Coronavirus Job Retention Scheme (CJRS) - FAQs Updated 27 May 2020

14 May 2020

The guidance for the CJRS is evolving at a rapid rate. We will seek to update these FAQs as quickly as possible as the situation develops.

The outbreak of Coronavirus responsible for COVID-19 has left every business with uncertainties. In an effort to manage the potential impact of the pandemic, the UK Government has put in place the Coronavirus Job Retention Scheme (CJRS) to protect against job losses. The Scheme allows employers to claim back a percentage of the wages of a furloughed employee (i.e. placed on a leave of absence) due to the pandemic. In this article, we answer your frequently asked questions (FAQs) regarding the CJRS based on HMRC's guidance and HM Treasury directions.



CJRS extended to October

On 12 May 2020, the Chancellor announced:

The Coronavirus Job Retention Scheme will be extended, for four months, until the end of October.

Until the end of July, there will be no changes to the scheme.

From August to October the scheme will continue, for all sectors and regions of the UK, but from the start of August:

  • furloughed workers will be able to return to work part-time; and
  • employers being asked to pay a percentage towards the salaries of their furloughed staff.
  • Workers will, through the combined contributions of government and the employers, continue to receive the same level of support as they do now, at 80% of their salary, up to £2,500.

The important further detail of the August changes is to follow by the end of May. We can only speculate at this stage as to the level of employer contribution that will be required from August but it rumoured that it will be at least 20%. We will keep you informed of the further details as they become available.

Where are the rules of the CJRS set out?

Treasury Directions

The statutory basis for the Scheme is section 76 of the Coronavirus Act 2020. This is a general provision that provides the Treasury with the power to direct HMRC's functions in relation to COVID-19. On 15 April 2020, the Government published the Treasury Direction made under this power. This sets out the circumstances in which HMRC must make payments to employers under the CJRS.

On Friday, 22 May, the Chancellor of the Exchequer published a revised Treasury Direction dated 20 May 2020 modifying the earlier Treasury Direction of 15 April 2020.

Perhaps confusingly, the 20 May Treasury Direction does not deal with the Chancellor's extension of the CJRS in its current form until 31 July nor to the further extension to the end of October (subject to modifications from August such as furloughed workers being permitted to work part-time and employers being asked to pay an as yet unspecified percentage towards the salaries of their furloughed staff), which were both announced on 12 May.

The 20 May Treasury Direction provides the legal mechanism for the extension of the CJRS to 30 June 2020 only, as well as making some significant changes. The changes largely reconcile some of the inconsistencies between the earlier 15 April Treasury Direction and HMRC's published Guidance or clarify areas of uncertainty.

Claims for payment under the CJRS made after 22 May will have to comply with the new, amended version of the 20 May Treasury Direction. Claims made on or before 22 May should comply with either the original Treasury Direction published on 15 April or the new Treasury Direction.

HMRC guidance

HMRC has published guidance for employers ('Check if you can claim for your employees' wages through the Coronavirus Job Retention Scheme') and guidance for employees ('Check if your employer can use the Coronavirus Job Retention Scheme'). These were first published on 26 March and have been updated several times, the latest being on 14 May. The guidance for employers was slimmed down on 14 May with a large section now located in separate guidance, 'Check which employees you can put on furlough to use the Coronavirus Job Retention Scheme'. In addition, separate guidance has been made available to help employers with making claims and calculating wages:

What is the relationship between the Treasury Direction and the HMRC Guidance?

The Treasury Direction is made under the statutory power conferred by section 76 of the Coronavirus Act 2020. It has legal force and is the document that HMRC is bound to follow when making decisions about issuing grants under the Scheme.

The HMRC guidance was first issued on 26 March 2020 and was updated three times before the Treasury Direction was published. There are inconsistencies between the Treasury Direction and earlier versions of the Government guidance. There also appear to be inconsistencies between the Direction and the current Government guidance, even though the guidance was updated after the Direction was published, although many of these inconsistencies have now been reconciled in the 20 may Treasury Direction, see COVID-19: Revised Treasury Direction amends CJRS.

Government guidance can, in certain circumstances, be used by courts as a persuasive authority in the interpretation of a statutory provision. Where there are inconsistencies that cannot be reconciled, as a matter of law the Direction will prevail.

What does furlough mean?

Furlough is a temporary leave of absence. Under the CJRS, employers are able to claim back a percentage of an employee's wages for retaining them and placing them on paid temporary leave rather than making them redundant.

