Furlough: Coronavirus Job Retention Scheme

The Coronavirus Job Retention Scheme was set up to reimburse a proportion of 'furloughed' employees' wages i.e. employees on a leave of absence who are kept on your payroll. It is to remain in its current form until the end of June 2020, and in a revised form until the end of October 2020. The final date by which an employee can be furloughed for the first time is 10 June 2020.

The following FAQs are based on current Government guidance and 'Treasury Directions'. Treasury Directions take precedence over Government guidance. Please contact us for advice before furloughing employees or before acting on the information below as government guidance is being regularly updated.

There is a separate Workbox page with FAQs on Ending Furlough and Lockdown.

Which employers can apply for reimbursement under the scheme?

All UK employers (including businesses, charities, recruitment agencies (where agency workers are paid through PAYE) and public authorities) are eligible, provided they have:

a PAYE scheme registered on HMRC's real time information system at the time of making the claim, and that scheme was registered on or before 19 March 2020;
enrolled for PAYE online; and
a UK bank account.

Administrators can access the scheme on behalf of a company in administration.

Does it apply to the public sector?

Although the scheme is available to public sector organisations, the Government expects that it will not be used by many as they will continue to provide essential public services or contribute to the response to the coronavirus outbreak.

Where employers (public sector or non-public sector) receive public funding for staff costs, and that funding is continuing, the Government expects them to use that money to continue to pay staff in the usual fashion – and not furlough them.

Separate guidance has been issued on how payments to suppliers of contingent workers impacted by COVID-19 should be dealt with where the party receiving the contingent worker's services is a Central Government Department, an Executive Agency of a Central Government Department or a Non-Departmental Public Body.

How do we apply for a grant under the scheme?

HMRC has set up an online system, which you can access here.

You will need to calculate the amount you are claiming. HMRC will be able to retrospectively audit claims, and may ask you for additional information at any time

You should reduce wages within payroll before they are paid – the adjustment will not be made by HMRC.

You can only make one claim in respect of a 'claim period' – and claim periods cannot overlap. You can decide on the length of your claim period. Your claim will need to include all of the employees you want to furlough for that claim period.

You can make your claim in anticipation of an imminent payroll run, at the point you run your payroll, or after you have run your payroll.

If you are eligible you will receive the grant from HMRC by BACS to a UK bank account. You must then pay the employee all the grant received for their gross pay.

Claims can be backdated to 1 March where employees have already been furloughed (see below).

From 1 July:

Claim periods will no longer be able to overlap months (to reflect the forthcoming changes to the Scheme - see below).
The number of employees claimed for in any claim period cannot exceed the maximum number claimed for under any previous claim under the Scheme.

Do we need to document the furlough arrangement in writing?

Yes - see below.

When flexible furloughing is introduced in July (see below), you must agree any new flexible furlough arrangement with the employee; and confirm that agreement in writing.

You should also retain all records and calculations in respect of your claims.

What period can we claim the grant in respect of?

You can claim reimbursement of salary for the period since 1st March 2020, if employees have been furloughed since that date. The start date for a claim should be the date an employee moves onto furlough, not when you make the decision to furlough.

The scheme is to remain in its current form from 1 March 2020 until 30 June 2020, and thereafter in a revised form until 31 October 2020. From the start of July furloughed employees will be able to return to work part-time - you will be able to claim under the scheme for normal hours not worked. A new taper requiring employers to contribute to furloughed salaries will be brought in from August. The final date by which you can furlough an employee for the first time will be 10 June. For more information see below and the government fact-sheet.

How quickly can we claim the grant?

The online system opened on 20 April 2020 (but pay can be backdated to 1 March 2020 if the conditions of the scheme are satisfied).

The government has advised that payments will be made to employers within 6 working days. Employers are advised not to contact HMRC unless it has been more than 10 working days since a claim was made and no payment has been received in that time.

Which workers are covered by the scheme?

The scheme applies to individuals who are subject to PAYE on any type of contract including full-time, part-time, agency, flexible and zero-hour contracts.

Must have started work with you on or before 19 March 2020

You can only claim for furloughed employees if they were:

employed with you on 19 March 2020; and
on your PAYE payroll on or before 19 March 2020; and
notified to HMRC by you on a 'real time information' (RTI) submission on or before 19 March 2020.

Was the employee employed with you as of this date?	Date RTI submission notifying payment was made to HMRC	Eligible for Job Retention Scheme?
28 February 2020	On or before 28 February 2020	Yes
28 February 2020	On or before 19 March 2020	Yes
28 February 2020	On or after 20 March 2020	No
19 March 2020	On or before 19 March 2020	Yes
19 March 2020	On or after 20 March 2020	No
On or after 20 March 2020	On or after 20 March 2020	No

Employees who TUPE transferred after 28 February

You can claim under the scheme in respect of employees who transferred to you after 28 February 2020 (this date had changed to 19 March 2020, but has now gone back to original date of 28 February 2020) if either the TUPE or PAYE business succession rules apply to the change in ownership. Contact us to discuss whether these apply in your circumstances.

