Claiming the Furlough From November 2020
HMRC PUBLISHED DETAILS OF THE EXTENDED CJRS ON THE 10 NOVEMBER
What you need to do for the claims – for periods from 1 November (HMRC email 10 November)
- Read the new guidance – go to GOV.UK and search ‘Extension to the Coronavirus Job Retention Scheme’ – to check if the clients’ employees are eligible.
- Ensure clients have agreed working hours with any employees they wish to furlough for November and have agreed any changes to their employment contracts.
- Work out how much they can claim for their employees using HMRC CJRS calculator and examples. Search for ‘Calculate how much you can claim using the Coronavirus Job Retention Scheme’ on GOV.UK.
- Submit any claims for periods from 1 November no later than 14 December.
This briefing is a precis of the guidance and you should refer directly to the website references provided for further details. Client resources for you to send to clients will follow. The Excel CJRS “Estimator” calculator is being worked on and will be released as soon as practicable. We will keep you informed of any new developments and guidance as we receive it.
The key facts are:
The CJRS is being extended until 31 March 2021.
The government will review the scheme in January 2021.
30 November 2020 is the last day employers can submit or change claims for periods ending on or before 31 October 2020.
The CJRS will remain open until 31 March 2021. From 1 November 2020 employers can claim 80% of an employee’s usual salary for hours not worked, up to a maximum of £2,500 per month.
Employers can claim for employees who were employed on 30 October 2020, as long as they have made a PAYE RTI submission to HMRC between the 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee. This may differ where they have re-employed an employee after 23 September 2020.
All employers with a UK bank account and UK PAYE schemes can claim the grant.
They do not need to have previously claimed for an employee before the 30 October 2020 to claim for periods from 1 November 2020.
Employers can furlough employees for any amount of time and any work pattern, while still being able to claim the grant for the hours not worked.
Employers might need to contribute towards the cost of their furloughed employees’ wages for these periods.
For periods from 1 November 2020, they will need to pay for the cost of employer NICs and pension costs.
Agreeing to furlough employees
Employers should discuss with their staff and make any changes to the employment contract by agreement. When employers are making decisions in relation to this process, including deciding who to offer furlough to, equality and discrimination laws will apply in the usual way.
To be eligible for the grant, employers must have confirmed with their employee (or reached collective agreement with a trade union) in writing that they have been furloughed. They must:
- ensure that the agreement is consistent with employment, equality, and discrimination laws
- keep a written record of the agreement for five years
- keep records of how many hours employees work and the number of hours they are furloughed (i.e. not working)
Employers can:
- fully furlough employees – meaning they cannot undertake any work for them while furloughed full time
- flexibly furlough employees – meaning they can work for any amount of time, and any work pattern, but they cannot do any work for them during hours that employers record them as being on furlough
If employers flexibly furlough employees, they will need to agree this with the employee (or reach collective agreement with a trade union) and keep a new written agreement that confirms the new furlough arrangement.
Key points:
- make sure that the agreement is consistent with employment, equality, and discrimination laws
- keep a written record of the agreement for five years
- keep records of how many hours employees work and the number of hours they are furloughed (i.e. not working)
Employers do not need to place all employees on furlough, and they can continue to fully furlough employees if they wish. Employees cannot undertake any work for the business during the time that the employer records them as being on furlough.
Where consistent with employment law, any flexible furlough or furlough agreement made retrospectively that has effect from 1 November 2020, will be valid for the purposes of a Coronavirus Job Retention Scheme claim, as long as it is made according to the conditions above. Only retrospective agreements put in place up to and including the 13 November 2020 may be relied on for the purposes of a claim.
Flexible furlough agreements
There is no minimum furlough period and agreed flexible furlough agreements can last any amount of time. Employees can enter into a flexible furlough agreement more than once.
Although flexible furlough agreements can last any amount of time, unless otherwise specified, the period that they claim for must be for a minimum claim period of seven calendar days.
