From the Government Statistics published on 21 August 2020 for Q2 upto 30 June 2020 9.8 million UK workers, over a quarter of the UK workforce, across 1 million employers, have been been supported by the £14 billion-a-month furlough scheme. Further details are available here. Upto 16 August 2020 the overall cost of the United Kingdom’s job retention scheme has been £35.4 billion. The OBR puts the total estimated cost of CJRS to the UK taxpayer at £60 billion.
Updated Friday 4th September 2020.
In latest developments, the Chancellor announced on 8th July that employers would be given a £1000 ‘Job Retention Bonus’ for every furloughed employee they bring back into work, who is continuously employed until 31st January 2021.
To be eligible, employees will need to:
– earn at least £520 per month (above the Lower Earnings Limit) on average for November, December and January
– have been furloughed by you at any point and legitimately claimed for under the Coronavirus Job Retention Scheme
– have been continuously employed by you up until at least 31 January 2021.
Employers will be able to claim the bonus from February 2021 once accurate RTI data to 31 January has been received. More information about this scheme was published on 31 July and is available here.
In previous changes to the CJRS scheme, from 1st July 2020, employers can bring back staff part time whilst still claiming part of the grant. The Chancellor gave the example of an employee who could be brought back to work for 2 days a week, and remain furloughed for the other 3 days. In this case, the employer would pay the full wage costs for those 2 days, and claim the 80% of the wage costs for the other 3.
This new flexibility will be welcomed by employers and employees as we navigate a very uncertain path to the ‘new normal’.
Please note, the deadline for putting employees on the furlough scheme has passed. Only employees who were registered on the scheme by the 10th June (for the required 3 week period) and for whom the employer has submitted a claim for this by 31 July will qualify for flexible furlough.
Further details on the Coronavirus Job Retention Scheme can be found here.
Employers to share more of the costs of furloughing
From 1st August 2020, employers have been paying the employer’s NI and pensions for August to contribute to the wage costs of furloughed staff and will now continue to do so each month. In addition in September, employers will contribute 10% of the wage costs of furloughed staff, with the Government contributing 70%. And in October employers will be contributing 20% of the wage costs, with the Government contributing 60%. The Scheme ends on 31 October 2020.
The infographic and table below summarise these changes:
If the employer agrees with the employee that they should work part time with the remainder of the time on furlough leave then the above amounts will apply to the days of the week/usual working hours in a week which the employee spends on furlough leave.
The Government Guidance for the Scheme states that Employers should discuss with their staff and make any changes to the employment contract by agreement when an employee returns or goes onto flexible furlough. When employers are making decisions in relation to the process, including deciding who to offer furlough to or to return from furlough, equality and discrimination laws will apply in the usual way. We recommend regular communication with staff and giving sufficient notice for the return from furlough. With children returning to school in September now is a good time to communicate again with furloughed staff.
According to Government figures, the average grant claimed under CJRS is £1,380 per month so far. Taking this figure, the cost to an employer per month for its contributions for its employee’s wages will rise to £207 by September and £345 in October. This represents 14% and 23% of gross wage costs per employee per month respectively.
The employer will still pay as usual the employee usual 100% salary, holiday pay, pension contribution and other benefits for the days / hours that the employee works.
If the employer wants to change the 100% salary and benefits for the days/hours the employee is working then this will need to be by agreement with the employee.
Furlough scheme to end 31st October
Please note any final employees needed to be in the scheme by June 10th which is 3 weeks (the current minimum furlough leave period) before the 30th June and employer needed to have submitted a claim for this period by 31 July for staff to qualify for flexible furlough
So furloughed employees would have needed need to have been in the scheme by 30th June 2020 and the scheme is now closed to new entrants.
From 1 July, the minimum claim period is also being reduced from 3 weeks to just 1 week and a claim cannot overlap from one month to the next. This has been introduced because employers will start contributing from 1st August, and the furlough payment calculations would get too complicated if the claims periods overlap from one month to the next.
HMRC Portal for claiming the grant here,
and at GOV.UK www.gov.uk/guidance/claim-for-wages-through-the-coronavirus-job-retention-scheme
Which workers are eligible?