Payroll consolidation

If you are part of a group of companies with multiple PAYE schemes and there is a transfer of all employees from these schemes into a new consolidated PAYE scheme after 28 February (this date had previously been 19 March 2020), the new scheme will be eligible to furlough those employees.

Employees who stopped working for you after 28 February 2020, or after 19 March 2020

Employees who were on your PAYE payroll as at 28 February 2020 and notified to HMRC on an RTI submission on or before 28 February, and were made redundant or stopped working for you on or after 28 February 2020, can qualify for the scheme if you re-employ them and put them on furlough (even if you don't re-employ them until after 19 March). You can claim for their wages from the date you put them on furlough.

You can also re-employ individuals, put them on furlough and claim for their wages through the scheme, if you made them redundant or they stopped working for you on or after 19 March 2020. This applies if they were employed with you on 19 March 2020, on your PAYE payroll on or before 19 March 2020, and notified to HMRC on an RTI submission on or before 19 March 2020.

However, if an employee has moved to a new employer, and is being furloughed by them, you should not re-employ them and put them on furlough.

You are not obliged to re-employ employees in this way and you may want to take advice on whether to do so, particularly if you have already paid redundancy payments to these employees and if you wish that to be repaid. Re-hiring such employees may lead to additional liabilities in some cases (for example, if by re-employing them they would gain two years' service). If you do decide to re-employ such employees, act consistently so as to minimise the risk of discrimination claims.

The rules are different for individuals on fixed-term contracts – see below.

Fixed-term contracts

If an employee's fixed-term contract has not already expired, you can extend or renew it. You can claim for them through the scheme if an RTI payment submission was notified to HMRC on or before 19 March 2020.

You can re-employ employees on fixed-term contracts which have expired, place them on furlough, and claim through the scheme if either:

their contract expired after 28 February 2020 and an RTI payment submission for the employee was notified to HMRC on or before 28 February 2020; or
their contract expired after 19 March 2020 and an RTI payment submission for the employee was notified to HMRC on or before 19 March 2020.

However, if an employee has moved to a new employer, and is being furloughed by them, you should not re-employ them and put them on furlough.

Employees (whether fixed-term or not) who started and ended the same contract between 28 February 2020 and 19 March 2020 do not qualify for the scheme.

Specific guidance on different categories of workers

The Government guidance has specific sections on how the scheme applies to:

Foreign nationals. Foreign nationals are eligible to be furloughed. Grants under the scheme are not counted as 'access to public funds', and you can furlough employees on all categories of visa.
Agency workers (including those employed by umbrella companies). Furloughed agency workers should perform no work through or on behalf of the agency, including for the agency's clients. If a worker is employed by an umbrella company that operates PAYE, it is for the umbrella company and the worker to agree whether to furlough the worker or not.
Workers (who are not 'employees'). Workers paid through PAYE can be furloughed through the scheme (even if for employment law purposes they are 'workers' rather than 'employees'). Individuals paying tax on their trading profits through self-assessment may be eligible for the Self-Employed Income Support Scheme.
Apprentices. See below FAQs.
Office holders - for example, trade union officers and club secretaries.
Company directors - see below.
Salaried members of Limited Liability Partnerships. The terms of the LLP agreement may need varied to reflect the fact that the member will perform no work and how this will impact their remuneration. The appropriate reference salary is the member's profit allocation excluding any amounts determined by the member's performance, or the performance of the LLP.
Contractors with public sector engagements in scope of IR35 off-payroll working rules (IR35). Public sector bodies will follow the Crown Commercial Services guidance in most cases. In a small number of cases, for example, where organisations are not primarily funded by the government and whose staff cannot be redeployed to assist with the coronavirus response, it may be appropriate to claim under the Coronavirus Job Retention Scheme. Contractors who are deemed employees according to the off-payroll working rules might be eligible. The Government guidance provides more detail on the mechanics and conditions of a claim in these circumstances.

Scheme closing to new entrants from July

From 30 June the scheme will close to anyone who has not already been furloughed for a full 3 week period. This means that the final date by which you can furlough an employee for the first time will be 10 June.

In what circumstances can someone be furloughed?

The Treasury Direction states that an employee can be furloughed 'by reason of circumstances arising as a result of coronavirus or coronavirus disease'. For advice on whether this covers your own situation, please contact us, as the extent to which particular situations are covered is not yet clear.

The Direction states that claims must not be 'abusive' or otherwise contrary to the purpose of the scheme.

The guidance states that HMRC will check claims made through the scheme; and that payments may be withheld or need to be repaid in full if the claim is based on dishonest or inaccurate information or found to be fraudulent.

Company directors

Company directors can be furloughed, including salaried individuals who are directors of their own personal service company.

Any decision to furlough a company director must be formally adopted as a decision of the company, noted in the company records, and communicated in writing.

As with other workers, furloughed directors should not do any work for, or on behalf of, the organisation during furlough - as discussed below. However, there are some exceptions, and furloughed directors can still:

Carry out statutory duties relating to the filing of company accounts or provision of other information relating to the administration of the company;
Make claims under the Job Retention Scheme in respect of employees of their company;
Pay salary / wages to employees of their company; and
Fulfil duties as the trustee or manager of an occupational pension scheme (unless your business involves providing services as a trustee or manager of the scheme) – but contact us for advice on the detail of this exception.