For an employee to be furloughed, the employer must instruct them to cease work that makes money for or provides services for the employer's organisation or any organisation linked to or associated with the employer's organisation related to their employment. The reasoning behind the employee being furloughed must relate to circumstances caused by the coronavirus pandemic. An employee must be furloughed for at least three weeks or more for the employer to be able to make a claim.

The CJRS is a temporary scheme starting from 1 March. It has been announced that the Scheme will run in its current form until 31 July 2020 and with some modifications to be confirmed from 1 August until 31 October 2020. Employers can use this scheme anytime during this period.

What can employers claim under the scheme?

Employers are able to claim a grant of 80% of an employee's 'reference salary' (up to £2,500 per month) of furloughed employees, as well as the associated Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on this reduced rate of pay.

An employer can choose to top up an employee's salary beyond the 80% if they wish to. For full time and part time salaried employees, the employee's actual salary before tax, as of 19 March 2020 should be used to calculate the 80%. The employer can claim for any regular payments that they are obliged to pay the employee.

The 20 May Treasury Direction clarifies that "regular' pay" means pay that "cannot vary according to a relevant matter except where the variation in the amount arises from a non-discretionary payment". Essentially variable payments for

  • overtime, fees, commission or piece rates;
  • additional or exceptional responsibilities;
  • timing of shifts;
  • payments made in recognition of similar matters.

count as regular pay provided there is no discretion about how the amount is to be calculated. Discretionary bonuses (including tips), and non-cash payments are not included.

Any salary increases after 19 March 2020 (even if agreed before this date) cannot be used to calculate the amount that can be claimed via the Scheme.

Can any employer apply to the scheme?

An employer is eligible for the CJRS if they had created and started a CJRS payroll scheme on or before 19 March 2020, have a UK bank account (where a BACS payment can be accepted) and are enrolled for CJRS online. Any organisation with employees can apply including businesses, charities, public authorities and recruitment agencies (agency workers paid through CJRS). The Treasury Direction adds that any employer who has set up a pay-as-you-earn (PAYE) scheme and notified this to HMRC through a real time information (RTI) submission by 19 March 2020 can make claims.

If a company is under the management of an administrator, the administrator can access the Scheme. HMRC has stated that they would only expect an administrator to access the scheme if there is a reasonable likelihood of rehiring the workers.

While they are potentially eligible, it is important to note that the government expects the scheme to not be used by many public sector organisations. If employers use public funding for staff costs, and they are continuing to receive this funding, then HMRC expects this money to be used to continue to pay staff as usual. This also applies to other employers that pay staff through public funding.

Do employers need to prove they cannot otherwise pay their employees?

The Treasury Direction makes it clear that this is not a requirement. An employer can furlough workers provided "the instruction is given by reason of circumstances arising as a result of coronavirus or coronavirus disease".

The revised Employer's Guidance states that the CJRS is "to help employers whose operations have been severely affected by coronavirus (COVID-19) to retain their employees and protect the UK economy. However, all employers are eligible to claim under the scheme and the government recognises different businesses will face different impacts from coronavirus." This suggests not only that there is no requirement that employers demonstrate they had no other option than to make employees redundant, but that employers will also not need to establish that they have been "severely affected by coronavirus" - in other words it is open to all employers meeting the basic requirements.

Which employees can be on furlough leave?

Employees and workers on any type of employment contract, including full-time, part-time, agency, flexible or zero hour contracts can be placed on furlough. An employee can be furloughed if they were employed on 19 March and on the employer's CJRS payroll on or before 19 March 2020. An employer will not generally be able to claim an employee's wages under the scheme if they were hired after 19 March 2020.

The Treasury Direction adds that employers can claim for all employees who were on their payroll on 19 March and notified to HMRC through an RTI submission before that date.

The term 'employee' is defined expansively by reference to tax law. It captures many workers who would not normally be 'employees' for the purposes of employment law. PAYE is key rather than type of contract. Those that are registered as self-employed for tax purposes are not covered by the scheme.

If an employee has been made redundant or stopped working for the employer since 28 February 2020 they can be rehired and placed on furlough leave. It is not a requirement that employers rehire redundant employees and place them on furlough. Such former employees do not have a right to be re-employed. In this situation, an employer should seek specialist advice due to issues that may arise around redundancy payments, notice payments and continuity of employment.

Employees who are foreign nationals are also eligible to be furloughed. Employers can furlough employees on all categories of visa.

What about employees who were on unpaid leave?