- Broadly, all employees and workers whether full time, part-time or on zero hours contracts are eligible – see below for more details.
- The cut-off point for employees to qualify for CJRS is that they must be on the payroll at 19 March 2020, not 28 February, as originally stated.
- Employees that were employed as of 28th February 2020, and on payroll (i.e notified to HMRC on an RTI (real time information) submission on or before 28th February) and were made redundant or stopped working for an employer after that and prior to 19th March 2020, can also qualify for the scheme if their employers re-employ them and put them on furlough. More information on this can be found on GOV.UK.
- As we’ve said, 30th June was the key cut-off point. Employers must have used the scheme by that date for at least one worker and after 30th June flexible furlough leave will only apply to workers who have previously been furloughed for at least a full three weeks before that date.
- Employers cannot suddenly then furlough staff who have been working since 1 March 2020.
- From 1 July claim periods will no longer be able to overlap month ends. Employers who previously submitted claims with periods that overlapped calendar months will no longer be able to do this going forward. This is necessary to reflect the forthcoming changes to the scheme from 1 August when employers start making contributions .
- The number of employees an employer can claim for in any claim period cannot exceed the maximum number they have claimed for under any previous claim under the current CJRS. This means that employers cannot suddenly furlough more staff than they have furloughed in previous months.
Paying employee taxes and pension contributions
Employees will still pay the taxes they normally pay out of their wages.
Employers must deduct and pay to HMRC income tax and employee National Insurance contributions on the full amount that they pay the employee, including any scheme grant.
Employers must also pay to HMRC the employer National Insurance contributions on the full amount that they pay the employee, including any scheme grant.
Employers must report these payments via a Full Payment Submission to HMRC on or before the pay date.
Employees will also still pay pension contributions (both employer and automatic contributions from the employee), unless the employee has opted out or stopped saving into their pension. From 1 August employers can no longer claim for employer NICs and pension contributions and pay those costs as usual.
What should employers do next?
Now that the Government has set out the guidance for the return to a COVID-secure work place and the dates when certain sectors can reopen, employers need to plan their staffing requirements and build in as much flexibility as possible.
It’s vital you keep clear and accurate records of employees’ working hours and days. The HMRC portal from 1st July requires clear statements from employers about days/hours worked back in the business and those on flexible furlough leave. This will ensure that the correct grant payment is claimed and reduce fraud.
The start of flexible furlough leave from 1st July has helped employers bring back staff part-time as demand stabilises in the business.
If demand then reduces, employers can put staff back on furlough leave for minimum periods which from 1 July can now just be one week.
Now is the time to check employee and worker contracts again to see what changes are needed to be agreed with staff either in the short term on return to part-time work (flexible furlough leave) or in the long term.
Employers need to remember that consultation may be needed with the employee representatives (who need to be elected in advance) or trade union representatives if the employer’s proposals will lead to the risk of 20 or more people being dismissed (for redundancy). Please remember that changes proposed by the employer to more than 20 staff which, if unaccepted would lead to dismissals (for redundancy), will still require this consultation exercise.
Employers who will not be opening until the Autumn will need to make some difficult decisions. Do they continue with the flexible furlough scheme arrangements but continue to pay from 1st August for staff who are furloughed? Or do they decide to start discussions with staff to change long term salaries and benefits and working hours through a consultation / redundancy process as necessary? This needs clear strategic planning with built-in flexibility if demand returns quicker than expected.
Employers also need to plan now for the 31st October closure of the scheme altogether. This now appears to look like a “cliff edge”. Working back from that date employers will need to consider if they need to start redundancy consultation with employee representatives and or trade unions at least 30 days (if there are between 20 and 99 redundancies proposed) or 45 days (if 100 or more redundancies are proposed). By the middle of September these proposals will need to be communicated in sufficient time to complete the collective consultation and then individual consultation as part of the redundancy round before 31 October.
The ongoing situation through this year at British Airways for example, shows the need for very careful planning and there may be more Government intervention in certain industries to prevent widespread redundancies or what are perceived to be unfair reductions in employee salaries, benefits and working conditions.
If employers are planning to make furloughed employees redundant whether they are on full-time furlough or flexible furlough they need to correctly calculate the redundancy costs.
