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11 November 2020
Who can be furloughed?
Can employers furlough from 1 November 2020 if they had no agreement in place before this?
Is flexi-furlough still possible?
How should employers furlough employees?
Can employees be re-employed to be furloughed?
How do employers calculate how much they can claim?
Is the process for making furlough claims the same?
What happens for employees who are sick, shielding or carers?
What can employees do while they are furloughed?
How long should employers keep employees furloughed?
What happens to holiday while employees are furloughed?
Are there restrictions on making employees redundant?
Can employers still claim the Job Retention Bonus?
What's happened to the Job Support Scheme?
The government's Coronavirus Job Retention Scheme (CJRS, the furlough scheme) has been extended until the end of March 2021. Although this is welcome and will allow for more effective business planning, the new five-month extension may mean that some employees will spend an entire year on furlough.
The CJRS had already been extended until December 2020 to reflect the new lockdown in England (for further details please see "Furlough scheme extended as England prepares to enter new lockdown"). On 5 November 2020 Chancellor of the Exchequer Rishi Sunak announced in the House of Commons the further extension to the end of March 2021. The key points are as follows:
The government released a policy paper setting out some of the details of the furlough scheme extension, which stated that full guidance would be published on 10 November 2020. As the guidance had not appeared by the time this article went to press, it discusses what is currently known about how the scheme will operate.
To be eligible for the scheme, employees must have been on the pay-as-you-earn (PAYE) payroll on 30 October 2020. That means that a real-time information (RTI) submission notifying payment for that employee to Her Majesty's Revenue and Customs must have been made between 20 March 2020 and 30 October 2020.
Employers can claim under the scheme even if they have never used the CJRS before or have not furloughed the employees in question before. When the furlough scheme was last extended, a cap was imposed which meant that employers could not claim for more people than they had furloughed previously. At present, it is unknown whether that cap still applies and government clarification is awaited.
Yes, but only if they act quickly. It is possible to backdate to 1 November 2020 provided that a retrospective agreement is put in place by the end of the day on 13 November 2020. This backdated agreement will be dependent on employees genuinely having been furloughed during this time. If employees have actually been working all of their usual hours, furlough cannot be backdated.
Flexible furlough continues to be an option, meaning that employees can work part-time and receive a furlough grant for their unworked hours. Employers will pay employees' wages for the hours that they work as normal and claim for the furloughed hours, with reference to employees' normal working hours.
Employers seeking to use CJRS either to extend furlough for employees already on the scheme or to put new employees on furlough will need to get the employees' agreement. For employees already on the scheme, now would be a good time to pause and consider whether it is best to extend furlough on existing terms or revisit and potentially tighten arrangements.
Employees who were on the payroll on 23 September 2020 who have since been made redundant or stopped working for the employer can be re-employed and furloughed. Again, the PAYE RTI submission must have been made for that employee on or before 23 September 2020. Employees on fixed-term contracts that have expired since 23 September 2020 can also be re-employed and claimed for.
The last-minute nature of the announcement regarding the furlough extension means that some employers will likely have made redundancies anticipating the end of the scheme at the end of October 2020 (and some may have employees still in an appeal process). In many cases, employers may well have referred to the ending of the furlough scheme as part of the rationale for redundancies.
This makes it likely that former employees will ask to be rehired. If they do, employers have no legal obligation to take them back, but they may feel a considerable degree of moral pressure. This is particularly the case if there is a real possibility that circumstances may change so that the employee will be able resume active employment in March 2021. However, employers will need to weigh this against the additional cost of employer NICs and pension contributions and consider the vexed question of what to do regarding any redundancy payments already made. If employers are considering rehiring an employee, they should take advice and consider the ways in which possible risks can be mitigated.
If an employee was already furloughed, the same calculations that the employer was already using continue to apply. For newly furloughed employees, there will be a different reference period and calculation. There is more information here.