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. However, the 20 May Treasury Direction now allows that where a period of unpaid leave started before 1 March 2020, and the employer and employee reached an agreement before 20 March to end it earlier than originally planned, the employee can be put on furlough after the revised end-date for the leave.

Are any non-employees eligible for the CJRS?

The grant can be claimed for some groups that are not considered employees if they are paid through CJRS. These include:

  • Office holders
  • Company directors
  • Salaried members of Limited Liability Partnerships (LLPs)
  • Agency workers
  • Limb (b) workers
  • Contingent workers in the public sector

Company Directors

If the furloughing of one or more individual company directors is decided by the board this should be adopted as a formal decision of the company. It should be noted in the company records and communicated to the director(s) concerned.

Under the HMRc guidance, if a furloughed director needs to carry out duties to fulfil the statutory obligations they owe the company, they can as long as they do no more than would be judged reasonably necessary. They should not do any work that would generate revenue or provide services to or on behalf of the company. The Treasury Direction also provides that directors can continue to carry out their statutory duties and this will not constitute 'work'.

A company director will not be treated as doing work (and therefore outside the CJRS) where they are simply making a CJRS claim for, or paying wages to, an employee of the company. Fulfilling duties as a trustee or manager of an occupational pension scheme is also permitted (except where the employer's business is the provision of occupational pension scheme independent trustee services)

This also applies to salaried individuals who are directors of their own personal service company (PSC).

Company directors with an annual pay period are also eligible to claim, as long as they meet the relevant conditions.

Members of LLPs

For a member of a LLP to be furloughed, the terms of the LLP agreement (or any agreement between the LLP and the member) may need to be varied by a formal decision of the LLP. The formal decision may reflect that the member will perform no work for the LLP and reflect the effect of this on their remuneration from the LLP. If an LLP member is treated as being employed by a LLP, the reference salary for the CJRS would be their profit allocation, excluding any amounts determined by their individual performance or the overall performance of the LLP.

Agency workers

The furloughing of agency workers should be agreed between the agency (as the employer) and the worker. The agency workers should not carry out any work on behalf of the agency or the agency's clients.

Limb (b) workers

Limb (b) workers that are paid through CJRS can also be furloughed. If they pay tax on their trading profits through Income Tax Self-Assessment they may instead be eligible for the Self-Employed Income Support Scheme (SEISS).

The Cabinet Office has issued separate guidance 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.

Does an employer have to confirm an employee will be furloughed in writing?

The employer and employee should discuss and must agree on any changes to the employment contract.

The HMRC Guidance has always been and remains that while the employee's agreement is needed, this can be evidenced simply by a confirmation email from the employer. However, the 15 April Treasury Direction caused much concern as it provided that employers would need to ensure employees confirm their agreement to the furlough in writing. This could be done by a simple email, but nevertheless needed to be done.

In what is arguably the most significant and welcomed change in the 20 May Treasury Direction, the new wording on the form of agreement removes the requirement that the employee's agreement must be in writing.

For the purposes of eligibility to make a claim, the required instruction to cease work is satisfied if:

  • The employer and employee have agreed that the employee will cease all work in relation to their employment (this includes by a collective agreement between employer and trade union).
  • the agreement/collective agreement includes “the main terms and conditions upon which the employee will cease all work” (so the extent to which the pre-furlough terms and conditions have been varied).
  • the agreement is "incorporated (expressly or impliedly) in the employee's contract"; and
  • the agreement is "made in writing or is confirmed in writing by the employer" (in writing includes an electronic form such as an e-mail); and
  • the agreement (including a collective agreement) or confirmation is retained by the employer until at least 30 June 2025.

This brings the Treasury Direction in line with the HMR Guidance. Employers should note that while employees do not need to provide written agreement to being furloughed, some form of agreement is still required. Employers should ensure that written confirmation of agreement to being furloughed is sent to all furloughed employees.

Can an employee refuse to be furloughed?

The Treasury Direction does not create a right for employers to put employees on furlough. The CJRS is a mechanism through which employers can reclaim employee's wages from HMRC. It does not alter existing employment law rights and obligations. An employee can refuse to be furloughed but you cannot dismiss them on these grounds. They can be made redundant but this must be done in line with normal redundancy rules.

In many cases the alternative to furlough will be redundancy, so employees may be inclined to agree.

Can you furlough an employee on reduced hours?

If an employee is working, but on reduced hours, or for reduced pay, they will not be eligible for this Scheme.

Can an employee still be made redundant after a period of furlough?

A furloughed employee can be made redundant once the furlough period has ended. A normal redundancy process would still need to occur beforehand.

