Coronavirus Job Retention and Job Support Schemes - details

This is a temporary scheme designed to help employers retain their employees and protect the UK economy

 Furlough letter template

How do employers evidence to HMRC that an individual is a furloughed worker?

A schedule of furloughed workers will need to be produced and submitted to HMRC through a new portal created for the purpose. The following information will need to be included:

• Business ePAYE number
• The number of employees being furloughed
• The claim period you are claiming for (the minimum period is 3 weeks)
• Full name of the employee
• Employee NI number

The Corporation Tax Unique Taxpayer reference or Company registration number (or Self Assessment Unique Taxpayer reference) is also required if applicable.

What figures will I need to provide?

You will also need to enter the total amount being claimed for all furloughed workers, and the amount of Employer's NICs and minimum employer pension costs. if you care claiming for flexible furlugh you will  need to enter details of the individual income but the system will check the number of workers being claimed for against relevant RTI submissions. if any of the information is not provided or does not match what is already in the system, then the claim will be rejected.

REIMBURSEMENT

How often can I make a claim?

From 1 November, claims are made  monthly and only one claim will be excepted each month. You will need to enter the first and last dates of the relevant pay period.

In what time frame will firms be reimbursed for furloughed workers?

repayment normally takes 6 working days from submission of the claim, provided there are no queries.

You must retain all of your claim records for 5 years as HMRC retain the right to audit.  Any claims based on inaccurate information can be recovered by HMRC.

Furloughed employees should not contact HMRC as it is the employer who will make the payment to the employee

SALARY

What is the definition of "salary" on which 80% of pay should be calculated?

This has now been confirmed to be on base salary and any regular payments you are obliged to pay for such as past overtime, fees and compulsory commission payments. Discretionary bonuses (including tips), commission payments and non-cash payments should be excluded.

The maximum is 80% of gross pay up to a maximum of £2,500 per month per employee (£1,175.50 for July 2021 and £1,875 for August and September 2021 when the scheme will close. If the employee earns less than this, then it is based on their gross pay.

We understand that you can change the basis of the calculation month to month in order to pay the employee the maximum allowable. Note: if you are using payroll software to calculate the amount that can be reclaimed, it might show a slight difference to that given in the HMRC calculator. HMRC's advice is to use the software figures. Small differences will not be significant.

The government have issued further guidance on how to make the calculation click here. There is also an HM Revenue & Customs example of how to calculate a claim for a flexible furlough employee click here

Flexible and zero-hours working

The rules on how much to pay someone who does not earn a regular salary or wage, or who is on a zero-hours contract, is based on the average number of hours worked, or the average income.

For an individual who has been employed for 12 months or longer, is (from HMRC guidance) to be the higher of

• the amount earned in the same month last year
• average monthly earnings from the last year

If the individual has been employed for less than a year then the average is calculated over the actual number of months or weeks worked in the period since the start of your employment.

ICB strongly advises that working calculations are kept to show justification for when the amounts are verified at a later date.

SICK LEAVE

Can employees who are certified as sick be made furloughed workers?

Employees on sick leave should be paid SSP or sick pay where contractual, for the duration. They can subsequently be furloughed when their period of sickness ends if required as the scheme is not intended for short term sickness, but not after the end of June if they haven’t previously been furloughed.  However, employers are entitled to furlough employees who are being shielded or are on long term sick leave.  Please be aware that an employer will not be able to recover SSP if you have furloughed an employee.

It should be noted that furloughed employees retain their statutory rights and therefore if a furloughed employee becomes ill they must be paid at least the SSP rate if they are considered as sick and not furloughed.

Is it available for employees already receiving statutory or contracted sick pay?

As above

OTHER LEAVE

Can employees who are off on any other leave e.g. maternity leave or paternity leave etc be made furloughed workers?

Prior to the end of June 2020, the answer was no; they should remain on their statutory leave.

For employees on maternity leave, the normal rules apply. If you offer enhanced (earnings-related) contractual pay to women on Maternity Leave, this is included as wage costs that you can claim through the scheme. The same principles apply where your employee qualifies for contractual adoption, paternity or shared parental pay. 

From July only employees returning from Maternity, Shared Parental, Adoption, Paternity or Parental Bereavement leave can be furloughed unless they have been furloughed in a previous period.

