CJRS – Updated Guidance

As promised, the government updated its guidance on the furlough scheme on 10 November. The latest guidance for employers is here and that for employees is here.

Amongst other things, the updated guidance confirms that from 1 November, the scheme is open for employees who were employed on 30 October, as well as employees who were made redundant or stopped working on or after 23 September if they are then re-employed (provided that they were subject to a PAYE Real Time Information (RTI) submission to HMRC between 20 March and 30 October, or 23 September as the case may be, notifying a payment of earnings for them); and there is no longer a maximum number of employees for whom an employer can claim. (Up to 31 October, subject to limited exceptions, in any claim period employers could not claim for a greater number of employees than the maximum number for whom they had claimed in any claim period up to 30 June.)

As is well known, from 1 November employers can claim 80% of an employee’s usual pay for hours not worked, up to a maximum of £2,500 per month.

The guidance states that employees returning from maternity leave need to give 8 weeks' notice to end maternity leave early in order to be furloughed under the scheme. The guidance does not deal with the situation where employees who are not subject to a statutory obligation to provide such eight weeks’ notice (because the employer did not confirm the date upon which maternity leave would otherwise expire in writing) or otherwise where the employee and employer agree to shorten the eight week period. Therefore, for clarity, we await the updated Treasury direction, which will set out the formal rules of the extended scheme, and/or further updated guidance.

The employer must confirm in writing to the employee that they have been furloughed, and keep a written record for 5 years. Employers should also ensure that any furlough arrangements are introduced lawfully and otherwise effectively. We have updated our precedent furlough documents to take account of the extended scheme.

Employers can retrospectively implement furlough with effect from 1 November 2020, as long as the agreement to retrospectively claim furlough occurs on or before this Friday 13 November.

There seems to be a mistake in the guidance concerning TUPE. It states that employees who transfer under TUPE must have "been employed by their prior employer on or before 30 October 2020 and transferred from them to their new employer on or before 1 September 2020" whereas it should say: "been employed by their prior employer on or before 30 October 2020 and transferred from them to their new employer on or after 1 September 2020". See this Twitter exchange.

Notably, whilst the updated guidance confirms that, for the time being, employers can still claim under the scheme for furloughed employees, who are under notice of dismissal, it states that the government is reviewing whether this should continue, and the approach will change for claim periods starting on or after 1 December, with further guidance to be published in late November.