Company directors who are paid annually are eligible to claim under the scheme, as long as they meet the other conditions discussed above, including being notified to HMRC by you on a 'real time information' (RTI) submission on or before 19 March 2020 in relation to a payment of earnings in the 2019/2020 tax year.

Employees on unpaid leave

If an employee started unpaid leave before 1 March 2020, you cannot furlough them until the end of the period that had been agreed for their unpaid leave.

However, if an employee started unpaid leave before 1 March 2020, and then, after the date on which they started unpaid leave, but before 20 March 2020, you agreed a revised end date for their period of unpaid leave, you can put them on furlough immediately after that revised end date.

If an employee started unpaid leave on or after 1 March 2020, you can stop their period of unpaid leave, and put them on furlough instead.

You cannot claim via the scheme in respect of any period of unpaid sabbatical or other unpaid leave.

For employees on fixed pay who are furloughed after a period of unpaid leave, when calculating 80% of their wages, use the amount they would have been paid if they had been on paid leave (calculated in the same way you would calculate holiday pay under the Working Time Regulations).

Employees who are self-isolating or on sick leave - can we put them on furlough?

The government guidance states that short-term illness / self-isolation should not be a consideration in deciding whether to furlough an employee. You cannot reclaim statutory sick pay via the Job Retention Scheme.

However, the guidance also states that if you want to furlough employees for business reasons, and they are currently off sick, you can place these employees on furlough. This includes employees on long-term sick leave. To put these employees on furlough, you must agree a date with them for their 'period of incapacity for work' to end – please contact us to discuss whether this is appropriate in a particular case, and how to approach these discussions. Their sick pay (including statutory sick pay) will then stop, and their period of furlough can start immediately after that.

For employees on fixed pay who are furloughed on their return from sick leave, you should calculate claims against their salary, before tax (calculated in the same way you would calculate holiday pay under the Working Time Regulations), not the pay they received whilst on sick leave. For those on variable pay, you should use the highest of either (i) 80% of the same month's wages from the previous year (up to a maximum of £2,500 per month); or (ii) 80% of average monthly wages for the 2019-2020 tax year (up to a maximum of £2,500 per month).

Furloughed employees who become sick

If an employee who is already on furlough becomes sick, you can decide whether to move them onto sick pay, or keep them on furlough (at their furloughed rate):

If you keep them on furlough, you can continue to claim for their furloughed pay via the Job Retention Scheme. However, their rate of pay on furlough must be at least at the level of statutory sick pay.
If you move them onto statutory sick pay, you can no longer claim for their furloughed salary through the Job Retention Scheme – you would need to pay statutory sick pay. However, you may qualify for a rebate for up to 2 weeks' statutory sick pay via the SSP rebate scheme.

You can claim back from both the Coronavirus Job Retention Scheme and the SSP rebate scheme for the same employee, but not for the same period of time. You cannot claim under the SSP rebate scheme for any period of time in respect of which an employee is on furlough.

Employees who are shielding (as opposed to social distancing)

If an employee is unable to work because they are shielding in line with public health guidance (or need to stay at home with someone who is shielding), the government guidance advises that you can opt to furlough them. However, it may be possible for these individuals to work from home – if so, you should facilitate this.

The guidance previously stated that you could only furlough these individuals if you would otherwise need to make them redundant, but this condition has now been removed from the guidance.

Although this was not originally the case, amended Regulations now allow for these individuals to receive statutory sick pay, however, the notes to these Regulations explain that statutory sick pay is only intended to be used as a safety net if an employer decides not to furlough these individuals, and they cannot work for home, and they are not covered by another of the employer's policies (such as a 'special leave' policy, which might provide for pay in these circumstances).

Note that 'shielding' only covers those with the most serious health conditions as per the Government guidance here.

Vulnerable employees who are not 'shielding' (i.e. pregnant, 70+, underlying health conditions)

The government guidance does not deal with vulnerable employees who are not within the group (described above) who are required to 'shield' - so it does not provide guidance on pregnant women, employees aged 70 or over, or who have underlying health conditions which increase their risk of coronavirus (but don't result in them being in the 'shielded' group). We discuss the options as regards these employees in our Coronavirus: FAQs for Employers.

Employees with caring responsibilities

Employees who are unable to work because they have caring responsibilities can be furloughed. So, employees who have to look after children can be furloughed. For advice on additional requirements that may apply, and how to deal with multiple requests for furlough from employees with caring responsibilities where there is work for them to do: contact us.

Family-friendly leave and furlough

Employees can be on furlough and family leave at the same time.

Statutory maternity, paternity, adoption and shared parental and parental bereavement payments apply as normal – so if an employee on family leave is furloughed and is entitled to statutory pay, they will retain that entitlement. You cannot claim for these statutory payments via the Job Retention Scheme.

If an employee has been on furlough, and then starts family leave on or after 25 April 2020, when confirming their eligibility for statutory pay, and calculating their statutory pay rate, you should use the rate of pay they would have received if they had not been on furlough.

If you offer enhanced pay during family leave, you can claim via the Job Retention Scheme for 80% of the enhanced element (subject to the cap).

