For a scheme that was only announced on 20 March 2020, we have had a real flurry of activity, updates, changes, differences of opinion and interpretation. It is a pretty amazing scheme really – and much more than we had hoped for to assist businesses survive this crisis.
Ahead of the HMRC portal going live on Monday 20 April 2020, I thought I would pull together a quick summary of the current situation so that you can all get your ducks in a row, ready to apply for the much needed reimbursement of the salaries of furloughed workers.
What we do know is that the scope of use has expanded, but it is still at the discretion of the employer as to whether employees are put on furlough. Strictly speaking the employee also has to formally consent.
The wording at the beginning of the guidance has softened so it is not just people who would have been made redundant, but “if you cannot maintain your current workforce because your operations have been severely affected by coronavirus”.
Who is Eligible?
The scheme is retrospective and runs from 1 March – 31 May 2020. It might be extended, but we will have to wait for the Government to make that decision.
As long as the employee was on the payroll as of 19 March 2020 (so, the day before the scheme was announced) then they will be eligible. This changed from the original date of 28 February, so some new starters will be mopped up.
You can furlough employees who have been self-isolating, shielding or are having difficulty working due to caring obligations. I think all of these things are caught by the wording “your operations have been severely affected by coronavirus”.
“All employers are eligible to claim under the scheme”. This includes charities, social enterprises, recruitment agencies and public authorities.
Employers can re-hire employees temporarily who were dismissed or made redundant. We have helped a number of clients to do this.
You can furlough your apprentices – encourage them to keep doing the learning and studying whilst on furlough and to use their time to complete assignments. If they have to do some actual training during furlough, then you will have to top up their furlough pay to at least the appropriate National Minimum Wage rate.
What are the time periods?
Remember that furlough needs to be taken in three week blocks.
You can bring someone back to work and then put them back on furlough – as long as these are three week blocks. You can also rotate employees on furlough.
Does taking holiday during furlough break the furlough?
Holiday remains the greyest area to date. We were waiting for some further clarification on the taking of holiday during furlough – but none has been announced this week.
ACAS guidance is helpful to confirm that holiday CAN be taken during furlough. So this means that holiday will not break the blocks of furlough being taken. We are recommending that the furlough letter sets out whether the employer expects that accrued leave should be taken during the furlough period. The same is true for the Bank Holidays (four of them will fall during the initial period of the scheme) – and if you are paying 80% of salary then the days of leave taken during furlough will have to be topped up to 100% (so you just have to pay another 20%).
Can the employee work elsewhere during furlough?
Yes they can – as long as it is not for a business associated with their employer.
Initially there was some disagreement about this and I really thought that employees would not be allowed to have another temporary job whilst on furlough. I understand that the agricultural sector lobbied the government to ensure that furloughed workers would be free to work as pickers. So this might have had an impact. Lots of people have also found work in supermarkets.
Employees on furlough can also be volunteers and many are doing sterling work – so this is a good thing.
A quick summary of points
Employees who are shielding or have caring responsibilities can be furloughed – at the discretion of the employer (it is not the absolute right of the employee to be furloughed).
An employee who has been transferred through TUPE is eligible to be furloughed.
Full time, part time, temporary contract, zero hours, variable hours contract….all eligible to be furloughed. Calculate variable salary as an average over the last 12 months or the amount of time they have been employed (if less than 12 months).
Remember that the furloughed employee needs to have communication in writing (letter or email) about being furloughed.
You need to keep a record (preferably on your personnel system – please have a chat to us if you need to get your HR management system in the cloud….you really would be making life easier for yourself if you stepped away from paper personnel files!)