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What is the Employee Retention Scheme and when should your business consider using it?

This content was last updated on May 1st 2020: The Job Retention Scheme allows businesses to claim up to 80% of any furloughed (those on a leave of absence) workers wages. We provide answers to questions to help you understand how your business can use the scheme:

Which businesses are covered?

The scheme is open to all UK employers with a UK bank account and who had an operational PAYE payroll scheme on or before 19 March 2020. It includes businesses, charities, recruitment agencies and public authorities (although in practice the majority of public sector organisations are expected to be providing essential public services during the outbreak).   

Which employees are eligible?

The scheme is intended to cover all employees regardless of their contract type, provided that they were employed on 19 March 2020 and on their employer’s PAYE payroll on or before 19 March 2020.  They must have been included on an RTI submission to HMRC on or before 19th March 2020. The scheme covers full time and part time employees, apprentices, employees on fixed term contracts and employees on flexible or zero hours contracts.  Foreign nationals are eligible to be furloughed; grants under the scheme won’t be treated as “access to public funds” and employees on all categories of work visa are eligible.

As well as employees, the following categories can also be furloughed as long as they are paid via PAYE: office holders (to include company directors), salaried members of LLPs, agency workers, and limb (b) workers. 

Is the cap of £2,500 pounds inclusive of wage costs such as pension contributions?

The reimbursement covers 80% of usual monthly wage costs to a cap of £2,500 per employee plus the associated employer National Insurance contributions and minimum auto-enrolment employer pension contributions (up to 3%).  These payments can be recovered in addition to the cap.

Regular payments which the employer is obliged to make, for example non-discretionary overtime or non-discretionary commission payments can be included in the calculation of wages. 

Any discretionary payments where there is no contractual obligation to pay them, such as tips or discretionary bonuses, should be excluded.

The sum paid to the employee will remain subject to income tax and National Insurance in the usual way.

Do I have to top up the remaining 20%?

No, there is no obligation on an employer to top up the remaining 20% and they can choose whether or not they wish to do so.

If however you are not going to top up the payments, you will require the employee’s consent in order to avoid a claim of breach of contract and unlawful deduction of wages.  If you do top up payments, the Scheme will not cover the cost of any employer NICs or pension contributions in respect of the top up.

What about employees who had already been given notice of redundancy or placed on unpaid leave after 28 February 2020 and before the government scheme was announced?

The scheme is back dated to 1st March 2020 and it is therefore possible for employees who had already begun being given notice of redundancy or placed on unpaid leave from 28th February to be placed on furlough leave instead.  This applies as long as they were on their employer’s PAYE payroll as at 28 February 2020, and an RTI submission notifying payment in respect of that employee to HMRC had been made on or before 28 February 2020.

Whilst the guidance is unclear, it would seem that this applies to employees who had been made redundant or placed on unpaid leave because of COVID-19, rather than for an unrelated reason.

Do employees have to be at risk of redundancy to be placed on the scheme?

The guidance on this point remains unclear, however the purpose of the Coronavirus Job Retention Scheme is to cover those who would otherwise have been laid off as a result of the crisis. HMRC retain the right to retrospectively audit all aspects of the scheme to enable them to claim back for fraudulent or erroneous claims and we recommend taking advice as to whether furlough is the best course of action in your particular circumstances.

Can I put an employee on long-term sick on furlough leave?

The government guidance suggests that employees on sick leave or who are self-isolating should receive statutory sick pay (subject to any contractual entitlement to company pay), but they can be placed on furlough once they have recovered or no longer need to self-isolate.

The government guidance confirmed that employees who are on long term sick are eligible to be furloughed.  Our view is that this sits uncomfortably with the Treasury Direction of 15 April 2020 and it seems logical that where these employees remain unfit to work due to a non-COVID reason, they would not qualify until such time as they were fit to work.

What do I do where an employee is self-isolating or on sick leave? 

The minimum length of time for which an employee can be furloughed is 3 weeks and the scheme is not intended to cover short-term absences.  Where an employee is self-isolating or on sick leave as a result of Coronavirus, they will be entitled to Statutory Sick Pay.  Whether they are entitled to enhanced contractual sick pay will be governed by their employment contract and / or any company sickness absence policy.

Although short-term illness or isolation shouldn’t be a decision in deciding whether to furlough an employee, these employees can still be furloughed for business reasons.

I have several employees who are shielding.  Can they be furloughed?

Employees who are shielding, or who live with someone who is shielding, can be furloughed. Employers can decide whether or not to furlough these employees.

What steps do I need to take to place employees on furlough leave?

Placing someone on furlough involves a change in their terms and conditions and you need their agreement. The proposal to place an employee on furlough leave needs to be discussed with them and their agreement to the change to be obtained. Where an employee agrees to be placed on furlough leave this needs to be confirmed to them in writing.

If you intend to put  20 or more employees on furlough leave, you may wish to take advice on your collective consultation obligations.

How do I select who to place on furlough leave?

This will in large part be driven by the needs of your business and which areas require a reduced workforce or will be subject to a temporary closure. It is possible to ask for volunteers in the first instance, although there is a risk that you may receive requests from more employees then you wish to furlough leaving you in a situation where you have to follow some form of selection exercise in any event.

One approach may be to draw up an objective selection criteria such as would be used in a redundancy scoring exercise.

The decision must not based on any discriminatory criteria, unless such discrimination is likely to be justified. For example, it may be possible to justify choosing to use age as a criterion in circumstances where people over 70 are understood to be at higher risk. 

Can I rotate furlough leave between my employees?

The minimum length of time somebody can be placed on furlough is currently set at three weeks. There doesn’t seem to be any reason why you could not move employees on and off furlough leave subject to that three week period. 

An employee has asked to be put on furlough leave.  Do I have to agree?

There is nothing to stop an employee from asking to be placed on furlough leave however you are under no obligation to agree. Whether or not to furlough employees ultimately remains a business decision.

You should however be wary of jumping straight to a refusal where the alternative is redundancy in case the employee subsequently sought to argue that the decision to dismiss was unreasonable in the circumstances.       

What can employees do whilst on furlough leave?

The main thing to remember is that an employee cannot do any work for your business, or any linked or associated business, whilst on furlough leave.

Where an employee has more than one employer, each is treated separately for the purposes of the Scheme. 

There is nothing in the guidance to suggest that an employee cannot work for another employer, although this would remain subject to any restrictions in their employment contract or as may be agreed when placing them on furlough leave.

Employees on furlough leave are able to do volunteer work and indeed a number of businesses are actively encouraging such activity.

The government guidance also confirms that an employee can still carry out training whilst on furlough and where this is agreed in advance with their employer, but they must be paid the national minimum wage in respect of the training period, even if takes them above the 80% they would otherwise receive. 

How do I make the claim to HMRC for reimbursement?

The online claims service has been live since 20 April 2020.  You should receive payment within six working days of submitting an application.

Guidance on the process for making a claim and the information you need to provide can be found at: https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme

This page was last updated on 1 May 2020.  Whilst these FAQs are intended to provide guidance on the employment law implications of the Job Retention Scheme, they do not constitute legal advice and should not be relied upon as such.  The guidance and information around the scheme is constantly evolving and if you wish to discuss your specific situation, please contact Natalie on n.abbott@rotheras.co.uk or 0115 910 6237.

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Natalie Abbott

“We work hard to get your business the outcome it deserves”

Natalie Abbott
Employment Law Specialist

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