Employees are on furlough
As with previous versions of the CJRS, during hours which employers record their employees as being on furlough, they cannot ask them to do any work for the business that:
- makes money for business / organisation or any organisation linked or associated with the organisation
- provides services for the business /organisation or any organisation linked or associated with the organisation
The employee can:
- take part in training
- volunteer for another employer or organisation
- work for another employer (if contractually allowed)
Employee taxes and pension contributions
Employees will still pay the taxes they normally pay out of their wages. Employers must deduct and pay to HMRC income tax and employee National Insurance contributions on the full amount that they pay the employee, including any scheme grant.
Employers must also pay to HMRC the employer National Insurance contributions on the full amount that they pay the employee, including any scheme grant.
Employers must report these payments via a Full Payment Submission (FPS) to HMRC on or before the pay date.
Employees will also still pay pension contributions (both employer and automatic contributions from the employee) unless the employee has opted out or stopped saving into their pension.
Keeping employee rights
Employees still have the same rights at work, including:
- Statutory Sick Pay (SSP)
- annual leave
- maternity and other parental rights
- rights against unfair dismissal
- redundancy payments
Employers can continue to claim for a furloughed employee who is serving a statutory notice period, however CJRS grants cannot be used to substitute redundancy payments.
Holiday pay
Furloughed employees continue to accrue leave as per their employment contract.
The employer and employee can agree to vary holiday entitlement as part of the furlough agreement, however almost all workers are entitled to 5.6 weeks of statutory paid annual leave each year which they cannot go below.
Employees can take holiday whilst on furlough. If an employee is flexibly furloughed then any hours taken as holiday during the claim period should be counted as furloughed hours rather than working hours.
Employees should not be placed on furlough for a period simply because they are on holiday for that period. Working Time Regulations (WTR) require holiday pay to be paid at the employee’s normal rate of pay or, where the rate of pay varies, calculated on the basis of the average pay received by the employee in the last 52 working weeks (twelve weeks in Northern Ireland). Therefore, if a furloughed employee takes holiday, the employer should pay their usual holiday pay in accordance with the Working Time Regulations.
Employers will be obliged to pay employees who are on holiday additional amounts over the grant, though will have the flexibility to restrict when leave can be taken if there is a business need and the correct notice is given. This applies for both the furlough period and the recovery period.
If an employee usually works bank holidays then the employer can agree that this is included in the grant payment. If the employee usually takes the bank holiday as leave then the employer would either have to top up their usual holiday pay or give the employee a day of holiday in lieu.
Employees working for a different employer
If contractually allowed, employees are permitted to work for another employer whilst the business has placed them on furlough.
For any employer that takes on a new employee, the new employer should ensure they complete the starter checklist form correctly. If the employee is furloughed from another employment, they should complete ‘statement C’ on the list.
If the employee does volunteer work
A furloughed employee can take part in volunteer work during hours which the employer records them as being on furlough, as long as it is for another employer or organisation.
If the employee does training
Furloughed employees can engage in training during hours which the employer records the employee as being on furlough, as long as in undertaking the training, the employee does not provide services to, or generate revenue for, or on behalf of their business /organisation or a linked or associated organisation.
Where training is undertaken by furloughed employees during hours which the employer records employees as being on furlough, at the request of their employer, they are entitled to be paid at least their appropriate national minimum wage for this time. In most cases, the furlough payment of 80% of an employee’s regular wage, up to the value of £2,500, will provide sufficient monies to cover these training hours. However, where the time spent training attracts a minimum wage entitlement in excess of the furlough payment, employers will need to pay the additional wages (see National Minimum Wage Section below for more details).
Furloughed employees working as union or non-union representatives or as pension trustees
During hours which are recorded as the employee being on furlough, employees who are union or non-union representatives may undertake duties and activities for the purpose of individual or collective representation of employees or other workers. However, in doing this, they must not provide services to or generate revenue for, or on behalf of the business / organisation or a linked or associated organisation.
During hours where the employee is recorded as being on furlough, employees who are pension scheme trustees or trustee directors of a corporate trustee may undertake trustee duties in relation to the pension scheme. However, a professional, independent pension scheme trustee who has been furloughed by the independent trustee company cannot undertake trustee work that would provide services to or generate revenue for, or on behalf of, the independent trustee company or any organisation linked or associated with that independent trustee company during hours which the employer records them as being on furlough.
