CORONAVIRUS – latest update 15/04/2020

ADVICE FOR EMPLOYERS

 

There have been a number of minor updates and some additional clarification received from HMRC and UK Government over the weekend as well as today and this bulleting highlights the changes, answers some of the questions being asked and shares with you any new information.

 

We apologise in advance if there is any confusion as the guidance is not definitive and refers to “can furlough rather than must”, so you as the employer should continue to adopt best practice and comply with current employment legislation and seek appropriate advice.

 

Please review previous bulletins for other relevant information which has not changed, or email on: enquiries@wedohr.co.uk or call 01325 488425.

 

HMRC Portal

 HMRC have now clarified that they fully anticipate the portal for claiming your reimbursement for furloughed employees should be active from 20th April 2020.

 

As you will hopefully appreciate, until the portal is actually live, we will not know exactly how it will operate and so can only provide what we know as of today.  There are some observations below which you should take note of:

 

  • The guidance has changed and now states the Coronavirus Job Retention Scheme (CJRS) is available for a period of 3 months from 1st March 2020 (previously the guidance was 12-weeks) so this should be seen as a positive
  • From today, UK Government has extended the cut off date for eligibility for employees to 19th March 2020 (previously 28th February 2020) which means that employees caught between the 1st March and the announcement of the CJRS will now be eligible if employers wish to furlough them provided:
    • the employee was on your PAYE payroll on or before 19th March 2020; and
    • was notified to HMRC on an RTI submission on or before 19th March 2020

 

This mean that potentially employees who were on PAYE and had an RTI submission prior to 28th February 2020 and were then made redundant or stopped working prior to 19th March 2020, can qualify for the scheme if the employer re-employs them and puts them on furlough (this is substantive change notified within today’s update).

 

  • Furthermore, the previous guidance in respect of an employee who was on PAYE on or prior to 28th February 2020, made redundant and then re-employed after this (even if after 19th March 2020) is also eligible for furlough
  • Another change relates to employees on long-term sick leave as you may decide for business reasons to furlough these employees (another change, but the decision whether to do so or not, remains that of the employer)
  • Employees who have caring responsibilities as a result of Covid-19 may also be furloughed. Note that guidance currently indicates that this could apply to employees who now have to look after a child because school or other childcare facilities have closed, rather than just those with specific “care” responsibilities. (the decision is that you “can” rather than “must” furlough and so the responsibility lies with you as the employer, but this is another change which may affect your decision-making)
  • Note you are still expected to continue to pay employee wages as the CJRS grant is a reimbursement of wages paid to furloughed employees
  • Where an employee is “furloughed”, you will be able to claim from HMRC a grant of 80% of wages (up to a max of £2,500) per employee per month plus the Employer National Insurance Contributions plus Pension Contributions up to the maximum statutory amount of 3%, based on the 80% (max £2,500) calculated on the pay data on or prior to 19th March 2020 (review earlier bulletins re what to do with variable hours employees)
  • You need the following information (note this is a longer list than previously)
    • your ePAYE reference number
    • the number of employees being furloughed
    • the National Insurance numbers of the furloughed employees
    • the names of the employees being furloughed
    • the payroll/works numbers of the employees being furloughed
    • your Self Assessment Unique Taxpayer Reference or Corporation Tax Unique Taxpayer reference or Company Registration Number
    • the claim period – start and end dates (see below)
    • the amount claimed (subject to a minimum 3-week period)
    • your bank account number and sort code
    • your contact name
    • your phone number
  • You will need to calculate the amount you are claiming as HMRC will not do this

 

If you use an agent who is authorised to act for you in respect of PAYE, then they will be able to make a claim for you.  If you only use a file agent who files your RTI account but doesn’t act in any other way, then you will need to make the claim yourself.

 

  • If you have to make the claim yourself and have less than 100 employees, then you will be asked to enter information about each employee – please ensure your employees are told that HMRC will not deal with them directly under any circumstances relating to this claim.

 

Note 1:  Speak to your agent about making the claim on your behalf, they should already have the information required and the payroll information.  It is important that you have clarified with them which employees have been furloughed.

 

Note 2:  HMRC have made it very clear in recent communications that they intend to spend the next 2 years monitoring and auditing companies in order to review the reasons for furloughing of your employees and the amounts claimed, so please do not attempt to claim more grant money than you are entitled to

 

Note 3:  The CJRS furlough grant is currently available for a period for 3 months from 1st March 2020.  This may be backdated to 1st March 2020 where employees were dismissed prior to the initial declaration by the UK Government on 17th March 2020.  In most cases though the start date of furlough will be after this date, and more likely to be after 20th March 2020, when the Chancellor first announced details of the CJRS.  Hospitality and other businesses were told they must close by the end of trading on 23rd March 2020 and detailed guidance of the CJRS was not available until 26th March 2020.  You must demonstrate when you made the decision to furlough your employees as this is the start date.  Other employers have managed to remain operating for longer until circumstances have forced them to close and so the start date of furlough will therefore be after this date.  You MUST only claim for the actual period of furlough. (please ensure you are confident about when you furloughed your employees – the date of letters sent to them should be used as evidence for this)

 

Note 4:  Ensure you have a full audit trail of all employees who you have furloughed, and the reasons why, along with any letters issued to them as you may require these at a later date if investigated by HMRC.  You are required to keep any documentation in respect of the furlough process for at least 5 years.

