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Job Retention Scheme Guidance -The Latest Updates

on Friday, 24 April 2020.

Since our update last Friday on the Government's Coronavirus Job Retention Scheme (CJRS), the Government has issued new and updated guidance on 20 April and again on 23 April.

We have summarised some of the key developments to note:

Extension of Scheme

The CJRS is to be extended to the end of June 2020 and the guidance indicates that it "may be extended further if necessary".

Online Portal is Open

The online portal through which employers can apply to the CJRS opened on 20 April 2020.

Eligibility 

The latest guidance confirms that employers can only claim for furloughed employees that were employed on 19 March 2020 and who were on your PAYE payroll on or before 19 March 2020. It also includes a helpful summary table clarifying which recently hired/re-engaged employees can be claimed for under the CJRS.

Clarification of How To Furlough Employees

The latest guidance attempts to clarify how employees can be placed on furlough and states that employers must "confirm in writing to their employee" that they have been furloughed, and that the employee does not have to provide a written response. The guidance states that "if this is done in a way that is consistent with employment law, that consent is valid for the purposes of claiming though the scheme".

As we highlighted in our update last week, this is inconsistent with paragraph 6.7 of the Treasury Direction published on 15 April, which requires that employees agree in writing to cease all work in relation to their employment.

We have however now received some reassurance this week in a letter issued on behalf of HMRC that has been widely circulated. Whilst it is important to note this is not official guidance, the letter seeks to address the discrepancy between the Treasury Direction and HMRC guidance and states:

"…the employer and the employee must reach an agreement and an auditable written record of this agreement must be retained. It does not necessarily follow that the employee will have provided written confirmation that such an agreement was reached in all cases."

This would suggest that employers who have not obtained written agreement from the employee to cease all work for them will not be denied the ability to claim under the CJRS, as long as the spirit and the detail of the guidance is followed. In cases of new furloughs in the future, it may be prudent to comply with the Treasury Direction if that is reasonably possible.

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Collective Agreements

The latest guidance confirms that a collective agreement reached between an employer and a trade union will also be acceptable for the purposes of claiming under the CJRS.

Holiday

Workers continue to accrue holiday while on furlough, and are entitled to take leave during this time. This is confirmed in the separate HMRC guidance for employees but is still not covered in the guidance for employers. The guidance also notes that holiday pay should be employees' 'usual holiday pay in accordance with the Working Time Regulations 1998,' and that 'employers will be obliged to pay the additional amounts over the grant'.

Further Guidance

HMRC has also published new guidance on how to claim under the CJRS, as well as how to calculate 80% of an employee's wages for the purpose of claiming under the CJRS.

We will continue to keep you updated with further developments as and when they are released.


For specialist legal advice relating to this guidance please contact Michael Halsey in our Employment Law team on 07554 432829, or complete the form below.

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