These costs usually fall into 2 categories:
- pay for the employee’s notice (if they are not to work their notice) and the employment contract just provides the statutory notice of 1 week for each year of service upto 12 years service; and
- statutory redundancy pay if the employee had worked for or more years with that employer.
These costs should be calculated and paid based on the employee’s 100% (before being placed in the furlough scheme) salary.
The 28 August 2020 revised HMRC document: “Check which employees you can put on furlough to use the Coronavirus Job Retention Scheme – GOV.UK” states as follows:
“If you’ve made your employees redundant
Where you must make redundancies, you should do so in accordance with the normal rules. This includes giving a notice period and consulting staff before a final decision is reached. You can continue to claim for a furloughed employee who is serving a statutory notice period, however grants cannot be used to substitute redundancy payments.
If you’re made redundant, there is new legislation that ensures you are entitled to received redundancy pay based on your normal wage and not the reduced furlough rate.“
There are 2 basic exceptions.
- The employment contract as varied by the agreed flexible furlough agreement may state a different notice period eg 1 or 3 months and 80% pay level for the furloughed time each month and therefore those figures would be used if the statutory notice period is not longer and does not apply; and
- Statutory Redundancy payments are calculated on a week’s gross wages for the employee and are capped currently at £538 per week which is an annually reviewed figure reviewed by the Government in April each year.
Please also note that the HMRC guidance above does identify serving statutory notice and therefore a payment in lieu of notice so the employee does not work their notice period would not qualify for a grant payment. For this and cashflow purposes it is better to keep a worker who has been given notice of redundancy on furlough and claim for their notice period pay each month under the Scheme. The above guidance also indicates that the furlough scheme grant payment cannot be used to fund what we think HMRC mean to be just the statutory redundancy payment not the notice period payment. This would need to be checked with HMRC.
Template return from furlough leave letter
Download the template
We have put together this template return from furlough leave letter that, following discussions with furloughed employees, you should customise and send to them, confirming their return to work.
If the employee is returning on their pre furlough terms, there is no need to gain agreement. If you plan to ask a furloughed employee to return to work part-time however, then the part time arrangements, and any changes in their working hours and / or salary & benefits should be set out in the letter. The Government advises employers to gain the employee’s agreement to the new changes to their furlough leave arrangements and, keep a record of the communications for 5 years. We agree – otherwise there is the risk of employment grievances and claims and the wasted management time and costs defending an Employment Tribunal claims. Agreement must be sought where salary, benefits, working hours or place of work are changing.
How do I make a claim for furloughed staff under CJRS?
By now all employers will have registered for the scheme and have arrangements set up with accountants and payroll agents who are authorised to make claims.
This HMRC step by step guide outlines the specifics of what you need to do to claim for the grant. HMRC has produced updated guidance for employers on how to calculate your claim, it explains different pay and grant reclaim scenarios.
Which businesses are covered?
The scheme will be open to all UK employers, including charities, recruitment agencies, and public authorities (who are not receiving direct support from the government) so long as they have:
- created and started a PAYE payroll scheme on or before 28 February 2020, and
- have a UK bank account
Which employees are covered?
The HMRC guidance states that CJRS will cover employees who have been on the payroll since 19th March this year, on any type of contract including:
- full-time and part-time employees
- employees on agency contracts, and
- employees on flexible for zero-hour contracts
An employee is considered furloughed under the scheme only if he or she does no work for the employer. The scheme does not therefore cover the wages of employees whose hours are reduced.
Note furloughed employees are allowed to undertake training for their current employer, and this training has to be paid at their full salary rate.
In recent updates to the CJRS scheme, employees who are unable to work because they have caring responsibilities resulting from COVID-19 can also be furloughed.
How to put employees on furlough leave?
Employers need to:
- Decide which employees to designate as furloughed workers.
- Notify those employees of the intended change.
The HMRC guidance states that it is important to take legal advice on this because the changes will affect each worker’s contract of employment and need the workers’ agreement.
- Consider whether you need to consult with employee representatives or trade unions.
For example, where the employer intends to vary the contracts of 20 or more employees, and it intends to dismiss employees who do not consent to the change in their terms, for the purposes of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), those employees who do not consent to the change in their terms will be classed as dismissed by reason of redundancy.