Employees who are furloughed after they return from family-related statutory leave

You should calculate claims for employees on fixed pay who are furloughed after their return from family-related statutory leave (including maternity, paternity, shared parental, adoption, parental bereavement and unpaid parental leave) against their salary, before tax (calculated in the same way you would calculate holiday pay under the Working Time Regulations), not the pay they received whilst on family leave.

For those on variable pay, you should use the highest of either (i) 80% of the same month's wages from the previous year (up to a maximum of £2,500 per month); or (ii) 80% of average monthly wages for the 2019-2020 tax year (up to a maximum of £2,500 per month).

Can an employee opt to return early from maternity leave and be put on furlough?

An employee may wish to return early from maternity leave, if you will agree to them being put on furlough, so that they can receive 80% of normal wages, rather than what they are receiving as maternity pay (which, in the later stages of maternity leave, is likely to be lower than 80% of normal wages, or even nothing). Normally, employees must give at least 8 weeks' notice to return early from maternity leave, but you are usually able to accept less notice than this if you wish.

The government guidance currently says that someone ending their maternity leave early will not be eligible for furlough pay until the end of the 8-week notice period – it is not clear whether you can claim for the furlough grant earlier, if you agree to accept less than 8 weeks' notice.

If someone cuts their maternity leave short in this way, they will not be able to return to maternity leave after the furlough scheme ends. However, depending on the circumstances, it may be possible for them to take a further period of leave as shared parental leave – however, they would need to comply with the usual notice provisions for this – see Shared Parental Leave: Mothers.

Employees who receive maternity allowance

The guidance says that if your employee receives maternity allowance (as opposed to statutory maternity pay) during maternity leave, they should not get furlough pay at the same time. It says that, if such an employee agrees to be put on furlough, you should advise them to contact Jobcentre Plus to stop their maternity allowance payments. However, contact us if you want to discuss this.

Additional issues if you are furloughing employees sponsored under Tier 2 of the immigration system

Sponsored workers must be paid a specific salary under the immigration rules. If that salary reduces, there are likely to be reporting obligations to UK Visas and Immigration. UKVI has produced updated guidance on what salary reductions are permitted as a result of furlough. We suggest you take advice on a case by case basis.

What if an employee has more than one employer?

If an employee has more than one employer, they can be furloughed for each job. The cap applies to each employer individually. Employees can be furloughed from one job, and receive a furloughed payment, but continue working for another employer.

Can an employee start working for another employer while on furlough?

You can, but don't have to, allow a furloughed employee to go and start a temporary period of work for another employer during their period of furlough with you. However, this cannot be with any organisation that is linked or associated with you.

Check if your current contracts of employment restrict outside employment with competitors or otherwise. You may wish to require employees to seek consent before taking up new jobs during furlough.

How much will be reimbursed and what does it cover?

You can claim the lower of (1) 80% of an employee's 'reference salary'; or (2) £2,500 per month (or, if the employee is paid daily or on some other periodic basis, the appropriate pro-rata amount), plus the associated employer national insurance contributions and employer pension contributions that are paid on the subsidised furlough pay (up to the level of the minimum auto-enrolment employer contribution).

An employee's 'reference salary' is the amount payable to the employee in the latest salary period ending on or before 19 March 2020. However, if you placed employees on furlough before 15 April 2020, and based furlough payments on their salary as at 28 February 2020 (which was the date set out in the original guidance), your first claim under the scheme can be based on those payments.

You can claim for any 'regular payments you are obliged to make'. This includes wages, non-discretionary overtime (e.g. payments you are contractually obliged to pay the employee at a set and defined rate for the overtime that they have worked), non-discretionary fees, non-discretionary commission payments, piece rate payments and non-discretionary payments related to the timing of shifts or additional responsibilities; but excludes discretionary bonuses, tips (including those distributed through troncs) and discretionary commission payments. If you are unclear about what can be included, or whether a certain payment is 'discretionary': contact us.

In calculating the reference salary, you should not include benefits in kind, or anything provided in lieu of a cash payment. You should not include benefits provided through salary sacrifice schemes (including pension contributions) that reduce an employee's taxable pay i.e. for those with fixed hours the 80% figure will be based on the actual (post-sacrifice) salary paid to the furloughed employee. You must pay the employee all of the grant you receive to cover their furlough pay in the form of money – no part of the grant should be netted off to pay for the provision of benefits or a salary sacrifice scheme. If you provide benefits to furloughed employees, including through a salary sacrifice scheme, these should be in addition to the wages that must be paid under the Coronavirus Job Retention Scheme. Our Pensions team has written a blog: Furlough and salary sacrifice: what employers need to know.

Normally, an employee cannot switch freely out of a salary sacrifice scheme unless there is a 'life event' – coronavirus will count as a life event that could warrant changes to salary sacrifice arrangements if the employment contract is updated accordingly – see this blog and contact us to discuss.

Income tax and NICs will be payable on the sums received under the scheme.

The reimbursement of employer pension contributions is based on the reduced 80% furlough salary.