Before making a claim
HMRC guidance on the steps to take before calculating a CJRS claim can be seen here: https://www.gov.uk/guidance/steps-to-take-before-calculating-your-claim-using-the-coronavirus-job-retention-scheme
Before calculating how much the business can claim from the CJRS, agents or employers will need to work out employees’ wages. To do this you must work out:
- the length of the claim period
- what can be included when calculating wages
- the employee’s usual hours and furloughed hours
The length of the claim period
The claim period is made up of the days the employer is claiming a grant for. The start date of the first claim period is the date the first employee was furloughed.
For claim periods starting on or after 1 July 2020, employers can claim for a period of less than seven days if they are claiming for the first few days or the last few days in a month. Employers can only claim for a period of fewer than 7 days if the period they are claiming for includes either the first or last day of the calendar month, and the employer has already claimed for the period ending immediately before it.
Employers should match claim periods to the dates they process their payroll, if possible.
Only one claim can be made for any period so this must include all furloughed or flexibly furloughed employees in the claim even if they are paid at different times.
If employers make more than one claim, their subsequent claims cannot overlap with any other claim made. Where employees have been furloughed or flexibly furloughed continuously (or both), the claim periods must follow on from each other with no gaps in between the dates.
Employers can claim before, during or after they process the payroll as long as the claim is submitted by the relevant claim deadline. However, when claiming for employees who are flexibly furloughed, employers should not claim until they are sure of the exact number of hours they will have worked during the claim period. This means that employers should only claim when they have certainty about the number of hours employees are working during the claim period.
If the pay period being claimed for includes days in more than one month
Claim periods starting on or after 1 July 2020 must start and end within the same calendar month. For these months, if the pay period includes days in more than one month, employers will need to submit separate claims covering the days that fall into each month. Each of the claims should be calculated separately.
Claim periods cannot overlap, so employers will need to make sure they include all of the employees they want to claim for in each claim they make.
What to include when calculating wages
If the employer has already claimed for an employee who was on furlough during October, and they are paid a fixed salary, they will follow the same usual wage calculation for claim periods after 31 October 2020.
The amount employers should use when calculating 80% of the employees’ wages for hours not worked, is made up of the regular payments they are obliged to make, including:
- regular wages paid to employees
- non-discretionary payments for hours worked, including overtime
- non-discretionary fees
- non-discretionary commission payments
- piece rate payments
The following should be excluded from the calculations:
- payments made at the discretion of the employer or a client – where the employer or client was under no contractual obligation to pay, including:
- any tips, including those distributed through troncs
- discretionary bonuses
- discretionary commission payments
- non-cash payments
- non-monetary benefits like benefits in kind (such as a company car) and benefits received under salary sacrifice schemes (including pension contributions) that reduce an employee’s taxable pay
The entirety of the grant received to cover an employee’s subsidised furlough pay must be paid to them in the form of money. No part of the grant should be netted off to pay for the provision of benefits or a salary sacrifice scheme.
Where the employer provides benefits to furloughed employees, including through a salary sacrifice scheme, these benefits should be in addition to the wages that must be paid under the terms of the Job Retention Scheme.
Normally, an employee cannot switch freely out of most salary sacrifice schemes unless there is a life event. HMRC agrees that coronavirus counts as a life event that could warrant changes to salary sacrifice arrangements if the relevant employment contract is updated accordingly.
Non-discretionary overtime payments
If the employee has been paid variable payments due to working overtime, these can be included when calculating 80% of the wages as long as the overtime payments were non-discretionary.
Payments for overtime worked are non-discretionary when the employer is contractually obliged to pay the employee at a set and defined rate for the overtime that they have worked.
Apprenticeship Levy and Student Loans
Employers should continue to pay the Apprenticeship Levy as usual. Grants from the Job Retention Scheme do not cover the Apprenticeship Levy.
Student Loan deductions should continue to be made from the wages paid to employees.
