Coronavirus Latest – Updates to Job Retention Scheme
This update reflects the position as at 7 April 2020
The updated guidance gives further detail on how the CJRS will work and provides some further clarification. However, a number of key questions remain.
New and clarified areas
The key areas for employers that have now either been introduced or clarified include:
1. Employees who have stopped working for an employer (i.e. for any reason) since 28 February 2020 can be rehired and placed on furlough leave. The original guidance stated that employees who had been made redundant since this date could be rehired and furloughed but was less clear on what would happen with other employees who had either been dismissed for other reasons or who had resigned;
2. Employees with two jobs can still work for one employer while on furlough leave from the other. In addition, if contractually allowed, an employee who is placed on furlough leave with one employer can start a new job for another employer;
3. The CJRS covers “limb (b) workers” (i.e. non-employees who satisfy the definition of “worker” under section 230(3)(b) of the Employment Rights Act 1996) as long as they are paid through PAYE. This point was implicit in the original guidance but has now been clarified;
4. The updated guidance now expressly states that to be eligible for the grant under the CJRS, employers must confirm in writing to employees that are being furloughed, and keep a record of this for five years;
5. “Regular payments” that an employer is obliged to pay to employees – including overtime, fees, commission and bonuses – can be claimed under the CJRS. However, discretionary payments cannot be claimed;
6. Non-monetary benefits (such as the value of health insurance or a company car) provided to employees should not be included in the 80% salary figure;
7. The updated guidance confirms that employees can be furloughed multiple times, but each separate period of furlough leave must be for a minimum period of three consecutive weeks; and
8. Company boards can decide to furlough individual salaried directors. Where furloughed directors need to carry out duties to fulfil the statutory obligations that they owe the company, they may perform these duties provided they do no more than would reasonably be judged necessary for that purpose.
1. One of the most significant issues arising under the CJRS is how holiday should be dealt with for furloughed workers. Questions arising include whether it continues to accrue, whether it can be requested by workers and taken in the normal way, whether employers can require it to be taken by serving notice on workers in the normal way and whether it should be paid at the 100% salary rate. The updated guidance does not answer any of these questions;
2. In relation to sick leave and sick pay, the guidance is relatively clear that employees cannot be furloughed whilst they are receiving statutory sick pay (“SSP”). However, it does not explain what should happen if an employee is sick whilst on furlough leave. In one place the guidance says that furloughed employees have the right to SSP but in another place it states that employers cannot claim under the CJRS for an employee who is receiving SSP.
We can help
The issues that are arising under the CJRS are numerous and the interplay between the CJRS and existing employment law is complex. We have been advising clients on the holiday and sick leave issues set out above, as well as a number of other difficult areas.
Do get in touch if you need any help with these or any other employment law issues.Back to Our Thinking →