What happens if an employee has more than one job?

If an employee has more than one employer, they can be furloughed for each job. Each job is separate, and the cap applies to each employer individually.

Can a furloughed employee get another job?

If their contract allows, a furloughed employee is able to take on additional employment as long as they are available to return to work when needed and undertake any required training. Any furlough agreement should address whether the employee can work for another employer while furloughed.

What if furloughing an employee puts their salary below the National Minimum Wage?

Employees are only entitled to the National Living Wage / National Minimum Wage / Apprentices Minimum Wage for the hours they have worked. Furloughed workers, as they are not working, can be paid the lower 80% of their salary even if this puts them below the appropriate minimum wage.

Any time spent training while on furlough is treated as working time for the purposes of minimum wage calculations and must still be paid at the appropriate minimum wage.

What happens if the employee's pay varies?

If an employee has been employed (or engaged by an employment business) for a full 12 months before the claim, employers can claim for the higher of either the same month's earnings from the previous year or their average monthly earnings from the 2019-2020 tax year.

If an employee has been employed for less than a year the average of their monthly earnings since they have been employed can be claimed.

If the employee only started in February 2020, use a pro-rata for their earnings so far to claim.

See the HMRC Guidance "Work out 80% of your employees' wages to claim through the Coronavirus Job Retention Scheme" for more detail.

What happens if you have employees on maternity, adoption pay, paternity, shared parental pay or parental bereavement leave and pay?

Individuals who are on or plan to take maternity leave must take at least two weeks off work (four weeks if they work in a factory or workshop) immediately following the birth of their baby (the Compulsory Maternity Leave period). This is a health and safety requirement.

If the employee is eligible for Statutory Maternity Pay (SMP) or Adoption Pay, the normal rules apply, and they are entitled to claim up to 39 weeks of statutory pay or allowance. Employees who qualify for SMP will still be eligible for 90% of their average weekly earnings in the first six weeks (calculated by reference to the average pay in the proceeding 13 weeks), followed by 33 weeks of pay paid at the statutory flat rate or 90% of their average weekly earnings (whichever is lower). The statutory flat rate is currently £151.20 a week.

The 20 MayTreasury Direction now provides that the reference salary for those being furloughed after a period of unpaid leave, paid statutory family-related or sick leave, or other reduced rate paid leave immediately after statutory leave, should be calculated as if the employee had been on paid annual leave receiving normal pay required under the Working Time Regulations during those periods. It does not shed any further light on what normal pay is in these circumstances.

If an employee is entitled to enhanced contractual maternity pay, this is a wage cost that the employer can claim through the CJRS. The same also applies if the employee qualifies for contractual adoption, paternity or shared parental pay.

Can you furlough an employee on sick leave?

On 19 April HMRC updated its statutory payments manual to provide that if employees are furloughed as part of the CJRS they do not qualify for SSP. This is consistent with the HM Treasury Direction. The manual is more persuasive than the Employer's Guidance which implies employees could go on SSP if they wished (though as the current rate of SSP is £95.85 per week, it is unlikely to arise).

The 20 May Treasury Direction provides that where SSP is in payment or due to be paid, furlough cannot begin until immediately after the end of the 'period of incapacity for work' for which the SSP is being paid or due to be paid.

The HMRC Guidance suggests employers can furlough employees already on sick leave, but this was inconsistent with the 15 April Treasury Direction which made it clear that employees entitled to sick leave could only be furloughed once that period of sick leave has ended, even where SSP was not claimed.

However, the new 20 May Treasury Direction has removed the words "whether or not a claim to SSP is made" and added the words "the end of that period of incapacity for work is determined by an agreement between the employer and employee". As such, the employer and employee can now apparently agree to end a period of SSP in order to start furlough (notwithstanding continuing SSP eligibility) although we suggest advice is taken before this option is exercised.

Can employees use holiday leave instead of being furloughed?

The relationship between furlough and annual leave remains one of the most controversial issues involving the CJRS.

The 'Work out 80% Guidance' and the 'Employee's Guidance' both state that workers continue to accrue annual leave while on furlough, and that they are entitled to "take holiday whilst on furlough. On 13 May 2020, the Department for Business, Energy & Industrial Strategy (BEIS) published new guidance, 'Holiday entitlement and pay during coronavirus (COVID-19)' The BEIS Guidance makes it clear that:

  • Workers on furlough continue to accrue holiday while on furlough.
  • Workers on furlough can take holiday without disrupting their furlough.
  • Employers can require workers to take holiday and cancel a worker's holiday if they give enough notice to the worker (including bank holidays). This may include workers on furlough but "the employer should consider whether any restrictions the [furloughed] 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".
  • The normal rules on calculating holiday pay under the Working Time Regulations 1998 (WTR) continue to apply.