National Minimum Wage
Individuals are entitled to the National Living Wage, National Minimum Wage or Apprentices Minimum Wage for the hours they are working or treated as working under minimum wage rules.
At least minimum wage rates must be paid for all hours worked. Furloughed workers who are not working can be paid the lower of 80% of their wages or £2,500 even if, based on their usual working hours, this would be below their appropriate minimum wage.
However, time spent training whilst furloughed is treated as working time for the purposes of the minimum wage calculations and must be paid at the appropriate minimum wage rate. As such, employers will need to ensure that the wages and furlough payment provide sufficient monies to cover all working time including these training hours. Where the pay is less than the appropriate minimum wage entitlement, the employer will need to pay additional amounts to ensure at least the appropriate minimum wage is paid for both working time and 100% of the training time whilst furloughed.
Where a furloughed worker is paid close to minimum wage levels and asked to complete training courses for a substantial majority of their usual working time, employers are recommended to seek independent advice or contact Acas.
If claiming for a member of a Limited Liability Partnership (LLP)
If a member of an LLP is treated as an employee (because of salaried members rules), employers must only include payments that are either:
- fixed
- variable, but are varied without reference to the overall amount of the profits or losses of the LLP
- not affected by the overall amount of the LLP’s profits or losses
Employees returning from family-related statutory leave
Family-related statutory leave includes maternity leave, paternity leave, shared parental leave, adoption leave, parental bereavement leave, and unpaid parental leave.
For employees on fixed pay, claims for full or part time employees furloughed on return from family-related statutory leave should be calculated against their salary, before tax, not the pay they received whilst on family-related statutory leave. The same principles apply where the employee is returning from a period of unpaid statutory family-related leave.
Employees returning to work after being on sick pay
For employees on fixed pay, claims for full or part time employees furloughed on return to work after time off sick should be calculated against their salary, before tax, not the pay they received whilst off sick.
Claims for those on variable pay, returning to work after time off sick, should be calculated using the normal rules for employees whose pay varies.
Unpaid sabbatical or unpaid leave
If an employee has been on unpaid sabbatical or unpaid leave, employers will need to use the amount they would have been paid if they were on paid leave when calculating 80% of their wages.
Employee’s usual hours and furloughed hours
If an employee is fully furloughed, employers do not need to work out their usual and furloughed hours and you should work out the maximum wage amount. An employee is fully furloughed if they do not do any work during the claim period.
If the employee is flexibly furloughed, employers will need to work out the employee’s usual hours and record the actual hours they work as well as their furloughed hours for each claim period.
Employers can calculate the usual hours for the entire claim period or for each pay period, or part of a pay period, that falls within that claim period. HMRC guidance assumes that employers will calculate on a pay period basis but either method is acceptable.
If employers calculate the usual hours for the entire claim period and the result is not a whole number, round it up to the next whole number. If employers calculate the usual hours on a pay period basis you should round the result up or down to the nearest whole number.
There are two different calculations to work out employee’s usual hours, depending on whether they work fixed or variable hours.
Work out usual hours for employees who work variable hours, if either:
- The employee is not contracted to a fixed number of hours
- The employee’s pay depends on the number of hours they work
If neither of these apply, work out the employee’s usual hours for an employee who is contracted for a fixed number of hours.
The employee’s working pattern does not have to match their pay period (for example, an employee could be contracted to 40 fixed hours a week but be paid a variable monthly amount because of shift allowances). HMRC will not decline or seek repayment of any grant based solely on the particular choice between fixed or variable approach to calculating usual hours, as long as a reasonable choice is made.
Work out the employee’s usual hours for an employee who is contracted for a fixed number of hours and whose pay does not vary according to the number of hours they work
Work out an employee’s usual hours (for employees with fixed hours), by looking at their contracted hours at the end of their reference period.
The reference period is the last pay period ending on or before 19 March 2020 for employees who either:
- were on the payroll on 19 March 2020 (meaning the employer made a payment of earnings to them in the tax year 2019 to 2020 which was reported to HMRC on a Real Time Information (RTI) Full Payment Submission (FPS) on or before 19 March 2020
- the employer made a valid CJRS claim for them in a claim period ending any time on or before 31 October 2020
For all other employees, the employee’s reference period will be their last pay period ending on or before 30 October 2020. These employees will only be eligible for periods starting on or after 1 November 2020.