The employer will therefore have a duty to inform and consult appropriate employee representatives and notify the Secretary of State using form HR1.
The HMRC guidance states that employers will need to follow this process before placing employees on furlough leave.
- Agree the change with the furloughed employees.
Most employment contracts will not permit an employer to reduce an employee’s pay, provide them with no work, and change their employment status without agreement – otherwise there is the risk of a constructive/unfair dismissal, wrongful dismissal/breach of contract claims and unlawful deductions of wages claims.
Technically under the employment contracts each employee should be given the period of notice in their employment contract (e.g. one month for most employees or the number of weeks equivalent to the years of service if longer) before the change takes effect, or agreement reached with the employee.
However, faced with the alternatives, which are likely to be unpaid leave, lay-off, or redundancy, the majority of affected employees are likely to agree to be placed on furlough leave.
HM Treasury has now directed that there is no longer any need for a worker to agree to be furloughed. However HM Treasury has stated that there must now be a written furlough agreement setting out the employee’s terms and conditions which is incorporated into their contract and retained until 30 June 2025. We know, it’s somewhat complicated, so please do get in touch if you have queries
- Confirm the employees’ new status in writing. Ideally, the employer should advise how long it expects furlough leave to continue, however this may be difficult in the current climate. Employers may wish to put employees on furlough leave for an initial period, subject to review.
- Submit information to HMRC about the employees that have been furloughed and their earnings through the new online portal, (see above).
- Ensure that the employees do not carry out any further work for the employer (except training). The employee can still volunteer as e.g an NHS or care volunteer.
What wages should employers pay during the period of furlough leave?
- Employers can check exactly the wages that they can recover through the scheme on the HMRC guidance, and can check out worked examples in the links.
- During the period of furlough leave, the employer should pay the employee at least the lower of 80% of the employee’s salary or £2,500. In each case PAYE (Income Tax) and NI is deducted before the salary is paid to the employee.
- The HMRC guidance states that employers can choose to top up wages to 100%, but are not obliged to do so.
- For full-time and part-time salaried employees, the employee’s actual salary, before tax, as at 28 February 2020 should be used to calculate the 80%.
- The employee’s wage will be subject to income tax and other deductions e.g NI and workplace pension contributions.
- The HMRC guidance notes that fees, discretionary commission and bonuses should not be included.
- Where an employee’s pay varies, the employer will be able to claim for either:
-the higher of the employee’s earnings in the same month the previous year, or
-the employee’s average monthly earnings in the 2019/20 tax year.
- In the case of an employee who has been employed for less than a year, the employer will be able to claim for an average of the employee’s monthly earnings since he or she started work.
- In the case of an employee who only started in February 2020, the employer will be required to pro-rate the employee’s earnings so far.
- The Guidance also covers the application of the national minimum wage (NMW) to furloughed employees.
It states that, since employees are only entitled to the NMW while doing work, furloughed employees, who are not working, must be paid at the 80% rate (or £2,500) even if, based on their usual working hours, this would be below the applicable rate of NMW.
However, the Guidance goes on to state that if employees are required to, for example, complete online training courses while they are furloughed, then they must be paid at least the NMW for the time spent training, even if this is more than the 80% of their wage that will be subsidised.
The National Minimum wage from April 2020 is £8.72 for those aged 25 and over.
What happens if an employee’s health has been affected by Covid-19?
Employees who are on sick leave should receive statutory sick pay but can be furloughed during this time. We therefore think that an employee on contractual sick pay could also be placed on furlough leave. However we think employees receiving any other statutory payment, such as statutory maternity pay, paternity pay, adoption pay cannot be also placed on furlough.
An employee who is currently on furlough leave, may move to be on another statutory leave, e.g Maternity leave.
Employees who are shielding, self isolating in line with Public Health Guidance or at home looking after children can be placed in the Coronavirus Job Retention Scheme.
What should I say to employees and what should I ask them to sign?
Put briefly, on 20 May 2020 HM Treasury (not HMRC) directed that there is no longer any need for a worker to agree to be furloughed. However HM Treasury clarified there must now be a written furlough agreement setting out the employee’s terms and conditions which is incorporated into their contract and retained until 30 June 2025.
