The latest update on Furlough leave

1. HMRC told a Parliamentary Select Committee that the online portal will open on 20 April, with the first reimbursements made on 30 April.

2. The eligibility date has been extended from 28 February 2020 to 19 March 2020– the day before the scheme was announced. This allows employers to claim for furloughed employees that were employed and on their PAYE payroll on or before 19 March 2020. The employee must have been notified to HMRC through an RTI submission notifying payment in respect of that employee on or before 19 March 2020.

3. Updated ACAS guidance confirms that workers can continue to request to take annual leave while they are on furlough. It says: “If an employee is ‘furloughed’ (temporarily sent home because there’s no work), they can still request and take their holiday in the usual way. This includes taking bank holidays.” It therefore appears that the position is that employers now have two options in relation to annual leave and bank holidays during the furlough leave period:

  • Allow employees to take annual leave and/or bank holidays during their furlough period; or
  • To direct that employees take their annual leave and bank holidays at another time. However note that where employers want to refuse permission for a worker to take leave on particular days they must give notice which is at least as long as the holiday requested.

4. The updated guidance confirms that a transferee is eligible to claim under the scheme in respect of employees who transferred to it after 28 February 2020, where either the TUPE or PAYE business succession rules apply to the change in ownership. An employee who transfers under TUPE is not hired by the new employer, but transfers with all their terms and conditions from the previous employer intact.

5. Employers are free to switch employees from sick pay to furlough and vice versa, although this should not be abused by using furlough to ‘top up’ small amounts of SSP for short term absences. Also, clarification that employers can furlough ‘shielding’ employees, and they do not have to be placed on sick pay.

6. Confirmation that those with certain work visas will not be regarded as breaching their visa conditions if they receive funds under the furlough scheme: “Grants under the scheme are not counted as ‘access to public funds’, and you can furlough employees on all categories of visa.”

7. The Treasury has issued a Direction to HMRC under powers conferred by the Coronavirus Act 2020, containing authority and instructions for making payments under the Coronavirus Job Retention Scheme. This Direction confirms (amongst other things):

  • Employees who were employed on 19 March 2020 (previously 28 February 2020) are eligible for furlough, provided the employer had submitted real time information payroll data by that date.
  • The furlough scheme is not limited to those employees who would otherwise be made redundant. It is applies to any who are furloughed “by reason of circumstances as a result of coronavirus or coronavirus disease”.
  • A director who is furloughed can only undertake work to fulfil a duty or other obligation arising from an Act of Parliament relating to the filing of company’s accounts or provision of other information relating to the administration of the director’s company. This is a very narrow interpretation of directors’ duties.
  • To claim furlough, the employer and employee must have agreed in writing that the employee will cease all work. The previous guidance only required notification. This means that the employer must instruct the employee in writing that they will be furloughed and the employee must give their written agreement. This can be done by email.

-Maria Gallucci

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