HMRC guidance outlines how to work out usual hours for an employee who works variable hours, if they are paid per task or by piece work, and calculating the number of working and furloughed hours for each employee.
The guidance also covers calculating the number of working and furloughed hours for an employee that is furloughed or flexibly furloughed for part of a claim period and an employee takes leave while they are flexibly furloughed. You should refer directly to the guidance in these circumstances. See: https://www.gov.uk/guidance/steps-to-take-before-calculating-your-claim-using-the-coronavirus-job-retention-scheme
JOB RETENTION SCHEME CALCULATOR
The Job Retention Scheme will remain open until 31 March 2021. For claim periods running until 31 January 2021, employees will receive 80% of their usual salary for hours not worked.
Use the HMRC calculator to work out the figures needed to complete the claim through the CJRS scheme.
Employers can use this calculator to claim for:
- employees who are fully furloughed and therefore not working any hours
- employees brought back to work for some of their normal hours from 1 July
- most employees who are paid weekly, two weekly, four weekly or monthly in fixed pay periods
- employees from 1 August who have returned from statutory leave such as maternity leave
The calculator cannot be used for employees if they:
- have an annual pay period
- have been transferred under The Transfer of Undertakings Protection of Employment (TUPE)
- were not employed continuously before their furlough started
- returned from statutory leave such as maternity leave in the last 3 months (if the claim period is in July or earlier)
- receive employer pension contributions outside of an auto-enrolment pension scheme
- ended furlough then began again during the same claim period
In these cases, work out what employers can claim manually using the calculation guidance.
See: https://www.tax.service.gov.uk/job-retention-scheme-calculator/claim-period-start
FIND EXAMPLES TO HELP YOU CALCULATE EMPLOYEES’ WAGES
HMRC have issued examples to help calculate employee’s wages, National Insurance contributions and pension contributions if claiming through the CJRS.
INDIVIDUALS EMPLOYERS CAN CLAIM FOR WHO ARE NOT EMPLOYEES
Office holders
Office holders can be furloughed and receive support through this scheme. The furlough, and any ongoing payment during furlough, will need to be agreed between the office holder and the party who operates PAYE on the income they receive for holding their office. Where the office holder is a company director or member of a Limited Liability Partnership (LLP), the furlough arrangements should be adopted formally as a decision of the company or LLP.
Company directors
As office holders, salaried company directors are eligible to be furloughed and receive support through this scheme. Company directors owe duties to their company which are set out in the Companies Act 2006. Where a company (acting through its board of directors) considers that it is in compliance with the statutory duties of one or more of its individual salaried directors, the board can decide that such directors should be furloughed. Where one or more individual directors’ furlough is so decided by the board, this should be formally adopted as a decision of the company, noted in the company records and communicated in writing to the director(s) concerned.
Where furloughed directors need to carry out particular duties to fulfil the statutory obligations they owe to their company during hours which they are recorded as being on furlough, they may do so provided they do no more than would reasonably be judged necessary for that purpose, i.e. they should not do work of a kind they would carry out in normal circumstances to generate commercial revenue or provides services to or on behalf of their company.
This also applies to salaried individuals who are directors of their own personal service company (PSC).
Company directors with an annual pay period
CJRS can be claimed in respect of employees who are paid annually, as long as they meet the relevant conditions.
An employer can make their claim in anticipation of an imminent payroll run, at the point they run their payroll or after they have run their payroll.
Employers can only claim in advance if the payroll run is imminent, and claims must be submitted within 14 days of the end of the relevant month, so businesses might need to pay any annually paid employees earlier than usual for any time they are on furlough.
Claims for a period starting on or after 1 November 2020
Employers must have made an RTI submission between 20 March 2020 and 30 October 2020 notifying HMRC of a payment of earnings to that employee.