It is still best to adopt the best HR and employment law practice of explaining to a worker the changes and writing to them to confirm they are on furlough leave / any new flexible furlough arrangements and asking them to countersign the new agreement. Please contact us if you need help with any of your furlough agreements.
If the you are planning to reduce the salary and any benefits related to salary (eg pension) to the 80% level, then under employment law this is an unlawful deduction from wages for the 20% of salary and benefits, and could be constructive (unfair dismissal). This is why it is important to get the workers agreement.
It is important to maintain good communication with employees and be available to speak as needed.
You should expect ongoing questions from your teams about this and returning from furlough leave, we advise using these to produce your own Q&A to help them. Please contact us if you need a return from furlough leave letter.
Are employers obliged to top up the remaining 20%?
No, but employers can choose to do so.
What happens to pension, holiday and other benefits?
Each employer will have different arrangements, so explain the changes clearly to your staff. Until 31st July, employers can still claim under the grant for the employers workplace pension contribution. When paying their staff, employers will deduct the worker’s workplace pension contribution and pay the contributions into the relevant pension scheme as normal. From 1st August, employers will be paying those contributions as usual and will not be able to claim them as part of the grant.
Employees will continue to accrue the basic 20 days and 8 public holidays (5.6 weeks) Working Time Regulations statutory holiday over the furlough leave period, and employers will need to pay this at 100% salary (because it is a benefit accrued when the employee was receiving full salary, calculated over the last 52 weeks average pay) even if employers are only planning to pay 80% salary.
Can a furloughed employee request to remain on furlough leave or switch to flexible furlough leave?
Yes, an employee can request, but it’s the employer’s decision. Discussion with the employee themselves to find what suits them and the business will of course smooth the path.
Potentially redundant employees do not have a right to require their employer to place them on furlough leave as an alternative to redundancy. However, it is hoped that many employers will continue to use the scheme instead of making redundancies and / or closing the business.
How do I choose which employees remain on flexible furlough leave and which return to work?
Employers will make a commercial judgment about which critical business functions will need to carry on (e.g. Board or senior management oversight, IT support teams, finance teams, HR, legal, facilities management/security etc). Choosing who needs to be placed on furlough leave, to return on flexible furlough leave, or to return to work full time, may prove a challenging task for some employers.
This is especially difficult if you intend to pay staff on furlough leave their full pay, while other staff are being asked to work as normal for their pay. Staff who were delivering services on-site, are likely to be natural candidates for furlough leave.
The starting point is to consider business needs as stated above. Keep records of why that decision was made showing which roles were critical to the business functioning. As the minimum period of furlough leave can now be as short as one week (from 1 July), there is more flexibility for employers to bring back staff from / place staff on furlough leave as necessary, depending on the demand in the business.
You can also keep staff on flexible furlough leave where they work part-time some days in the business.
The HMRC guidance states that equality and discrimination laws continue to apply to the selection process for employees to go on furlough leave. Take care to avoid direct or indirect discrimination in the selection process. Make contact if you need help or have queries on this.
Where an employer must select between staff doing identical business critical roles, the first step is to ask for volunteers to remain working, or use a random selection policy for large teams.
Where possible, employers who have employees who are no longer needed to deliver a service on site (e.g restaurants, leisure facilities, bars) as the site is shut, have asked for volunteers to be placed into the Coronavirus Job Retention Scheme and when return to work is possible. They have received very positive response and large numbers of workers accepting the re-designation in order to preserve their employment. It is vital to find out an employee’s and family situation, e.g home schooling, so you know if the employee can return or not and if so whether working from home or onsite is more appropriate.
For the functions which are critical for the business (referred to above) employers could consider having enough staff available if a team member should go sick or have access to temporary worker support from home where possible so that critical functions can continue as the business re-opens in a Covid-19 secure way.
What happens if the employer has furloughed 20 or more staff and is changing terms and conditions?
This template letter has been written for situations where less than 20 staff are being called back from furlough leave. (If you recalling more than 20 staff from furlough, and you are planning to change their terms of employment on return, then collective consultation may be required. Please get in touch in this case.