Although the process is the same, there is a shorter claim window. Claims relating to November 2020 must be made by 14 December 2020. Claims relating to each subsequent month should be submitted by day 14 of the following month. For employers with a significant number of furloughed employees, this means that they will need to plan ahead and be organised in order to avoid paying employees but missing the deadline to reclaim the government contribution.
It is possible to furlough employees who are shielding in line with public health guidance (or need to stay at home with someone who is shielding) or who have caring responsibilities resulting from COVID-19. However, employers have no obligation to furlough those employees. The CJRS is not intended to be used for short-term sickness absence, but if an employee is currently off sick, they can still be furloughed. If an employee becomes ill while on furlough, the employer can choose whether to move the employee onto statutory sick pay (SSP) or pay them at their furloughed rate (provided that is at least as generous as SSP).
Earlier in 2020, employers faced requests from 'worried well' employees asking to be furloughed. In part, that was as a result of uncertainty about risk and transmission. As there is now more available information about these issues and how to make workplaces COVID-19 secure, employers may not want to take the same approach – particularly where work is available. Certainly, employers will have no obligation to accept such a request.
Furloughed employees must do no work for their employer during the periods which are being claimed for but can still take part in training and volunteer for another organisation. If the employment contract allows, furloughed employees can work for another employer.
Although the scheme has been extended until the end of March 2021, the government gave a clear signal that employers may be expected to make a greater contribution from January 2021. Therefore, employers should be prepared to revisit their furlough arrangements in the New Year and decide whether the scheme still works for them if the government subsidy reduces. (Furlough agreements should reflect the employer's right to do this.)
Employees continue to accrue holiday allowance while they are furloughed. Employers could agree with employees to reduce any enhanced contractual holiday (beyond the statutory minimum of 5.6 weeks per year) to reflect the fact that an employee has been furloughed, but employees will retain their right to 5.6 weeks' annual leave under the Working Time Regulations. Given the length of time that employees may have been furloughed, they may have accrued a large amount of holiday by now. Employees can still take their holiday while on furlough but may be reluctant to do that, so employers may need to be proactive.
Employers can require employees to take holiday during furlough, by giving twice as much notice as the length of the holiday that they want them to take (eg, 10 days' notice for five days' holiday), unless the contract states otherwise. However, previous guidance stated that employees must be paid at their usual holiday pay rate for their statutory minimum holiday (5.6 weeks), not at their reduced holiday rate. This means that asking employees to take holiday can be expensive, at a time when finances are tight. Employers are still free to agree a different rate of pay for contractual holiday over and above the statutory minimum holiday entitlement of 5.6 weeks.
No, under the CJRS there is no restriction on redundancies (although no part of the furlough grant can go towards paying redundancy pay). Several cases are pending in which employees have challenged the fairness of their redundancies on the basis that furlough should have been considered as an alternative to redundancy. Those cases have not yet been decided, but it will be important to have a clear business rationale for considering redundancies. It is also important to emphasise that furlough is not a cost-neutral option, because of the costs relating to NICs, pension contributions and accrued holiday.
Employers that brought back workers from furlough and kept them in employment until the end of January 2021 were previously in line for a £1,000 bonus per employee, which for large employers could have represented a valuable cash injection. Now that the CJRS has been extended, the bonus is off the table and will not be paid in February 2021 as planned. Instead, the government states that a retention incentive – the value of which is unclear – will be "deployed at the appropriate time" because the policy intention behind the Job Retention Bonus has fallen away.
The government had intended to replace the furlough scheme with the less generous Job Support Scheme (JSS), which had different arrangements depending on whether a business was open or had been legally forced to close. The JSS has now been shelved indefinitely. Businesses that had already established JSS agreements in anticipation of the scheme's launch should contact affected employees to get their agreement to being furloughed instead.
For further information on this topic please contact Lucy Lewis, Colin Leckey or Sophie Jamieson at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
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