However, the BEIS Guidance goes on to advise that employers should engage with their workforce and explain reasons for wanting them to take leave before requiring them to do so. It also suggests that if an employer requires a worker to take holiday while on furlough, "the employer 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". (Our emphasis).

What the Guidance does not provide is a clear view on whether holiday taken during furlough meets the definition of annual leave set down in European law, reflected in the words underlined above. Also, to what extent the employer is required to consider whether a furloughed worker is 'prevented' from taking holiday is unclear. Later, in the 'Carrying annual leave into future leave years' section of the Guidance, it states "workers who are on furlough are unlikely to need to carry forward statutory annual leave, as they will be able to take it during the furlough period". This suggests that BEIS does not consider that many workers on furlough will be 'prevented' from being able to benefit from resting, relaxing and enjoying leisure time due to the general restriction on society as a whole.

See our alert, COVID-19: Holiday during coronavirus - new BEIS Guidance for more.

If holiday leave is taken during furlough how is holiday pay calculated?

The Working Time Regulations require holiday pay to be paid at the employee's normal rate of pay or, where the rate of pay varies, calculated on the basis of the average pay received by the employee in the previous 52 working weeks. Therefore, if a furloughed employee takes holiday, the employer should pay their usual holiday pay in accordance with the Working Time Regulations."

The BEIS Guidance essentially says that holiday pay, whether the worker is on furlough or not, must continue to be calculated in line with the existing legislation. Specifically for furloughed workers the BEIS Guidance states:

"If a worker on furlough takes annual leave, an employer must calculate and pay the correct holiday pay in accordance with current legislation ... Where this calculated rate is above the pay the worker receives while on furlough, the employer must pay the difference. However, as taking holiday does not break the furlough period, the employer can continue to claim the 80% grant from the government to cover most of the cost of holiday pay."

The HMRC's 'Work out 80% of your employees' wages to claim through the Coronavirus Job Retention Scheme' states "if a furloughed employee takes holiday, the employer should pay their usual holiday pay in accordance with the Working Time Regulations." The new BEIS Guidance reminds that "the underlying principle is that a worker should not be financially worse off through taking holiday."

But where the employee has agreed to reduced pay, what is now 'usual pay'? UK law provides that the 5.6 weeks' holiday would be paid at whatever the contractual rate is on the first day of the holiday for someone with set hours. For a person without set hours then an average of the last 52 paid weeks is paid. Some legal commentators argue that under EU case law holiday pay must be paid at the normal full time rate, based on normal hours working. On the other hand, if the employee agrees to furlough leave with a consequential pay cut then arguably that would be the usual pay for any leave taken during the furlough period.

Whether holiday pay should be based on pre-furlough or furlough pay rates remains one of the most debated and complicated issues involving the CJRS. Paying at furlough rate will carry a risk of future claims for unlawful deduction of wages (for the underpayment of wages). Of course, those claims could be settled in the future if and when the position is clarified. A practical option for employers facing holiday requests during furlough who do not want to run the risk of such claims would be to require the employee to take the holiday later in the year when furlough has ended. However, at that point, the employer may not want employees taking material amounts of holiday as they get the business up and running again.

Can you furlough employees who are shielding?

Employees that are shielding in line with public health guidance (or need to stay home with someone who is shielding) can be furloughed according to the HMRC Guidance if they are unable to work from home and an employer would otherwise need to make them redundant.

Can you furlough employees that have caring responsibilities?

If an employee is unable to work due to caring responsibilities caused by the COVID-19 pandemic, e.g. looking after children, they can be furloughed.

Can apprentices be furloughed?

Apprentices can be furloughed in the same way as any other employee. They can continue to undertake training whilst they are furloughed. The apprenticeship levy should continue to be paid as normal, grants from the CJRS do not cover this.

Can an employee work or do training whilst on furlough?

Furloughed employees can study or do training if its purpose is to generally improve "an employee's effectiveness in the employer's business or the performance of the employer's business", provided it does not contribute to business activities, generate income or profit, or significantly contribute to the production of goods or services for sale.

If a worker is required by the employer to complete online training courses whilst they are furloughed they must be paid a least the National Living Wage/National Minimum Wage for the time they have spent training - even if this is more than the 80% of their wage that will be subsidised.

