Coronavirus: Furlough cut-off moved from February to March

On 16 April 2020 the Government issued yet another update to the furlough guidance, whilst the Treasury issued a Direction to HMRC, both concerning the Coronavirus Job Retention Scheme (CJRS).

What has changed?

There's still nothing from the Government in terms of clarifying the formal position on furlough and holiday, however there are nonetheless a couple of notable changes in these two updates.

The qualifying date for furlough is now 19 March.

The qualifying date, when the employee has to have been on the employer's payroll, has changed from 28 February to 19 March 2020 (where an RTI submission notifying payment in respect of that employee to HMRC was made on or before 19 March 2020, which does not capture all those you might hope it would).  

This brings into scope a number of people who originally fell outside the scheme because they had recently changed jobs. It may well be therefore that you want to look at whether you have any former employees that now fall 'in scope' to be able to be offered to be re-employed and furloughed (although as before, there remains no formal requirement in terms of your having to do that for them).

The salary reference date has also moved to March.

The salary reference date for calculating the claim for salaried employees has also changed to 19 March 2020 – although you can rely on your calculation you may have already run in respect of salary as at 28 February for your first claim if you want to do so. In other words, you do not have to rework payroll figures if they have changed between 28 February and 19 March and you have already prepared them for your first claim based on the original guidance indicating the relevant date was salary as at 28 February.

Clarification on unpaid leave.

The Government has also confirmed that if an employee started unpaid leave after 28 February 2020, you can put them on furlough instead of unpaid leave. However, if an employee went on unpaid leave on or before 28 February, you cannot furlough them until the date on which it was agreed they would return from unpaid leave.

Uploading furloughed employees to the HMRC online portal.

Employers who have fewer than 100 furloughed staff will be asked to enter details of each employee you are claiming for directly into the system - this will include their name, National Insurance number, claim period and claim amount, and payroll/employee number (although that last one will be optional). Employers who have 100 or more furloughed staff however will be asked to upload a file with the information rather than input it directly into the system. It's confirmed that the following file types will be acceptable: .xls .xlsx .csv .ods.  Such file should include the following information for each furloughed employee:

• Name
• National Insurance number
• Claim period
• Claim amount
• Payroll/employee number (optional)

This is important in terms of the practicalities of being able to submit the claim promptly when the online portal goes live.

HMRC cannot provide employees with details of claims made on their behalf, and so employers are being asked to keep their employees informed, ask them not to contact HMRC, and answer any questions that they might have.

Does the Treasury Direction differ from the government guidance?

Separate to the above, the Treasury has also issued a Direction to HMRC under powers conferred by the Coronavirus Act 2020.  This largely (as you would expect) reflects the updated government guidance.

However, it also states at para 6.7 that to claim furlough, the employer and employee must have "agreed in writing (which may be in an electronic form such as an email) that the employee will cease all work in relation to their employment".  This is slightly different to the gov.uk guidance which only requires notification to the employee in writing that they have been furloughed (which is slightly different to agreement in writing). 

Therefore, if you carried out your furloughing by notification only to employees without requiring a response, a belt and braces approach (in order to ensure you are completely compliant with the scheme as updated) might be an email follow up to all furloughed employees seeking confirmation that they have by agreement ceased all work to comply with furlough requirements.

As ever, if you need advice on the furlough scheme or how to implement it in your organisation, our Employment Team are here to help.