Will other periods of authorised absence be suspended during this time e.g. maternity leave?

Furlough is a temporary layoff and in this case, the government have undertaken to pay up to 80% of salary as a mechanism to prevent mass unemployment where an employee may be expected to resume work again in the future. It will not replace other schemes such as Maternity leave which will remain in place. Most of the SMP can already be recovered by employers.

WORKING WHILE FURLOUGHED

Can we furlough workers on a rolling basis?

Yes, workers can be flexibly furloughed and this can be done on a rolling basis.

Can employees work for other employers whilst furloughed e.g. supermarkets, NHS?

Prior to July, furloughed employees cannot work for you during this period, training is permitted providing the employee does not provide services to or generate revenue for the employer whilst undertaking it.  They still remain your employees.

From July 2020 you will be able to bring back an employee on a part-time basis with the government continuing to fund the furlough element. Note should be made of the tapering support from July 2021.

However, if an employee has more than one employer (multiple jobs), provided it is permitted within your employment contract, they can continue to work for one employer and be furloughed by another. If that employer subsequently decides to furlough, the same rules apply and they can receive 80% of their salary from that employer.

The 80% of salary or £2,500 cap applies to each job.

Additionally, if your contract of employment allows, an employee can begin work for a new employer whilst furloughed. 

Can employees intermittently be furloughed, punctuated by periods of paid holiday or working?

Each claim covers specific employees, therefore, you may be able to bring them back into work for the following period to undertake paid work and from 1 July you can bring them back on a part-time basis if required.  It should be noted that employees will continue to accrue annual leave whilst furloughed so you wouldn’t change an employee’s status from furlough due to holiday.

Can furloughed workers be rotated back into the business?

As it is a separate claim for each period furloughed workers can be brought back into work on a gradual basis as required by the business recovery within the time parameters of the scheme (currently end October 2020). Unless the government elect to extend the scheme, other action may need to be considered beyond the initial term.

Can furloughed workers undertake ad hoc work for the business?

Prior to July, furloughed workers are not allowed, to undertake any work for the business although from 1 July you can bring back employees on a part-time basis with the government continuing to fund the furlough element. 

The rules are slightly different for Officers and Directors who can undertake statutory obligations of the business under the Companies Act 2006. 

ANNUAL LEAVE

Will employees continue to accrue annual leave while furloughed?

Holiday leave will continue to be accrued during the furloughed period.

How will holiday entitlement and pay be treated during the furlough period?

Whilst an employee is furloughed, no other payments should be made. The employee is in effect temporarily ‘laid off’ as opposed to permanently laid off.

Employees can request and take holiday days and bank holidays in the usual way during a period of furlough leave.  They must, however, seek agreement from their employer first.  Furlough workers must get their usual pay in full for the holiday, bank holidays are taken. 

Do we need to pay-up all accrued but unused holiday to the point of furlough?

No. This is not necessary as holiday leave will continue to accrue whilst they are furloughed

Should I ask employees to take annual leave before furloughing?

This is a matter for each business to consider. The purpose of furloughing is to prevent unemployment and to ease financial pressures on a business so that it can survive a temporary downturn in business. Asking an employee to take leave will result in the company continuing to pay the employee which in the current climate may not be an attractive proposition.

Are we expected to deduct used but not accrued holidays to this point?

No. The worker will remain an employee during the period of furlough and retain contractual benefits other than that around pay.

PAYE

Will PAYE continue to be deducted in the normal way?

HMRC will pay a grant to the employer who will process the furloughed employees through their payroll as normal so PAYE and Employee National insurance contributions will be deducted. Employees will also continue to make automatic enrolment contributions on qualifying earnings unless they have elected to opt-out or have ceased savings into a workplace pension plan.

TRADE UNIONS

Can Trade Unions negotiate on behalf of all employees in a collective agreement situation?

Yes, this is possible where such an agreement is in place.

PENSIONS

Can we deduct pension and other voluntary deductions from furloughed workers pay? Do pension contributions continue or are they suspended?

Employees will continue to make automatic enrolment contributions on qualifying earnings unless they have elected to opt-out or have ceased savings into a workplace pension plan. Pension contributions will continue as outlined above.

ELIGIBILITY

Does the scheme apply equally to all workers? Is it applicable to temporary staff and if so, what is the eligibility?