Any voluntary auto-enrolment contributions above the minimum mandatory employer contribution of 3% of income (if above the lower limit of qualifying earnings) will not be funded through the scheme. The maximum level of grant for employer pension contributions on subsidised furlough pay is set in line with the minimum automatic enrolment employer contribution of 3% on qualifying earnings. You can claim for pension contributions up to this cap, provided you pay the whole amount claimed to a pension scheme for the employee as an employer contribution. More information on pensions and furlough is also available on our Pensions team blog.

You must pay furloughed staff no less than 80% of their reference pay (up to the monthly cap of £2,500). You cannot reduce wages below this amount (even if the individual was to agree to it). For example, you cannot charge any administration fee.

If an employee was on unpaid leave for any part of the latest salary period ending on or before 19 March 2020, you should determine their 'reference salary' as if they were on 'paid leave' (calculated in the same way as you would calculate holiday pay under the Working Time Regulations) – contact us if you want to discuss this.

If you reduced an employee's pay to less than 80% of their 'reference salary', you can claim for the full 80%, if you make a top-up payment to the employee (to the full 80%) either before making a claim or within a reasonable period after receiving the reimbursement via the scheme – contact us to discuss the detail of this.

Company directors who are paid annually are eligible to claim under the scheme, as long as they meet the other conditions discussed above, including being notified to HMRC by you on a 'real time information' (RTI) submission on or before 19 March 2020 in relation to a payment of earnings in the 2019/2020 tax year.

Detailed guidance on calculating payments and national insurance, with examples, and a link to a calculator, is in the government guidance: Work out 80% of your employees' wages.

A new taper requiring employers to contribute to furloughed salaries is being brought in from August 2020: see below.

Do we have to top up pay to 100%?

You can choose to fund the additional 20% of wage costs, but you don't have to.

If you decide to provide top-up salary in addition to the Government grant, any employer NICs and pension contributions on that additional salary will not be funded through the scheme.

How do we calculate wage costs for employees with variable pay?

You can claim the higher of 80% of the following (subject to the cap):

the average monthly (or daily or other appropriate pro-rata) earnings from the 2019-20 tax year (or, if they have been employed less than a year, the period since they started work) up to the point furlough began; or
the actual amount paid to the employee in the corresponding calendar period in the previous year.

If they have been employed for less than one month, work out a pro-rata for their earnings so far, and claim for 80% (subject to the cap).

But bear in mind (as noted above) that you should not include payments that are not 'regular', such as discretionary bonus, tips, discretionary commission payments and non-cash payments.

Detailed guidance on calculating payments, with examples, and a link to a calculator, is in the government guidance: Work out 80% of your employees' wages.

What if an employee falls below the National Minimum Wage (NMW) because we only pay 80% of their salary?

Employees are only entitled to the NMW for hours they are actually working. Therefore, furloughed employees – who are not working – are entitled to the lower of 80% of their salary or the cap even if this means that, based on their normal working hours, this falls below the applicable NMW.

If an employee carries out training whilst furloughed they must receive at least the National Minimum Wage for doing so - see below.

Who will pay for the cost of benefits during furlough?

Employees will remain employed while furloughed and their contract of employment will remain in place. Therefore, you should provide benefits, including pension contributions, in the normal way, unless you have obtained an employee's consent to vary their entitlement to the benefits.

Benefits provided via salary sacrifice, including additional employer pension contributions, must continue during furlough (unless you have obtained the employee's agreement to vary this).

Depending on the rules of the pension scheme, pension contributions may be based on the reduced salary, but you should take advice, as this may vary according to the terms of any contract of employment / the pension scheme. We would also recommend taking advice if you have salary sacrifice arrangements in place, or are considering reducing pension contributions during furlough: contact us. More information on pensions and furlough is also available on our Pensions team blog.

How do we furlough employees?

The government guidance and rules regarding placing employees on furlough have been amended a number of times. At present, the Treasury Direction states that, to put an employee on furlough:

you must have agreed with the employee that the employee will 'cease all work in relation to their employment' (this agreement can be reached via a collective agreement between you and a trade union);
the agreement must specify the main terms and conditions upon which the employee will cease all work in relation to their employment;
the agreement must be incorporated (expressly or impliedly) in the employee's contract;
the agreement must be made in writing, or confirmed in writing by the employer (which can include via email); and
you must retain the agreement, or confirmation, until at least 30 June 2025.

If you are putting employees on furlough now, you should comply with the above.

If you have already furloughed employees, and have not met all of the conditions above, contact us to discuss whether you should now take any additional steps.

Employees are likely to agree to furlough if the alternative could be redundancy, unpaid leave or lay-off.

On the basis of the above rules, you should ensure that furlough agreements are recorded in writing, and include:

The main terms and conditions of the furlough - this is likely to include: the agreed period of furlough (you may want to opt for a specific period of time - the minimum is 21 days - and include a mechanism for the period to be extended or shortened); how much will be paid; what happens to any benefits; and if there is any change to the usual contractual position for that worker as regards whether they can work for others.
Clear agreement between you and the employee that the employee will 'cease all work in relation to their employment'.
That the reason for the cessation of their work is 'due to circumstances arising as a result of coronavirus'.
That the worker's contract is being amended as per the furlough agreement.

