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Job Retention Scheme Update (09.04.20) – Advice for employers on applications

With many cash starved businesses concerned about whether they will receive CJRS grants before it’s too late, HMRC is expected to open the Job Retention Scheme Portal on the 20th April and hope to have the first reimbursements made around 10 days later.

Following the initial backdated claims, claims can be made no more than 14 days before payrolls are run but will be accepted for the different pay periods.  Further guidance will be issued by HMRC this week on how to use the system.

Further updated guidance has also been issued on the 9th April in relation to:

  • Purpose of the scheme:  The wording describing the purpose of the scheme has been widened slightly to read that it should be used where an employer has been “severely impacted” and “cannot maintain” its current workforce.  The guidance also includes that “the Government recognises different businesses will face different impacts from coronavirus”.
  • Shielding employees (and their carers): the requirement that an employee had to be "unable to work from home” and the employer would "otherwise have to make them redundant” has been removed. It now appears that shielded employees and their carers are covered provided their employer has been "severely affected” and "cannot maintain the workforce”.
  • No work during furlough:  the requirement that an employee doesn’t do any work for their employer now extends to associated or linked organisations.
  • TUPE:  TUPE employers that have undertaken a TUPE transfer, or similar transfer, after 28th February will be eligible for the Job Retention Scheme. Therefore, a new employer is eligible to claim under the Job Retention Scheme in respect of the employees of a previous business transferred after 28th February 2020 if either the TUPE or PAYE business succession rules apply to the change in ownership.
  • Holidays:   There has been no official update with regards to holidays being taken during furlough and the rate of pay for these holidays.   ACAS have updated their guidance to say that that if an employee is placed on furlough they can still request and take their holiday in the usual way (including bank holidays which is particularly relevant in April and May).   HMRC has been issuing advice to businesses confirming that annual leave can be taken during furlough.  No doubt further clarification will follow in the coming days on this issue.
  • Returning from statutory leave: (eg maternity, paternity, shared parental, sick leave etc). This confirms that if these employees are placed on furlough, their ordinary salary should be used to calculate their furlough pay, and not the amount they received whilst on statutory leave.
  • Sick and/or isolating employees: The previous guidance confirmed that those on sick or isolation leave could not be furloughed, however the updated guidance allows employers and employees to agree that sick or isolation leave can be brought to an end early in order to allow the employee to be furloughed. If the employer is eligible to claim a 14 day SSP rebate they can still do so, but only up to the point of furlough.
  • Salary Sacrifice Schemes:  Benefits provided through salary sacrifice schemes (including pension contributions) that reduce an employee’s taxable pay should not be included in the reference salary. Therefore, the reference salary is the employee’s salary post sacrifice and not the pre-salary sacrifice amount.
  • Foreign nationals:  even if a foreign national is on a visa which stipulates that they have "no recourse to public funds”, they will still be entitled to protection from the scheme.

We appreciate that this is an extremely stressful and worrying time for many.  Our employment law specialist, Lisa Aitken is available to take your questions and provide tailored advice to your specific circumstances.  She can be contacted on 07960 469988.

This article is a general summary of the law and should not replace legal advice tailored to your specific circumstances.

Updated:  14.04.20



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