 

TUPE

 Clarification in the latest update has confirmed that Employees subject to TUPE from one company to another after the 19th March 2020 (again note the date change), although not being on the new company payroll as of the pay data point of 19th March 2020, are eligible to be furloughed provided:

  • that TUPE rules apply in the transfer of a company or service provision contract AND that the terms and conditions of employment transfer, OR
  • business succession occurs, where the ownership of a business changes from one person to another and the new owner takes responsibility for the pay records, OR
  • the consolidation of multiple PAYE schemes occurs where employees are transferred after the 19th March 2020 into the new consolidated PAYE scheme

 

Holidays

 There has been much debate around holidays and what should occur, especially in respect of Bank Holidays.  Note that recent emergency legislation allows for employees who have been unable to take their normal holiday entitlement as a consequence of the coronavirus pandemic are able to carry over up to 4 weeks of unused holiday into the following two years.

 

In the absence of any current UK Government guidance in respect of holidays whilst on furlough there are two trains of thought:

 

Furloughed Employees

Unable to Take Holiday on Furlough

  • Despite popular belief, being furloughed is not a holiday, it is effectively garden leave where the employee remains bound to their contract of employment and can be recalled back to work as required by the employer
  • Furloughed employees are therefore unable to take holidays as they are effectively required to STAY AT HOME and it is your decision for them to do so
  • As they are unable to take a break and are being paid 80% (max £2,500) of their wages whilst furloughed, this should continue for the period of furlough and any holidays including bank holidays should be cancelled and taken by the employee at a later date

 

Able to Take Holiday on Furlough

  • Employers consider that employees are currently at home and not carrying out any work, so they are able to gain adequate rest – like being on holiday
  • Employees therefore remain eligible to take holidays and bank holidays during the period of furlough and in doing so this will not affect them being on furlough
  • The decision on when employees take holiday can be determined by the employer, giving appropriate notice which is at least twice the period of time to be taken as holiday i.e. 2 days requires 4 days’ notice and therefore you can make the employee take any accrued but untaken allowance
  • When holiday is taken, then the full normal payment for holidays should be made i.e. 100% of wages for those days, the furlough rate is paid when not on holiday

 

Whichever route you take as an employer (and the recommended preferred opinion is the former of the above) then it is highly recommended that you ensure a full audit trail for holidays requested and taken.

 

If you adopt the latter viewpoint and an employee states they do not wish to take their holiday whilst on furlough, forcing them to do so may create issues for you in the future.  However, until further clarity on this issue is provided by the UK Government, it remains your decision.

 

Non-Furloughed Employees

  • Employees who are not furloughed, including those working at home, on short-time working or temporary lay-offs continue to be able to take and use any accrued but untaken holiday entitlement
  • Where they do so, they should be paid at their full rate of pay i.e. 100% and should not carry out any work whilst doing so, such that they are able to take a rest away from working, as defined in the Working Time Regulations
  • Therefore, employees who are not furloughed are able to take a break away from work and utlise holidays

 

NMW/NLW

On 1st April 2020 there was an increase in National Minimum Wage and National Living Wage (NMW/NLW).  Again, there remains some confusion over the guidance in respect of the payment of these rates of pay to employees who are on furlough.

 

The confusion lies in whether employees are classed as “working” when on furlough and that NMW/NLW only applies when employees are working.  Current guidance states that if an employee is training whilst on furlough then they must be paid at least the NMW/NLW at 100%, so definitely based on the 1st April 2020 increase.

 

However, any pay rise in wages for an employee than occurred after 1st March 2020, should morally be paid to any employees whether on furlough or not.  This includes NMW/NLW increases, which became effective on 1st April 2020.

 

The CJRS allows for the underpayment of NMW/NLW while employees are on furlough and that they can be paid only 80% of their wages (except when training).  As the calculation of the claim via the HMRC portal is to be based upon pay data as of 28th February (see the exceptions in earlier bulletins re; variable hours employees), then if the NMW/NLW increase is paid then you will be paying greater than the 80% out to your employees than you are claiming back.

 

This is again your decision, but we advise paying the increase.

