Amid the Chancellor of the Exchequer announcing that the CJRS will be extended until the end of June, this week we have seen yet further revisions to Statutory Sick Pay (“SSP”) Regulations and further published Government Guidance (7th iteration) concerning the Coronavirus Job Retention Scheme. Whilst clarity is welcomed, it would appear that in some areas, the latest publications have merely created more uncertainty as to how the CJRS operates.
SSP and shielding individuals
The SSP (General) (Coronavirus Amendment) (No. 3) Regulations 2020 (“SSP Regulation”) came into force on 16 April and provide that a person who is “extremely vulnerable” (as defined in public health guidance) and who has been advised to shield is deemed to be incapable to work. The SSP Regulation does not appear to have retrospective effect.
The Treasury Direction issued to HMRC on 15 April 2020 (the “Direction”) states that an employee cannot be furloughed whilst they are paid, or liable to be paid, SSP. In light of this, one practical implication is that the SSP Regulation has the unintended consequence of excluding employees who are shielding from 16 April 2020 onwards from being eligible for the CJRS as they are deemed incapable of work and are entitled to SSP.
However, this interpretation appears to contradict the latest CJRS Government guidance for employers (the “Employer Guidance”) which was updated on 23 April 2020. As with the previous iterations which were issued before the Treasury Direction, this states that employers are entitled to furlough employees who are being shielded or on long term sick and that it is up to employers to decide whether or not to furlough these employees. The Employer Guidance does however stipulate that short-term illness /self-isolation should not be a consideration in deciding whether to furlough an employee.
Perhaps helpfully, the Explanatory Memorandum to the SSP Regulation states that the SSP Regulation has been introduced to ensure people who are unable to work because they are shielding themselves in accordance with public health guidance are entitled to SSP. However, it further notes that it is intended to be a “safety net for individuals, in cases where their employers chooses not to furlough them under the CJRS” (emphasis added). We understand that HMRC has indicated that employers should follow the Employer Guidance as applications for reimbursement will be granted in accordance with this.
What does this mean for employers in practice? There are clear inconsistencies between the Direction, the Employer Guidance and the SSP Regulation. We do not currently know which document may take precedence and it is likely that there will be further changes. We also do not know with any certainty how HMRC will apply the Direction. However, as the latest Employer Guidance has not altered in relation to the furloughing of shielding employers, as at 23 April 2020, it appears that employers can in fact choose whether to furlough shielding employees or put them on SSP. There will be some element of commercial risk for employers should they take this step, in the event that HMRC take the step to interpret the strict wording of the Direction that an employee cannot be furloughed whilst they are receiving or entitled to receive SSP.
On a less controversial note, HMRC also updated their statutory payments manual on 19 April 2020 which now provides that employees do not qualify for SPP if they are furloughed as part of the CJRS. This coincides with the Employer Guidance which specifically states that an employer cannot claim back from the CJRS and SSP rebate scheme at the same time, which appears to also be consistent with the Direction.
Further revisions to the CJRS have occurred through both the Direction and revised HMRC Guidance, some of which we highlight below.
- Requirement for written agreement
Under the Direction, an employee can only be furloughed where the employee’s cessation of work has been agreed in writing between the employee and the employer. This appears to require the employee’s consent to furlough in writing before they will be eligible for the CJRS and there is no suggestion that this can be obtained retrospectively.
The requirement to obtain written agreement was not clearly indicated in earlier versions of the Employer Guidance, which merely required employers to notify their employees in writing that they had been furloughed.
The latest reiterations of the Employer Guidance now states that an employer must confirm in writing to their employee that they have been furloughed, and if this is provided in a way that is consistent with employment law, that consent is valid. Whilst there must be a written record, the employee does not have to provide a written response. Whilst discrepancies appear to remain in relation to what is required to indicate consent, we are aware that HMRC has informally indicated that an employer will not be prevented from accessing the CJRS purely because they have not obtained written agreement from their employee to cease all work.
In practical terms, it now appears unlikely that employers, who have already furloughed employees without obtaining their prior written consent, will now need to obtain written consent from their employees before they are able to access the CJRS.
- Annual Leave whilst on furlough
In good news, HMRC have finally provided some clarity on the issue of annual leave for furloughed employees.
The Employee Guidance on the CJRS (“Employee Guidance”) now provides that employees can take annual leave whilst on furlough. If an employee takes holiday whilst on furlough they should be paid their usual holiday pay in accordance with the Working Time Regulations. In practical terms, employers will be obliged to pay the additional amounts over the grant received from HMRC to ensure that their employees receive their full contractual salary.
Employers will have the flexibility to restrict when leave can be taken if there is a business need. This applies to both the furlough period and the recovery period, although what counts as the recovery period has not yet been defined. Of note is that the Employee Guidance specifically provides that that HMRC are keeping the policy on holiday pay and furlough under review. This suggests we may see further changes on this issue in the weeks to come.
If you require specific advice or support in managing any of the workforce issues arising from this ever changing situation, including advice on which staff are eligible for the CJRS or alternative option available to you in managing your workforce, please contact Jodie Sinclair or Julian Hoskins at Bevan Brittan’s employment law team.
For further support and advice relating to the impact of COVID-19, please view our COVID-19 Advisory Service page.