Updated Furlough Guidance provides clarification for employers

Answers to questions about employee benefits, overtime and commission & more

Over the weekend the government has updated its guidance for employers on the Coronavirus Job Retention Scheme (CJRS), providing some welcome clarification in a number of areas (albeit still leaving some unanswered questions in others).

Dismissed employees

The guidance has now clarified that if an employee was dismissed for any reason since 28 February 2020 they can be rehired and placed on furlough leave. It was previously unclear as to whether it was limited to employees dismissed on the grounds of redundancy. However, it is clear that employees dismissed for any other reason also qualify.

Employees with two jobs

The updated guidance has stated that employees with two jobs can be furloughed from one employer whilst working for another. The new guidance has also expressly allowed for a furloughed employee to start a new job elsewhere, subject to any provision in their employment contract to the contrary (and potentially earning their furloughed salary and new salary).

Limb (b) workers

The CJRS now expressly covers different types of “non-employees”, including limb (b) workers. These are workers who do not have an employment contract but have some form of agreement to undertake or perform work in an employment-like capacity. However, these workers will still need to have been on the company’s payroll on 28 February to be eligible for the CJRS.

Company directors

The recently published guidance also confirms that company directors can be furloughed. Although they are not supposed to carry out any work for the company whilst on furlough leave, HMRC will permit directors to carry out work in relation to their statutory duties.

Apprentices

Apprentices are able to be put on furlough leave whilst continuing their training. However, employers should bear in mind that apprentices will still need to be paid their applicable minimum wage (and therefore will need to cover any shortfall above the CJRS contribution). Separate detailed guidance on apprentices has also been made available by the government. Click here to read the guidance on gov.uk.

Overtime and commissions

It was previously unclear as to whether overtime should or could be taken into account. The new guidance is specific that employers can claim for any regular payments they are obliged to pay employees, including wages, past overtime, fees (whatever they might be) and compulsory commission payments earned. However, discretionary bonuses (including tips) and commission payments and non-cash payments should be excluded.

Benefits in kind and salary sacrifice

The updated guidance confirms that the salary used to calculate the amount of reimbursement applicable through the CJRS should not include the cost of non-monetary benefits such as company cars or health insurance. Any such benefits should still be provided to the employee at employer’s cost whilst they’re on furlough leave unless expressly agreed otherwise.

For those employees who are currently part of a salary sacrifice scheme, HMRC have agreed that COVID-19 will count as “a life event” that can enable changes to their salary sacrifice arrangements (subject to any necessary contractual amendments being made).

Procedure

Although the process of how to make an employee a furlough employee is well documented (see our guidance available here), the updated guidance has stated that employers must not only notify employees of their furlough status in writing but they must also keep a record of that written notification for five years.

If you need additional information or assistance throughout the coronavirus crisis, please contact us by emailing info@salaw.com
All members of SA Law's teams can be contacted using the details on their profiles, click here.

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