The scheme is open to all UK employers that had created and started a PAYE  payroll scheme as at 28 February 2020. Therefore, it does not cover:

• Workers on the PAYE payroll on or before 19 March 2020 if they have not been notified to HMRC on an RTI submission on, or prior to 19 March 2020
• Workers not on the payroll as at 20 March 2020 (previously 28 February 2020).
• Workers not previously furloughed prior to 10 June.
• Self-employed individuals whether working as a sole trader or through a partnership or LLP (who should apply for the SEISS)
• Workers who are working on personal contracts but do not satisfy the conditions to be an employee (those with no holiday or sick pay entitlement)

Any UK organisation with employees can apply, including:

• businesses charities
• recruitment agencies (agency workers paid through PAYE)
• public authorities

Provided they were on the payroll before 28 February you can claim for any type of employee including:

• Full time
• Part-time
• Employees on agency contracts
• Employees on fixed-term contracts
• Employees on flexible or zero-hours contracts

How should an employer agree furloughed status with an employee i.e. in writing?

Your affected employees will need to be designated ‘furloughed workers’ and this will need to be confirmed in writing. It is important to note that changing employees’ employment rights are still subject to employment law and unless lay off or short-time working clauses are included in contracts of employment, separate negotiation may be required. It is best to take employment advice on this point.

Is a furlough agreement template letter available?

Yes, you can download it from the top of this page.

Will I need to top up the other 20%?

You can fund the difference if you wish but there is no obligation to do this under the scheme. From 1 July you will also need to contribute 10% as the government will only reimburse 70% (up to a maximum of £2,187.50) and for August and september 2021 the grant reduces again to 60% (up to a maximum of £1,875) meaning a 20% contribution from the employer is required.

Are there any conditions for the employer attached to applying for furloughed status e.g. should we guarantee continued employment for a period?

The employee cannot work for you if furloughed prior to July. The scheme will continue until the end of October 2020. Until the end of July 2020, the minimum tern an employee cab=n be furloughed is 3 weeks. The government has indicated that there is no requirement on the employer that employment needs to be guaranteed afterwards. At this point, it may be necessary to consider termination of employment. It is important that you seek further advice on this prior to taking any action as employment law still applies and if carried out incorrectly you may find yourself subject to an Employment Tribunal claim.

What options do we have to give our employees alongside the option to become a furloughed worker e.g. statutory redundancy?

The idea behind the Coronavirus Job Retention Scheme (CJRS) is for businesses to retain employees during the period in order that they can bring them back when the business situation improves (subject to the current scheme duration).

Can workers be required to take furlough leave?

Furlough is an alternative to permanent lay off/redundancy. Provided your contracts of employment include the appropriate clauses to enable you to change their status you can impose this. Can employers continue to contact furloughed employees?

The employee cannot work for you during this period (even making phone calls or sending email); however, we would imagine that it would okay to periodically keep in touch from an employee welfare aspect.

Can I re-hire staff who I have recently made redundant or who left?

Depending on the relevant dates, it was possible for staff to be taken back on and furloughed.

Can we use the scheme for staff whose start date has been deferred or where offers have been withdrawn?

No. You can only furlough employees who were on the payroll, and for whom an RTI had been submitted, as of 30 October 2020 (for claims up to thE end of April 2021) and from 2 March 2021 (for claims from 1 May to 30 september 2021).

How will pay be calculated in the case of employees with varying remuneration e.g. those working on commission?

You can claim for any regular payments you are obliged to pay; however, discretionary bonus (including tips), commission and non-cash payments are excluded. For employees whose earnings fluctuate for other reasons you can claim the following:

If an employee has been engaged for a full 12 months you can claim the higher of the same month’s earnings from the previous year, or, the average earnings for the 2019/20 tax year

If an employee has been employed for less than a year you can claim an average of their monthly earnings since they started their employment If an employee only started in February 2020 a pro-rata amount can be claimed

Can furloughed workers receive training?

A furloughed employee can take part in training as long as it does not provide services or revenue to the business. If workers are required to complete training in connection with the business, they must be paid at least the National Living Wage or National Minimum Wage for the time spent training. (Otherwise, the furlough wage is not subject to the NLW or NMW.)

Will redundancies be considered unfair in circumstances where employers could have applied for the scheme?