 

Recalling Employees from Furlough

 The minimum period an employee can be furloughed is for 3-weeks assuming the employer intends to claim reimbursement from the CJRS through the HMRC portal.

 

As the employer, you have the right to recall employees from furlough.  This may be due to the business resuming some or all of its operations and your employees should be notified of the company’s intentions in this respect.

 

If you have a short-time working clause in a signed contract of employment, then you may also be able to bring employees back to work on shorter hours to allow for a gradual restart of your business.  You may also choose to furlough employees for a 3-week period and then bring them back to work, alternating with other employees that you then furlough for 3-weeks (minimum).

 

You should at all times give due regard to adopting a fair process when choosing who to furlough and who to retain at work.

 

If the recall to work is prior to an employee being on furlough for the minimum 3-week period, then the employer cannot claim the grant money for HMRC and the liability for ensuring payment of wages remains your responsibility.  In addition, unless you have agreement to pay only 80% of salary (max £2,500) then you may be liable for the full 100% of wages during the period where furlough was broken.

 

Such decision should be made carefully, but if there is work and you can maintain safe working arrangements, then you may decide to resume your business operations early.

 

We do HR/We do Health & Safety Limited can help with these procedures, but in essence Safe Working Arrangements should include provision of additional PPE (Personal Protective Equipment), increased hygiene and sanitisation processes, additional workplace cleaning routines, increased safety signage, training and methods to achieve social distancing within the workplace.

 

Comment:

Finally, another contentious issue is whether there is an entitlement to be furloughed or not.  Some public commentators have stated that employees should demand to be furloughed by their employer as is their right, and the slight variances in the available guidance gives vent to such views.

 

However, the furlough scheme has been put in place by the UK Government as a “Coronavirus Job Retention Scheme”.  It appears clear by definition that it is designed to support businesses in the UK during the coronavirus crisis, so that it helps companies to reduce overheads (staffing costs), whilst maintaining the links with their employees, who under normal circumstances would be subject to redundancy or lay-off, so that when business and personal life returns to normal they will hopefully have work to return to.  In other words, the business survives the crisis and there is a “retention” of employees who may otherwise have ended up unemployed.

 

The term “furlough” has not existed in common use in the UK until this situation and therefore would be unlikely to be found within an individual’s Employment Contract as a specific clause to allow the furloughing of employees.  Hence the agreement of employees is required, although in most cases this will be gained, as the alternative is likely to be redundancy.

 

As the employer, you must decide whether to furlough your employees or not. In doing so you must give due regard as to whether you will be eligible for the grant from HMRC.

 

Given that HMRC intend to review most claims, you should ensure you have strong justified reasons for furloughing your employees.  The statement by the UK Government is that every company is eligible for the CJRS and able to claim the grant back for those employees that are furloughed rather than lose their jobs.

 

However, UK Government has also stated that staying at home is essential unless employees have to go out to go to work, in the event that they cannot work from home.  In consideration of this, the implication is that if employers can support their employees working from home and still being paid then they should do so.  The automatic furloughing and shut down of business does not necessarily mean the employees are eligible and you should carefully consider your reasons for furloughing your employees.

 

The easy decision is for businesses that have been told they MUST close such as hospitality and additional businesses effective from 23rd March 2020 as stated in earlier Government guidance: https://www.gov.uk/government/publications/further-businesses-and-premises-to-close and it is reasonable (exceptions considered) that the furloughing of employees in these businesses is reasonable and would achieve eligibility.

 

The question remains regarding businesses that were not instructed to close and chose to do so.  It is hoped that UK Government will stand by employers who made the right choice to furlough employees in order to protect the workforce and slow the spread of the virus, but the clear indication from HMRC that they will carry out audits and investigations over the next 2 years is concerning.  Consequently, you are strongly advised to be able to demonstrate you have a legitimate reason for furloughing your employees, so that HMRC does not find you to have claimed when you are not entitled to do so.

 

Key Points to Note:

It is hoped that the above helps to clarify some questions, rather than create more for you, however the UK Government continues to provide updates that differ from previous guidance.  We shall endeavour to keep you appraised of these as soon as we are aware of them.

 

HMRC have made it categorically clear that they intend to reserve the right to both retrospectively review and audit your claim after the scheme ends and will continue to monitor companies after the scheme has closed, so please ensure you are claiming only what you are entitled to.  Note the guidance of 15th April 2020 states “HMRC will check your claim, and if you are eligible, pay it to you by BACS to a UK bank account

 

In addition a Covid-19 Policy for use in your company as well as some additional letters are available upon request.

 

 

This advice is being reviewed and updated regularly and is currently in line with Government and ACAS guidance as updated 15th April 2020.

 

Should you require any further advice or guidance please call us on our usual HR number of: 01325 488425 or email: enquiries@wedohr.co.uk