Key Points From Updated Guidance On Coronavirus Job Retention Scheme (“CJRS”) For Furloughed Employees – 22 April 2020

On 17 and 20 April 2020, the Government issued further updates to its guidance for employers and employees on claiming employee wages under the CJRS.  The latest guidance also follows the publication by the Chancellor of the “Treasury Direction under the Coronavirus Act 2020” on 15 April 2020, which is akin to legislation.  This Briefing summarises the key points to emerge:

1. Does an employee need to agree to furlough in writing?

Concerns had been raised due to a lack of clarity on this question.  It is clear that the employer must notify the employee in writing, and must keep the record for 5 years.  The latest Employer Guidance confirmed that implied agreement from the employee will be sufficient, and the employee does not strictly need to provide written consent. However, as the Treasury Direction states that written employee agreement is required, we would recommend obtaining employees’ written agreement.

2. Holidays

At last, the Employer guidance has provided some clarity on holiday:

• It states that employees can be furloughed and on holiday at the same time i.e. the two are not mutually exclusive. Statutory annual leave must be paid at the employee’s normal holiday pay rate, which will require a top up from the employer above the CJRS subsidy, which cannot be recovered from HMRC.
• The Employer guidance states that an employer can prevent an employee from taking holiday during the furlough period (and the recovery period) for a business need. No guidance is provided as to what a “business need” is which suggests that the employer has some discretion.
• Four Bank Holidays will fall during the initial furlough scheme period (until 30 June 2020). There are two options here:
  • If employees normally take Bank Holidays off, they will continue to do so during furlough leave (and the employer will be required to top up pay) unless the employer gives the employee a day off in lieu; or
  • If employees normally work on Bank Holidays, they will simply be on furlough leave as usual unless the employer requires them to take it as holiday.

3. Reporting fraud

The latest guidance also explains that employees and the public will be able to report suspected fraud through an online portal.  It states that dishonest or deliberately fraudulent claims will be pursued, and payments may be withheld in full (or need to be repaid) if the claim is based on dishonest or inaccurate information or found to be fraudulent.

4. SSP

Unfortunately, the position regarding SSP remains clear.  There is no clarification as to whether sick employees can be furloughed if they are currently in receipt of SSP.

Please contact our Employment Lawyers, Nicola Tager or Lucy Cinnamond for further information or advice.

Email: nicola.tager@russells.co.uk, lucy.cinnamond@russells.co.uk