Companies should explore all options and adopt the best option for their company. The job retention scheme is to avoid mass redundancies and unemployment; however, in some cases, there may be no alternative.

Will any ‘special circumstances’ defence be compromised by the scheme where the employer feels financially compelled to ignore the obligation to consult on collective redundancies prior to any dismissals or seeks to shorten the mandatory collective consultation period?

Companies must ensure they always follow due process; failure to do so may result in unfair dismissal claims. Employment Tribunals may be sympathetic to the current situation but will not look favourably where companies have deliberately failed to follow a fair and reasonable process.

Will the scheme be extended beyond 3 months?

On the 12 May, the government announced that the scheme would be extended by a further 4 months from the initial period to the end of October 2020.  The same rules apply until the end of June; however, the rules will change from July.  The government have confirmed that the scheme will close at the end of October 2020.

What does the scheme offer to charities?

The scheme is available to employees remunerated through the PAYE. Charity workers remunerated this way will qualify

Can employers  furlough Tier 2 migrants under the scheme?  If so, what are the notification requirements for employers? Are furloughed employees still required to meet minimum salary thresholds?

The Home Office has confirmed that migrants can be furloughed. See official guidance here:

https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-tier-2-4-and-5-sponsors?utm_source=ebf57b10-5c83-4d25-98f9-5f88295bf9c9&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Can Directors furlough themselves?

Yes, directors are eligible to be furloughed provided they are on the payroll.

What is different is that company directors have duties to their company as set out in the Companies Act 2006 therefore the decision should be made by the board and formally adopted within the company records. Directors will still be able to carry out their particular duties to satisfy the statutory obligations of the company without falling foul of the furlough rules; however, they cannot carry out work that would generate revenue or provide services to benefit the company.

The concern for directors is that they will often take a lower or even no salary from the business. Instead, they will often utilise dividends to top up their income, as and when they have the profits to do so. As dividends are not subject to PAYE, the dividend amounts will not form part of the calculation for the director. Directors in this position are likely to find that should they qualify for a CJRS grant, the amount paid would likely be 80% of a low salary. A further concern is that a director must be non-active to be furloughed other than to meet statutory obligations so consideration must be given to that otherwise they may fail the CJRS requirements.

The CJRS is also available to salaried individuals who are directors of their own personal service company (PSC).

Can staff refuse to be furloughed?

Yes, staff must agree to be furloughed and cannot be forced. If an employee refuses; the company should consider alternative options, for example, redundancy.

I understand that the employment contract has to allow variation in terms at company discretion otherwise a consultation period of a month is needed. If this is done, I assume the company can still backdate the application of the furlong?

Typically, where there is no contractual clause to vary the contract or lay off employees; employers must enter a period of consultation and seek employee agreement prior to applying the changes to the contract. However, this is an exceptional situation and many companies do not have time to conduct a consultation period. The government have offered the CJRS and therefore companies should discuss the options with their staff openly and frankly and seek agreements from staff. The aim is to avoid a redundancy situation.

Does the company have to prepare a continuity plan to apply for furlough?

No continuity plan is required to apply for a CJRS grant, however, when selecting employees, employers should be aware that equality and discrimination laws will apply in the usual way.

Can holiday leave be carried over?

Working Time Regulations will be amended. Workers who have not taken all of their statutory annual leave entitlement due to COVID-19 will now be able to carry up to 4 weeks over into the next 2 leave years.

For students that are PAYE tax-exempt but paying NICs - are they still eligible?

Furloughed employees must have been on your  PAYE payroll on 28 February 2020. If the employees are earning below the tax threshold (£12,500 a year) they would still be eligible to claim. Further information should be available when HMRC publish the full guidelines.

If making staff redundant after furlough has ended, do normal redundancy rules apply (e.g. one week for each year of continual service above the minimum close of contract notice to a maximum of 12 weeks)?

Yes, the usual redundancy procedure will apply and payments should be made according to the redundancy policy if the organisation has one or statutory redundancy guidelines.

How quickly can HMRC process payments?

No definitive date has been provided regarding time scales of when payments will be made however the HMRC portal will be open on 20 April.

How much of this process will be automated in terms of BACS payments to our business account?

