*UPDATE* Furlough extended to 31 March 2021

Furlough has now been extended to 31 March 2021 and we have some clarity around the question of which employees are eligible.

Below information last updated 17 November 2020

The latest re-publication of the job retention scheme rules came out last Tuesday evening, and has been updated twice since then. The regulations governing the scheme have also been published.

Hopefully they will stay still now for a couple of months, but please note the rules of the scheme are being reviewed in January. Not sure what this statement means, maybe a reduction similar to the arrangements happened in September and October?

The proof required under the proposed job support scheme has gone. Eligibility is pretty loose - ‘If you cannot maintain your workforce because your operations have been affected by coronavirus (COVID-19)’.

We have seen most of the information before but it is worth noting the following:

• The scheme applies to employees who were employed on 30 October 2020 and includes employees who have been made redundant, or they stopped working for you on or after 23 September 2020 and you have subsequently re-employed them.
• You do not need to have previously claimed for an employee before the 30 October 2020 to claim for periods from 1 November 2020.

The ‘flexible furlough’ rules apply:

• there is no maximum number of employees you can claim for from 1 November 2020.
• You must keep a written record of the agreement for five years and a record of the hours worked (the guidance does not specify written record)
• The employee does not have to provide a written response to the agreement

HMRC will publish employer names of those employers who have made a claim under the scheme from 1 December onwards, and provide a ’reasonable indication’ of the value of the claim.

For claim periods relating to November, you can continue to claim for a furloughed employee who is serving a statutory notice period, however, grants cannot be used to substitute redundancy payments. It is not clear if this covers contractual notice (which is often longer).

For claim periods starting on or after 1 December 2020, you cannot claim furlough for any day on which an employee is serving notice. This includes contractual or statutory notice period and people serving notice of retirement or resignation. This is a significant change.

If you make an employee redundant, you should base statutory redundancy and statutory notice pay on their normal wage rather than the reduced furlough wage.

Where employees are returning from maternity leave, they must give 8 weeks’ notice and then they can be placed on furlough. However in practice employers and employees often agree a shorter notice period. It is not clear whether you can put them on furlough before the end of the 8 weeks.

The guidance states ‘you can agree to shorter notice in certain circumstances’ but then goes on to state that they cannot be placed on furlough before the end of the 8 weeks. This is unclear and until we get clarification, it would be safest not to claim until after the 8 weeks period has expired. You should also have written records showing notice dates.

Get in touch with Kiera @ Mills Selig if you have any queries:

Kiera Lee, Partner and Head of Employment, Mills Selig

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