It has been a week since the Prime Minister, Boris Johnston, announced the Coronavirus Job Retention Scheme which will see the Government reimbursing employers 80% of the wages for any staff that they wish to furlough.

There is still a lot about this scheme that we do not yet know however further details were published by the Government last night.

Can an employee continue to work whilst also being placed on furlough leave?
It is clear from the Government guidance that if you wish to put an employee on furlough leave, that employee can no longer do any work during this period, even for an hour. Furlough leave must be taken in minimum blocks of three weeks. An employer is permitted to rotate furlough leave amongst employees, provided that each employee is off for a period of at least three weeks.

How should employers select who should be placed on furlough leave?
There is no clear rule for this however, we would recommend that if people are in the same job, there should be a pool for selection and the lowest scoring workers should be placed on furlough leave (remember to get their agreement to this). You could also potentially look at prioritising those who are more vulnerable and susceptible to catching the virus. The Government has made it clear that equality and discrimination laws will still be applied in the same way. Employers could argue that they are fulfilling their obligations to make reasonable adjustments by placing those with disabilities or underlying health conditions which make them more susceptible to Coronavirus on furlough leave. Obviously, care should be exercised here to prevent a discrimination claim and legal advice should be sought before doing this.

To whom does furlough apply and how will it be calculated?
The Government guidance issued last night is clear that, to be eligible, the employee must have been on the payroll on 28 February 2020. Employers can reclaim up to 80% of wage costs up to a cap of £2500 per month, plus (not including) the associated employer NICs and minimum autoenrollment pension contributions. Fees, commissions and bonuses are not included.

For employees whose pay varies, the employer can claim for the higher of either (a) the same month’s earnings from March 2019 or (b) the average monthly earnings from 2019-2020 tax year.

What about employees who have not yet started their employment but have accepted an offer of employment?
Any employees who commenced employment on or after 1 March 2020 will be excluded from the scheme. If any employers do attempt to do this it will likely be spotted by HM Revenue and Customs (“HMRC”) as they will have access to employers’ PAYE records.

Can employers re-hire employees they made redundant before the Job Retention Scheme was announced?
It is expected that employers will be able to rehire any employees who they have made redundant since 28 February 2020 in order that they can place these employees on furlough.

How can employers claim to HMRC?
Employers will need the employee’s PAYE reference number, the number of employees being furloughed, the claim period (start and end date), the amount claimed (per the minimum length of furloughing of three weeks), the employer’s bank account and sort code and the employer’s contact number. It is important that you calculate the amount you are claiming since HMRC will retain the right to retrospectively audit all aspects of your claim.

It is still unclear whether HMRC intends to rely on the Government’s Furlough Scheme guidance or indeed whether there will be actual legislation. However should you require any advice or assistance in the meantime, you can get in touch with the Blackadders Employment Team.

Simon Allison, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law
Employment Law
Blackadders LLP
@EmpLawyerSimon

www.blackadders.co.uk

See also:
Coronavirus: A Guide for Employers Part 6
Coronavirus: A Guide for Employers Part 5
Coronavirus: A Guide for Employers Part 4
Coronavirus: A Guide for Employers Part 3
Coronavirus: A Guide for Employers Part 2
Coronavirus: A Guide for Employers Part 1