We would also recommend that the agreement is subject to any terms and conditions of the Job Retention Scheme, given that the Government guidance is regularly changing.

You must keep furlough agreements until at least 30 June 2025. This will allow HMRC to carry out retrospective checks for fraudulent claims or claims which do not comply with the scheme requirements.

Template letters

Our template notification of furlough letter is available here.
Contact us if you would like assistance with drafting a letter putting employees on rotating furlough.
If you want to end a period of furlough and the original notification of furlough did not specify when furlough would end, have a look at our template notification of end of furlough letter. This notification should clarify which terms and conditions of employment will apply; highlight the health and safety issues arising from returning to work; and make it clear that you are reserving the right to put the employee back on furlough at some point.
Retain all furlough letters until at least 30 June 2025.
Please contact us before using these templates, as there will be different factors to consider before deciding on the best approach for your business.

How should we select which employees to furlough?

In some circumstances, you will be furloughing a whole group of employees undertaking the same role. However, if you have to decide which employees to furlough from a pool of employees, you might want to ask for volunteers initially (some employees may prefer to stay at home on 80% pay rather than attend work). If it is not possible to agree who will be furloughed, then you may decide to select on the basis of fair and objective criteria - but seek advice on this as the approach may vary depending on the circumstances. The usual protection against discrimination will apply. Record all your discussions, rationale and decisions in writing.

The final date by which an employee can be furloughed for the first time is 10 June 2020 (in order for the minimum three consecutive week fulough period to be completed by 30 June, as changes are being introduced to the Scheme from 1 July - see below).

Do we need to collectively consult if we are furloughing 20+ employees?

We suggest you take advice about whether collective redundancy consultation obligations could apply as that may depend on factors such as the alternative strategy you have in mind if employees do not agree to the furlough arrangement: contact us.

What is the minimum period of furlough? Can employees be furloughed on a rotating basis?

Any employees placed on furlough must be furloughed for a minimum period of three consecutive weeks.

Each period of furlough can be extended 'by any amount of time' whilst the employee is on furlough. Therefore, so long as someone has been on furlough for a minimum of three consecutive weeks, you can extend their furlough by, for example, one or two weeks, or indeed a certain number of days - you don't have to extend it by another three full weeks. However:

the end date of the scheme will be the last day you can claim for; and
if you 'break' furlough (i.e. bring an employee back to work, even for a short time), their next period of furlough must be for a minimum of three consecutive weeks.

Employees can be furloughed on a rotating basis. This means that if agreed with the employees, you can designate employees as being on furlough on a three-week cycle, or a longer cycle, or perhaps three weeks on furlough followed by eg. one week off furlough, if you want to spread the burden of actual work. Currently, the government guidance doesn't provide for a minimum period that an employee must be 'off furlough' before going back on to another period of furlough.

Can furloughed employees do any work for us, even on a temporary basis? What about training?

Under the current terms of the scheme during furlough employees cannot do any work for, or on behalf, of your organisation or any linked or associated organisation. This includes providing services or generating revenue. The guidance is clear that you should 'consider allocating any critical business tasks to staff who are not furloughed'. Employees who have agreed to work reduced hours, or for reduced pay, including those on short-time working, are not eligible for furlough under the scheme.

Furloughed employees can undertake study or training if:

its purpose is to improve the employee's effectiveness in the employer's business, or the performance of the employer's business; and
it does not directly provide a service to the employer, contribute to the business activities of the employer or anything generating income or profit for the employer; and
it does not directly contribute to any significant degree in the production of goods or supply of services for sale to others.

An 'employer' will include those connected with the employer.

If a furloughed employee undertakes such training, they must receive at least the appropriate National Minimum Wage for doing so. The furlough payment will be taken into account in determining whether the NMW requirements have been met.

Furloughed employees can also fulfil duties as the trustee or manager of an occupational pension scheme (unless your business includes providing services as a trustee or manager of the scheme) – but contact us for advice on the detail of this exception.

From 1 July, you can bring furloughed employees back to work part-time and still claim under the scheme for any normal hours not worked - read more on 'flexible furloughing' below.

Can furloughed employees carry out duties as employee representatives?

Furloughed employees who are union or non-union representatives are able to carry out duties and activities for the purpose of individual or collective representation of employees or other workers, provided that in doing so, they do not provide services or generate revenue for, or on behalf, of your organisation or any linked or associated organisation. This means that they will be able to, for example, accompany a colleague during a disciplinary or grievance meeting, or undertake duties as a representative during collective redundancy consultation. Contact us if you want to discuss whether particular activities by a representative will be permitted during furlough.

Can we carry out disciplinaries / grievances with furloughed employees?

HMRC guidance and a Treasury Direction say that, during furlough, employees cannot do any work for, or on behalf, of your organisation or any linked or associated organisation. This includes providing services or generating revenue.

ACAS guidance currently says that someone on furlough can take part in a disciplinary or grievance investigation or meeting, including if they:

are under investigation in a disciplinary
raised a grievance
are chairing a disciplinary or grievance hearing
are taking notes at a hearing or during an investigation interview
are being interviewed as part of an investigation
are being a witness at a hearing
are an employee's companion for a hearing.

