As of 05.30 am this morning (20 April 2020) employers are able to make claims on HMRC’s Coronavirus Job Retention Scheme’s Portal. It is reportedly fairly easy to use the portal, although heavy traffic and an the odd site crush should be expected.
Shortly before the Portal went live, the Government has issued important updates and clarifications as to how the Scheme operates. In particular:
- The Scheme has been extended to cover employees and workers who were on the payroll by 19 March 2020. Previously, the cut-off was to be 28 February 2020.
- Conflicting information has been given as to whether employers must obtain employees’ and workers’ written agreement to be Furloughed, or whether a written notification from the employer to the employee will suffice. To be on the safe side, it is advisable for employer to obtain written consent (which can be made electronically via email), even in retrospect.
- HMRC guidance to employees (but strangely not to employers) states that workers continue to accrue annual leave while on Furlough, and that they are entitled to take leave during this time. It goes on to state that holiday pay should be at the worker’s “usual holiday pay in accordance with the Working Time Regulations 1998”. It therefore appears that Furloughed employees who take annual leave while Furloughed will be entitled to be paid 100% of their normal wages for the period of annual leave. Employers may want to exercise their powers to restrict annual leave uptake during Furlough, in accordance with their statutory and contractual powers.
- There is no formal clarification as to whether employers can require employees to take annual leave during Furlough, but our view is that this is likely to be permissible.
- HMRC has updated its Statutory Payment Manual to provide that Furloughed employees do not qualify for SSP. In addition, new Regulations confirm that employees will be deemed to be incapable of work if they are unable to work because they fall within the extremely vulnerable category and have been advised to shield. The Regulations came into force on 16 April and, on first reading, it does not appear they have retrospective effect.
Helen Boddy is a partner in Boddy Matthews, solicitors specialising in Employment law – www.boddymatthews.com