If there are more than 20 staff and the employer would have to consider redundancies if the employees do not accept the new contract changes on return from furlough leave e.g a reduction to 80% or less salary, then a collective consultation process will need to be undertaken.
The Guidance makes specific reference to these risks and the need to take overall legal advice.
What happens to employees who have been made redundant, can they be furloughed and be in CJRS?
If you made employees redundant, or they stopped working for you on or after 28 February 2020, you can re-employ them, put them on furlough and claim for their wages through the scheme. This applies to employees that were made redundant or stopped working for you after 28 February, even if you do not re-employ them until after 19 March. This applies as long as the employee was on your payroll as at 28 February and had been notified to HMRC on an RTI submission on or before 28 February 2020. This means an RTI submission notifying payment in respect of that employee to HMRC must have been made on or before 28 February 2020
What happens to employees hired after 28 February 2020?
The CJRS was altered early on so that employees hired by the later date of 19th March 2020 (rather than by 28th February) qualify for the scheme, provided they were on a the RTI filing submitted to HMRC on or before 19th March.
What is the minimum time that an employee can be furloughed?
Furlough leave runs for a minimum of 3 weeks and from 1 July this reduces to just one week. This allows employers more flexibility, so they can bring workers back from furlough leave and if necessary put them back onto flexible furlough leave; in out, in out whilst the scheme lasts.
Can an employee volunteer or do training work during furlough leave?
A furloughed employee can volunteer e.g as an NHS volunteer, as long as he/she does not provide services or generate revenue for the organisation.
If an employee is required to complete online training courses whilst they are on furlough leave then they must be paid their 100% salary (which must be of course at least National Living Wage/National Minimum Wage) for the day/s spent training.
Can an employee work for different employers whilst on furlough leave?
If contractually allowed, your employees are permitted to work for another employer whilst you have placed them on furlough leave. For any employer that takes on a new employee, the new employer should ensure they complete the HMRC new starter checklist form correctly. If the employee is furloughed from another employment, then Statement C of this starter checklist need to be ticked.
What happens to an employee who is on maternity leave, contractual adoption pay, maternity pay or shared parental pay?
The normal rules apply and they are entitled to claim the usual statutory pay or allowances.
For example an employee who qualifies for statutory maternity pay will still be eligible for 90% of their average weekly earnings in the first six weeks, followed by 33 weeks of pay paid at 90% of their average weekly earnings or the statutory flat rate (whichever is lower). The statutory flat rate is £151.20 a week from April 2020.
If the employer offers enhanced (earnings -related) contractual pay to women on maternity leave this is included as wage costs and can be claimed through CJRS.
The same principle applies to contractual adoption, paternity or shared parental pay or parental bereavement pay.
How frequently can an employer submit a claim?
An employer can only submit one claim every three weeks or every week from 1st July .
Can I still make employees redundant whilst they are on furlough or afterwards?
Yes, and your employees have their normal rights to redundancy protection and payments in this situation. Since 31 July 2020, the Government has confirmed that payments should be at the 100% salary level for statutory redundancy and the statutory notice period if that notice period applies instead of the notice period and salary in the employment agreement (as varied by any agreed flexible furlough arrangement).
Can I change an employee to be back to work after they have completed the minimum weeks furlough leave?
Yes, employers can place employees on furlough leave more than once, and one period can follow straight after an existing furlough period. The scheme is open until 31 October and as we’ve said from 1 July employees can be on flexible furlough leave, where they work part-time in the business.
What happens when CJRS ends?
Employees that have been on furlough leave have the same rights as they did previously. Returning employees will still have their usual rights to statutory sick pay, maternity rights, other parental rights and rights against unfair dismissal and suffering discrimination. Please contact us if you need a return from furlough leave letter.
What happens if the business can no longer receive back all employees when their furlough leave ends?
Employers will need to make a decision, depending on the business situation at that time, whether all employees can return to their duties.
If the business is not in a situation to receive employees back when their period of furlough leave ends, it will be necessary to consider termination of employment through a fair and reasonable redundancy process.
Please contact us by email or phone, number below, if you need advice or you want to discuss what to do next. We are here to help.