However, our view is that, at least in some respects, this is inconsistent with the HMRC guidance and Treasury Direction. Some of the above activities could amount to 'work', in particular chairing a hearing or taking notes for an employer. As such, if furloughed employees carry out these activities, it could put your furlough grant at risk.

We would advise that you contact us for advice before involving furloughed employees in disciplinary or grievance proceedings. Bear in mind that you can rotate employees on and off furlough as described above.

Can furloughed employees do volunteer work?

Yes, so long as doing so doesn't provide services or generate revenue for, or on behalf of your organisation or a linked or associated organisation. You can agree to find furloughed employees new work or volunteering opportunities whilst on furlough if this is in line with public health guidance (i.e. there is no requirement on the employee to self-isolate).

From 1 July: closure to new entrants

The scheme will close to new entrants from 30 June 2020. From July onwards, you will only be able to furlough employees that have already been furloughed for a full consecutive three-week period prior to 30 June. This means that employers can only claim under the scheme in respect of employees who were furloughed on or before 10 June 2020. It seems that you will still, however, be able to put a previously furloughed employee who is now working back on furlough after 1 July (provided they were earlier furloughed for the minimum three-week period).

You will have until 31st July to make any claims in respect of the period to 30 June. The first claims under the revised scheme can be made from 1 July. Claim periods will no longer be able to overlap months; and the number of employees claimed for in any claim period cannot exceed the maximum number claimed for under any previous claim under the scheme (this could be relevant if there have been periods of rotating furlough).

From 1 July: flexible furloughing

From 1 July, you can bring furloughed employees back to work part-time and still claim under the scheme for any normal hours not worked. Subject to what the guidance might say, it appears that there are no restrictions on the working pattern – so you have discretion to decide on the most appropriate working hours and shift patterns, which might vary week to week. To be eligible for the grant, you must agree any new flexible furloughing arrangements with employees; and document that agreement in writing. Contact us if you would like help with this.

If employees come back to work on reduced hours, you will have to pay them as normal in terms of their employment contract for the hours they work (and pay tax and NICs due on that amount). The government will not make any contribution for the hours worked. However, a claim can be made under the scheme for the hours furloughed employees are not working – meaning furloughed employees will still be entitled to 80% salary (subject to the £2,500 monthly cap) for their non-working hours.

The minimum period which can be claimed for furloughed hours will be a week. You will need to report both hours worked and the usual hours an employee would be expected to work in a claim period. Further details will be included in guidance to be published on 12 June.

Previous indications were that this change would happen from August but it has been brought forward by a month in order to get people back to work. However, you will only be able to bring furloughed employees back to work where either homeworking is an option; or the workplace is permitted to open in line with relevant government guidance. This is discussed in our legal update on the Brodies COVID-19 Hub.

From 1 August: introduction of tapered HMRC grant

A new taper requiring you to contribute to furloughed salaries will be brought in from August 2020. However, furloughed employees themselves won't see any changes in terms of how much they are paid or when (unless they go back to work part-time – see above - in which case they will paid their normal salary due under the contract of employment for the hours worked).

Until the end of July, the government will continue to reimburse 80% of salary, up to a cap of £2,500, plus the associated employer national insurance contributions and employer pension contributions that are paid on the subsidised furlough pay (up to the level of the minimum auto-enrolment employer contribution).
In August, you will be required to pay the employer national insurance contributions and employer pension contributions on furlough pay.
In September, you will be required to pay 10% of employees' 80% furlough pay. Recoverable furlough pay will be capped at £2,187.50.
In October, you will be required to pay 20% of employees' 80% furlough pay. Recoverable furlough pay will be capped at £1,875.
For furloughed employees working part-time, the caps will be proportional to the hours not worked. The government guidance should provide clarification as to how this will operate in practice.
The scheme will close on 31 October 2020.

FAQs on furlough and redundancy

Should we place employees on furlough, or move straight to redundancies?

Consider whether it is better to furlough employees now, with the possibility that you will still have to make them redundant later, or move straight to redundancies now. Some employees will accrue the two years' continuous service required to claim unfair dismissal and/or statutory redundancy pay by being kept in furlough for now – so that may be a point to consider. Other relevant considerations may be whether you expect the shortage in work to be temporary in nature. The scheme provides breathing space for employers who need time to consider their options, where there is a prospect that the shortage of work is temporary.

Bear in mind that:

If you are proposing to dismiss 100+ employees at one establishment within 90 days, you must notify the Department for Business, Energy and Industrial Strategy (BEIS), and begin collective consultation, at least 45 days before the first dismissal takes effect.
For 20 – 99 employees, you must notify BEIS, and begin collective consultation, at least 30 days before the first dismissal takes effect.

You can find out more at Redundancy: Consultation.

Are employees entitled to redundancy pay when they are placed on furlough?

No. Employees are not entitled to statutory redundancy pay just because they have been put on furlough, as they will remain employed by you. But if you then proceed to make these employees redundant, they may be entitled to statutory redundancy pay - see What statutory redundancy pay are furloughed employees entitled to?

