility criteria, from the first day they are absent from work if they are self-isolating because: 

You can also get SSP if both of the following apply:

33) I am clinically extremely vulnerable; do I have to go to work?

Government guidance is that if you are at high risk (clinically extremely vulnerable) from coronavirus, you should take extra steps to protect yourself. 

You should work from home if you can and your employer should support you to do this.

If you cannot work from home, you're advised not to go to work. You will get a letter advising you to stay at home which you can show to your employer as proof you're unable to go to work.

If you're unable to work, you may be eligible for Statutory Sick Pay (SSP), Employment Support Allowance (ESA) or Universal Credit.

Employers should be alive to the fact that if an employee raises concerns about health and safety in relation to coronavirus that they may have special protection under the law. Those people who are over 70, vulnerable because of an underlying health condition or pregnant may have protection from discrimination under the Equality Act 2010.

To discuss this in more detail, please contact our employment team.

34) I live in a household with someone who is clinically extremely vulnerable, do I have to go to work?

If you live in a household with someone who is high risk but you are not high risk yourself, the guidance is that you should continue to go to work if you cannot work from home.

35) I have caring commitments - my children are off school or vulnerable and I don’t want to go into work

An employer may agree to the employee being furloughed but they are not obliged to do so. 

The guidance states that:

People in the same household who are not clinically extremely vulnerable can still attend work, in line with the new national restrictions.

 

36) What if an employee does not want to go to work?

Some people might feel they do not want to go to work if they're afraid of catching coronavirus. This could particularly be the case for those who are at higher risk.

An employer should listen to any concerns staff may have and consider practical ways around the problem such as an extra car parking space or home working.

If an employee still does not want to go in, they may be able to arrange with their employer to take the time off as holiday or unpaid leave. The employer does not have to agree to this.

If an employee refuses to attend work without a valid reason, it could result in disciplinary action.

37) I am pregnant. What should I know?

You should not be treated unfavourably because of pregnancy.

Employers who have been notified of a pregnancy in writing have a duty to carry out a risk assessment for pregnant employees, although this need not be in writing. Where the risk can't be avoided, the employer must alter the woman's working conditions or hours of work. If they can't do this, they should offer her any alternative work. If none of this is possible, the employee be suspended with pay on maternity grounds. Read Maternity Action's advice on this.

The employer could seek the employee's agreement to being furloughed provided they were otherwise eligible. Guidance issued by the Royal College of Obstetricians and Gynaecologists says: "There is no evidence that pregnant women are more likely to get seriously ill from coronavirus but pregnant women have been included in the list of people at moderate risk (clinically vulnerable) as a precaution. The guidance for the clinically vulnerable remains in place and you should ensure you continue to follow the latest government guidance.

Pregnant women should follow the latest government guidance on staying alert and safe (social distancing) and avoid anyone who has symptoms suggestive of coronavirus. If you are in your third trimester (more than 28 weeks' pregnant) you should be particularly attentive to social distancing."

Read the guidance

38) Can I be penalised by my employer for not going in?

This will depend on the circumstances. If you are in a vulnerable group, you may be able to argue that any attempt by the employer to do this was discrimination under the Equality Act 2010 because of pregnancy/age/ disability.

If your employer is operating in an unsafe way, you may have additional protection as a whistle-blower or under health and safety protection, but this will usually only apply if you are treated worse than others or have been subjected to a detriment because:

  1. You have made a public interest disclosure (this would be more likely if it related to patient safety as opposed to staff safety) or
  2. The employer was really operating in a way that was a danger to health and safety. If they are following government guidelines this seems unlikely 

If you are raising health and safety concerns, it is generally better to do so in writing.

There is an implied duty in every employment contract for the employer to provide a safe working environment and a duty on an employer to take reasonable care for the health and safety of their employees. Employees also have a responsibility to tell their employer of any situation that would represent a serious and imminent danger to health and safety. There is protection from detriment and dismissal if this is done in an appropriate way.

39) What do I do if I have received a grant from CJRS that I'm not entitled to?

If you’ve made an error in a claim that has resulted in you receiving too much, you must pay this back to HMRC. You can tell HMRC about an overclaimed amount in your next online claim (or by phone if you have stopped claiming).

A new fact-sheet has been published in this regard:

Coronavirus Job Retention Scheme - receiving grants you were not entitled to

If you overclaimed a CJRS grant and have not repaid it, you should notify HMRC within the notification period.

The notification period ends on the latest of whichever date applies below:

  • 90 days after you receive the CJRS grant you’re not entitled to
  • 90 days after the day circumstances changed so that you were no longer entitled to keep the CJRS grant
  • 20 October 2020

HMRC has stated that innocent mistakes that they are notified of and that are repaid within the relevant time period won’t lead to a penalty. It is very important for the employer to keep good records of all payments made and hours worked, as well as any documents/details relating to the issue which led to the incorrect claim.

More information is available at the following sources and employers should keep track of any changes.

Welsh shielding guidance and your responsibilities as an employer: Coronavirus for the most up-to-date information. For more information regarding the position in Wales, please see Optometry Wales.

For members in Northern Ireland you can find out more about social distancing and vulnerable people on nidirect.gov.uk