Employers will need to keep records of the time furloughed workers spend undertaking training for NMW and WTR rest break purposes.

Can an employee volunteer whilst on furlough?

A furloughed employee can take part in volunteer work, if it does not provide services to or generate revenue for, or on behalf of the employer's organisation or a linked or associated organisation.

Employers cannot furlough an employee and then ask them to volunteer in the same or a different role.

A furloughed employee can volunteer for another employer or organisation.

Can an employee have their hours reduced and be placed on furlough?

If an employee is working with reduced hours or for reduced pay they will not be eligible for the CJRS. Employers will need to continue paying the employee through their payroll and pay their salary subject to the terms of the employment contract that was agreed.

Can you alternate furloughed employees?

Employers do not have to furlough all of their employees. The minimum furlough period is three weeks. It is possible for employers to furlough part of their workforce for three weeks and then furlough a different part of their workforce for the next three weeks to cover the same work.

Employees can be furloughed multiple times throughout the qualifying period but each instance must be for a minimum of three weeks.

Can you extend a furlough period?

Each period of furlough can be extended by any amount of time whilst the employee is on furlough. For example, an employee furloughed for three weeks can have the furlough period extended by an additional two weeks making the total furlough period five continuous weeks. However the scheme end date is the last day you can claim for through this scheme.

Can an employee request furlough leave?

The guidance from HMRC is silent on this. There is nothing to prevent an employee requesting to be furloughed but the employer does not have to agree. It is the employer's decision whether to furlough an employee or not.

Does a business have to furlough an employee instead of making them redundant?

There is no requirement that an employer places an employee on furlough leave as an alternative to redundancy. However, there is no guidance as to whether refusing to place an employee on furlough leave and making them redundant could amount to unfair dismissal.

What happens if there was a TUPE transfer after 28 February?

If a TUPE transfer takes effect after 28 February 2020 then the new employer can claim for the employees of the transferred business if either the TUPE or CJRS business succession rules apply to the change in ownership. This includes TUPE transfers from an insolvent business.

The 20 May Treasury Direction confirms that transferors are able to claim for employees whose furlough periods did not last 21 days but only where this is because of a TUPE transfer

Can furloughed employees working as union or non-union representatives carry out these roles while on furlough?

On 30 April the HMRC Guidance was updated to clarify that whilst on furlough, employees who are union or non-union representatives may undertake duties and activities for the purpose of individual or collective representation of employees or other workers provided in doing this, they do not provide services to or generate revenue for, or on behalf of your organisation or a linked or associated organisation. In other words employee and/or union representatives who are furloughed are able to accompany a colleague during disciplinary or grievance meetings, or undertake collective consultation duties (for example, redundancy or TUPE consultation). without it breaching the CJRS 'no work' rule.

How do employers make a claim through the CJRS?

Employers can only submit one claim at least every three weeks, which is the minimum length an employee can be furloughed for. Claims can be backdated until the 1 March if applicable.

See the now separate 'HMRC Guidance Claim for wages through the Coronavirus Job Retention Scheme' for detail.

Do furloughed employees lose any rights?

Furloughed employees have the same rights as they did previously. They are entitled to Statutory Sick Pay, maternity rights, other parental rights, redundancy payments and rights against unfair dismissal.

Furloughed employees will still need to pay Income Tax and National Insurance. They will also pay any automatic enrolment contributions on their qualifying earnings unless they have opted out or have stopped saving into a workplace pension scheme.

Employers will be still need to pay Employer National Insurance contributions on any wages paid, as well as automatic enrolment contributions on qualifying earnings unless an employee has opted out or has stopped saving into a workplace pension scheme.

Are CJRS grant payments considered as part of a business' income?

Any payments received by a business under the scheme are made to offset deductible revenue costs. They must be included as income in the business's calculation of its taxable profits for Income Tax and Corporation Tax purposes, in accordance with normal principles.

Businesses can deduct employment costs as normal when calculating taxable profits for Income Tax and Corporation Tax purposes.

Can furloughed employees still take part in work social activities?

Furloughed employees can still join in with social activities such as virtual meet ups as long as there is no discussion of work.

Do you have a FAQ on the Coronavirus Job Retention Scheme?

As the situation surrounding the COVID-19 pandemic continues to develop, we expect to see the guidance on the CJRS continue to change. Our team are advising a multitude of different clients on the employment law issues arising during this turbulent time. If you have further questions regarding the CJRS or are in need of advice, please do get in touch.


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