This is different from those on a period of lay-off or short-time working. Employees with two years' service can resign and claim statutory redundancy pay after being on lay-off or short-time working for four consecutive weeks, or six weeks in a rolling period of 13 weeks. Lay-off occurs when an employee is not provided with any work and so receives no pay for a week. An employee is put on short-time working if their hours are reduced and, as a result, their remuneration for the week is less than half a week’s pay.

Other redundancy / furlough FAQs

We discuss the following FAQs on our page: Ending Furlough and Lockdown: FAQs for Employers.

Can we make furloughed employees redundant?
Does the furlough option mean that redundancies are potentially unfair just now?
Can we carry out redundancy consultations with employees during furlough?
Will the 'special circumstances' exception to collective consultation apply?
How can we elect representatives for collective redundancy consultation?
Are representatives involved in collective consultation 'working' while on furlough?
What statutory redundancy pay are furloughed employees entitled to?
Can notice pay and redundancy pay be claimed under the Scheme?

What about holidays?

The Government has now published guidance on "holiday entitlement and pay during coronavirus":

Annual leave will continue to accrue throughout furlough (although a furlough letter could contain an agreement that any contractual holidays in excess of the statutory 5.6 weeks will not accrue – our template letter contains this option).

Employees can take holiday whilst on furlough (without breaking the period of furlough).

Employers might want to encourage employees to take some of their annual leave entitlement while on furlough, or following them being furloughed, so as to avoid them returning to work with significant amounts accrued. Also see: Can workers carry over holidays they haven't been able to take due to the Coronavirus outbreak?

The guidance suggests that employers can require employees to take annual leave while furloughed provided that they give the required period of notice (double the length of the holiday which they are requiring the worker to take, unless the contract says otherwise, See: Can we insist that staff take holidays?). However the guidance also notes that employers should: "consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday." This issue about whether employees can be required to take holidays during furlough has not been resolved by the courts, so despite what the guidance says, it is possible that employees may challenge whether this approach complies with European laws in relation to holidays in due course. If you want to require employees to take holidays during a period of furlough, contact us to discuss the issues further.

If furloughed employees take annual leave, they must be paid holiday pay calculated in accordance with the Working Time Regulations i.e. their normal rate of pay, or where the rate of pay varies, the average pay received in the previous 52 working weeks. For more information on calculating holiday pay go to the Workbox section on Holiday Pay. Employers paying furloughed employees the lower of 80% of their 'reference salary' or £2,500 per month, in accordance with the scheme, will therefore have to pay furloughed employees taking annual leave additional amounts over and above the HMRC grant to top up to 100% of normal holiday pay. These additional top up payments will not be reimbursed by HMRC – something which employers need to factor in when assessing wage costs during furlough.

Employers can restrict when leave is taken if there is a business need (both during furlough and after a return to work). For information on restricting holiday requests see: Can we refuse holiday requests?

If a furloughed employee usually works on a bank holiday this can be included in the application for reimbursement of wage costs under the Scheme. If an employee usually gets a day off on a bank holiday, then they should either still be allowed to take that day as annual leave and have their pay topped up to their usual holiday pay rate, or alternatively, you may agree that that day's holiday can be deferred until a later date. In either case the employee should still receive their full holiday entitlement.

Employees who have been furloughed, despite being able to take holiday during furlough leave, may be entitled to carry some untaken holiday forward. (See: Can workers carry over holidays they haven't been able to take due to the coronavirus outbreak?) In particular the guidance notes that it may not be 'reasonably practicable' for furloughed employees to take their leave where you are unable to top up their salary to their normal rate of pay during annual leave.

Furloughed employees might want to request to change any pre-booked time off. See If a worker wants to cancel or change their holiday dates, do we need to agree?

Contact us to discuss furlough and holidays: it is a tricky issue.

Can apprentices continue to train whilst furloughed?

Apprentices can continue to train whilst furloughed, provided that in carrying out the training they do not provide services to or generate revenue for or on behalf of your organisation or a linked or associated organisation. Apprentices must be paid at least the apprenticeship minimum wage, national living wage or national minimum wage as appropriate for the time spent training.

What if apprenticeship training and assessments can't be provided / completed during the Coronavirus outbreak?

Employers and training providers are being encouraged to carry out training and assessments remotely where possible, but this will not be possible in all cases especially where manual work is required.

For further details on measures which have been put in place for apprenticeships in England, see the Coronavirus guidance for employers, apprentices and training providers.

For information in relation to apprenticeships in Scotland, visit the Skills Development Scotland website.

Is apprenticeship levy still being collected?

There are currently no plans to pause the collection of the apprenticeship levy because of the disruption caused by the COVID-19 outbreak.

What obligations do insolvent businesses owe to furloughed employees?

This question has already been considered by the courts: find out more in our legal update, or contact us.

What other financial assistance is the Government making available?

Businesses in need of short term cash flow support may be eligible for a Coronavirus Business Interruption Loan. Other assistance is also available, for example VAT payments are being deferred for three months until 30 June 2020. More information on the financial support measures is available here.

If you need specific advice on financial support measures, please get in touch. If necessary we can put you in touch with our Restructuring & Advisory Team.

Where can we find more information?

The Government guidance is at:

Here is a link to the Treasury Directions. These are technical documents, and you can contact us to discuss any queries.