This update reflects the position as at 21 April 2020
The Coronavirus Job Retention Scheme (“CJRS”) went live this morning allowing employers to now make claims via the online portal. To assist with claims, the government has issued this step by step guide for employers who are using the CJRS, and this guidance for working out 80% of employees’ wages.
In addition, we have seen further updates to both the CJRS guidance for employers and guidance for employees, as well as the publication of the new Statutory Sick Pay (General) (Coronavirus Amendment) (No. 3) Regulations 2020 (“Regulations”).
Key issues arising for employers
1. The updated CJRS guidance for employers makes clear that the CJRS will now operate until the end of June 2020.
2. The section that deals with seeking agreement to furlough in the CJRS guidance for employers has been updated so that it now states: “To be eligible for the grant employers must confirm in writing to their employee confirming that they have been furloughed. If this is done in a way that is consistent with employment law, that consent is valid for the purposes of claiming the CJRS. There needs to be a written record, but the employee does not have to provide a written response.” We commented on the fact that this part of the guidance is inconsistent with the rules set out in the Treasury Direction in our last update. Frustratingly, the updated guidance remains inconsistent with the Treasury Direction. You may need to seek advice on this in order to ensure any claims under the CJRS are valid.
3. The CJRS guidance for employees (but not the guidance for employers) now includes detail on dealing with holiday during furlough. The same detail is set out in the guidance for working out 80% of employees’ wages. As set out in our previous updates, government guidance on this has been lacking for some time now.
The points to note are:
– Holiday continues to accrue during furlough;
– Employees can take annual leave while on furlough;
– Employers should pay employees their “usual holiday pay” for days taken as holiday – this means that employers will need to “top up” the 80% furlough pay to 100% of normal pay;
– Employers can restrict when holiday can be taken if there is a business need;
– The guidance is silent on whether an employer can compel an employee to take annual leave while on furlough;
– The holiday section of the guidance for employees concludes: “During this unprecedented time, we are keeping the policy on holiday pay during furlough under review.”
4. The new Regulations ensure entitlement to statutory sick pay (“SSP”) in cases where people classed as extremely vulnerable are unable to work because they are shielding themselves in accordance with government guidance (and where they meet the SSP eligibility criteria). Note that the Regulations came into force on 16 April 2020 and do not appear to have retrospective effect.
The issues arising under the CJRS are increasingly complicated. The large amount of guidance that has been issued needs to be read carefully in light of the formal Treasury Direction, but a number of inconsistencies between the two remain.
If you need help on these issues, please do get in touch.