The requirement for there to be payment of earnings between 20 March 2020 and 30 October 2020 applies for any employee being claimed for under the scheme, irrespective of how frequently they are paid (e.g. weekly, fortnightly or monthly). This will be relevant for those on an annual pay period if the last payment notified to RTI was before 20 March 2020 and no further payments were notified before 30 October 2020.
Salaried members of Limited Liability Partnerships (LLPs)
Members of LLPs who are designated as employees for tax purposes (‘salaried members’) under the Income Tax (Trading and Other Income) Act (ITTOIA) 2005 are eligible to be furloughed and receive support through this scheme.
The rights and duties of a member of an LLP are set out in an LLP agreement and in the absence of an agreement, default provisions in the LLP Act 2000, based upon company and partnership law. Such an agreement may include separate agreement between the LLP and an individual member setting out the terms applicable to that member’s relationship with the LLP.
To furlough a member, the terms of the LLP agreement (or any such agreement between the LLP and the member) may need to be varied by a formal decision of the LLP, for example to reflect the fact that the member will perform no work in the LLP for the period of furlough, and the effect of this on their remuneration from the LLP. For an LLP member who is treated as being employed by the LLP (in accordance with s863A of ITTOIA 2005), the reference salary for this scheme is the LLP member’s profit allocation, excluding any amounts which are determined by the LLP member’s performance, or the overall performance of the LLP.
Agency Workers (including those employed by umbrella companies)
Where agency workers are paid through PAYE, they are eligible to be furloughed and receive support through this scheme, including where they are employed by umbrella companies.
Furlough should be agreed between the agency, as the deemed employer, and the worker, though it would be advised to discuss the need to furlough with any end clients involved. As with employees, agency workers should perform no work for, through or on behalf of the agency that has furloughed them during hours which they are recorded as being on furlough, including performing such work through or on behalf of the agency for the agency’s clients.
Where an agency supplies clients with workers who are employed by an umbrella company that operates the PAYE, it will be for the umbrella company and the worker to agree whether to furlough the worker or not.
Limb (b) Workers
Where Limb (b) Workers are paid through PAYE, they can be furloughed and receive support through this scheme.
Those who pay tax on their trading profits through Income Tax Self-Assessment, may instead be eligible for the Self-Employed Income Support Scheme (SEISS).
Contingent workers in the public
The Cabinet Office has issued guidance on how payments to suppliers of contingent workers impacted by COVID-19 should be dealt with where the party receiving the contingent worker’s services is a Central Government Department, an Executive Agency of a Central Government Department or a Non-Departmental Public Body.See: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/892881/Procurement-Policy-Note-02_20-Contingent-Workers-Impacted-by-COVID-19.pdf
Sector Contractors with public sector engagements in scope of IR35 off-payroll working rules (IR35)
Public sector bodies will follow the Crown Commercial Services guidance in the vast majority of cases. In a small number of cases, for example where organisations are not primarily funded by the government and whose staff cannot be redeployed to assist with the coronavirus response, it may be appropriate to claim under the Coronavirus Job Retention Scheme. Contractors who are deemed employees according to the off payroll working rules might be eligible for this scheme.
In this scenario, if the public sector organisation wished to furlough a contractor, they would have to confirm this with both the contractor’s Personal Service Company (PSC) and the fee-payer (as set out in the off-payroll working rules, usually the agency paying the contractor’s PSC). It should be formally agreed between these parties that the contractor is to do no work for the public sector organisation during their period of furlough. The fee-payer would be able to apply for the furlough payment of 80% of the monthly contract value, up to a maximum of £2,500, as well as the employer NICs on that subsidised wage. The fee-payer would then pay at least the amount of wage-grant received to the PSC and report the payment via PAYE using the contractor’s details, making the usual tax and National Insurance contributions (NICs) deductions for contracts in scope of the off-payroll rules. The PSC would then be required to report the amount it pays to the contractor as deemed employment income via PAYE using box 58A on the PAYE Real Time Information return.
Where a contractor is continuing to receive payments from a public sector client (including through the Coronavirus Job Retention Scheme or other any other scheme), income from this client should be excluded from any calculation of the reference pay for the purposes of the scheme if the contractor also decides to furlough themselves as an employee or director of their own company.