An Update to Furlough - as of 7 April 2020

Over the weekend the Government updated additional information on claiming furlough payments when employers use the Coronavirus Job Retention Scheme (CJRS). Our first update, giving a general overview of furlough was published on the 26 March 2020.

We have summarised this below, however this is a constantly changing situation and we recommend you read the full guidance here.

Some of the key points that remain unclarified are:

1. The impact of TUPE transfers where employees were placed onto the new employers’ payroll after 28 February 2020.
    
2. Whether annual leave can be taken during a period of furlough leave, however, ACAS have updated their guidance to suggest it can be taken including bank holidays.

However, there was a great deal of additional information outlined in this recent update and it is helpful for the purposes of establishing entitlement and payments, these are broadly:

1. Employers must provide written documentation confirming furlough.  The documentation must be retained for a period of 5 years. 
    
2. Employees who have been advised to shield, those who live with a person who has to shield or their carers along with those who cannot work due to not having childcare can be furloughed.  It is important to note that the usual discrimination laws will continue to apply and therefore, this should not be a selection criteria if you need to furlough a set percentage of your workforce.  We highly recommend you speak to an HR specialist or Employment  Solicitor.    
    
3. Employees placed onto furlough can take up a new role with a different employer, subject to approval by the primary employer and the contract of employment.  At JCP we would advise employers to exercise discretion and grant approval where a contract prohibits secondary employment, however, any approval should clearly set out they must return to work for the primary employer at any time.   An HR specialist or Employment Solicitor can provide you with the appropriate drafted letters to this effect.
    
4. Directors can be furloughed as long as they do not undertake any work for the company.  They can however, continue to perform statutory duties. 
    
5. It has now been determined that 80% of fees can be reclaimed, these were previously excluded, however it  remains unclear what they are defined as.  Bonuses remain excluded from the scheme.  
    
6. When putting together a claim you cannot include the value of non-cash benefits for example, a company car or health insurance premiums.  Employers will still need to meet the costs for these outside of the CJRS.
    
7. Employees can be furloughed more than once, so for example, they can take a period of furlough leave (3 weeks), return to work and then be furloughed for a second period.

JCP’s Employment and HR team is receiving a lot of enquiries with questions for tailored support.  To help streamline this service for businesses we have put together the following package to help employers receive comprehensive and cost-effective advice.  This package includes:-

• A review of all your employment contracts
• The recommended letter to seek permission
• The letter of notification
• Selection matrix if required
• A process flow that deals with pooling and selection
• Letters of approval for temporary secondary employment
• An hour of advice with an HR Advisor

For more information call our Employment and HR team today on 03333 208644, email law@jcpsolicitors.co.uk, or use our Live Chat facility.

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Please note this article was published on 7 April 2020. This article does not constitute legal advice and is provided for general information purposes only.