Once HMRC have received your claim and you are eligible for the grant, payments will be made via BACS payment to a UK bank account. Claims will need to be made in accordance with actual payroll amounts at the point at which you ran your payroll or in advance of an imminent payroll.

How should pension deductions be calculated for employees on Furlough?

You can claim for the minimum required automatic enrolment employer pension contributions on the subsidised wage.

Can furloughed employees continue to have salary sacrifice deductions taken from their pay?

The agreement will need to be sought before suspending salary sacrifice arrangements as these arrangements have been contractually agreed and would, in general, have to be terminated and dealt with subject to that agreement. We would advise completing a cost-benefit analysis before carrying out this measure as dependant on policies employers and employees may be required to pay more tax and National insurance contributions

Can voluntary deductions e.g. private medical insurance continue to be deducted from employees on furlough?

Yes, providing the scheme is still in operation and the employee has no objection to continuing with their scheme.

For employees with a variable pay, where Feb 2019, or average of last 12 months is used as a reference, is taxable pay the reference pay referred to?

Yes, the average pay over the last 12 months will need to be calculated as gross and then the 80% of this amount will be used as part of the Furlough pay calculations.

Will employers use the FPS via RTI to notify HMRC that a worker is furloughed, will an effective date be required?

Yes, this will be used. You will be required to make the claim via the online portal once it is set up and the information from your RTI will be used. An effective date will be required when making your claim via the portal.

What other evidence will HMRC require to prove that a worker has been furloughed?

To claim, you will need: your ePAYE reference number the number of employees being furloughed the claim period (start and end date) amount claimed (per the minimum length of furloughing of 3 weeks) your bank account number and sort code your contact name your phone number You will need to calculate the amount you are claiming. HMRC will retain the right to retrospectively audit all aspects of your claim.

Can an employee pay frequency change during furloughed status?

This is subject to agreement from the employee to change their payment frequency.

How should employees who were due a pay rise during the furloughed period e.g. NMW increases, be treated - should the new rate of pay apply?

The government have stipulated that pay will be based on the earnings prior to 28 February 2020.   The government guidance states individuals are only entitled to the national living wage, NMW or apprentices minimum wage for the hours they are working or are treated as working under minimum wage rules.  This means a furloughed worker who is not working can be paid at the lower of 80% of their wages or £2500 (70% or £2,187.50 from September, dropping to 60% or £1,875 in October); this would be below their appropriate minimum wage.  

NWM does apply where the apprentice is conducting training; employers will need to make the additional payment. 

Can all temporary staff be furloughed ie. are those with an employment contract treated differently to those with a service contract?

Temporary employees can still be furloughed providing they were on the company’s PAYE payroll on 28 February 2020.

Can I be sued for breach of contract by someone I have offered a contract to but who had not started work by 28 February and who I therefore cannot furlough?

Not sued.  If there is under 1 months service, no notice pay either side is due by statutory law however termination payment may be due dependant on the contractual terms. The employer can either withdraw offer of employment or delay start date.  The employee can go back to their previous employer to be furloughed. 

Employers are not allowed to place an employee on periods of unpaid leave or holiday without the consent of the employee. If such action is required to maintain the solvency of a business, it should be done with the agreement of the employees (or their representatives).

Can firms insist that employees undertake personal development while on furlough?

Training is permitted providing the employee does not provide services to or generate revenue for the employer whilst undertaking it. If employees are required by you to undertake training (such as online training) while on furlough, they must be paid at least the National Living Wage/National Minimum Wage, even if that is more than the level of their 80% subsidised pay under the scheme.

If I want To Furlough Staff From July Onwards, do they have to have been on furlough leave between 10^th and 30^th June?  For example, if they were furloughed until the end of May and then came back to work at the beginning of June, will I be able to furlough them again, either full time or part time, from July onwards?

To enable the introduction of flexible furloughing the last date on which an employee can be furloughed for the first time for a claim to be made under the CJRS from 1 July is the 10 June (due to the requirement of a minimum 3 week furlough period).  On 30^th June CJRS will close to any new employees other than employees returning from maternity, shared parental, adoption, parental bereavement or paternity leave.

From 1 July employers will only be able to furlough employees that have been furloughed for a full 3 week period prior to 30 June.  Therefore, any employee who has previously been furloughed should qualify for flexible furloughing from 1^st July regardless of when that period was.