Employees’ agreement to flexible furlough
As is currently the case, the terms of flexible furlough will need to be agreed with the employee (or via a collective agreement with a trade union). The terms of the agreement should be recorded in writing. Employers have to keep this record as well as records of how many hours their employees worked and the number of hours they were furloughed for six years.
No restrictions on flexibility
The CJRS guidance does not place any limits on the flexibility of arrangements that employers may wish to put in place. Therefore many different combinations of part-time or flexible working are possible, provided the employee agrees. As before, however, employees are not allowed to work during periods designated as furlough.
No minimum furlough period
Under the current CJRS, furlough periods must last a minimum of 3 consecutive weeks. This will not be the case under the flexible CJRS. From 1 July 2020, flexible periods can last for any amount of time. However, where a previously furloughed employee starts a new furlough period before 1 July 2020, this furlough period must last a minimum of 3 consecutive weeks (even where this period ends after 1 July 2020) before any flexible furlough can begin.
Claims under the CJRS
Claims for periods ending 30 June 2020 must be made by 31 July 2020. Employers will not be able to make a claim under the flexible CJRS until 1 July 2020.
Claim periods starting on or after 1 July must start and end within the same calendar month and must last at least 7 days unless the employer is claiming for the first few days or the last few days in a month. This means that separate claims will need to be submitted for each month where a pay period or a furlough period overlaps two months.
As with the current CJRS, employers will still only be able to make one claim for any period, so they will need to ensure they include all furloughed or flexibly furloughed employees in one claim.
Maximum number of employees eligible to any claim
The number of employees which can be claimed for in any claim period cannot exceed the maximum number the employer has claimed for under any previous claim. Employers who have operated on rotating furlough arrangements before 1 July 2020 should take extra care with this to ensure they calculate the maximum number correctly.
Specific rules apply for calculating the maximum number of employees where there are employees newly furloughed following statutory family-related leave or where employees have transferred to a new employer under TUPE.
Information required for making a claim
The same information will need to be provided in respect of making a claim for an employee under the flexible CJRS, however, employers will also need to provide details of:
- the actual hours the employee worked in the claim period; and
- the employee’s usual hours worked in the claim period.
Calculating claims
Furloughed employees who are working part-time under the flexible CJRS will only be eligible for the grant in respect of the furloughed hours and so the cap under the CJRS will be proportionate to the hours not worked. Employers will need to consider and work out the flexibly furloughed employees’ usual hours and actual hours worked, as well as furloughed hours.
Employees returning from family-related leave after 10 June 2020
The guidance confirms that employees returning from maternity, shared parental, adoption, paternity or parental bereavement leave after 10 June 2020, can be furloughed for the first time, provided that:
- the employer has previously furloughed employees in its organisation between 1 March and 30 June for 3 consecutive weeks;
- the employee started maternity, shared parental, adoption, paternity and parental bereavement leave before 10 June and returned from leave after 10 June; and
- the employee was on the PAYE payroll on or before 19 March 2020 and so a real time information submission has been made on or before 19 March.
When calculating the maximum number of employees that can be furloughed under the flexible CJRS in these circumstances, the number of employees being furloughed for the first time due to returning from family-related leave can be added to any previous maximum for the period up to 30 June.
TUPE transfers after 10 June 2020
A new employer is eligible to claim in respect of employees of a previous business transferred after 10 June 2020 if:
- TUPE or business succession rules apply; and
- the employees being claimed for have previously had a claim submitted for them by the previous employer in relation to a furlough period of at least 3 consecutive weeks between 1 March and 30 June 2020.
In claiming for the maximum number of employees, the transferee will be able to claim the total for both:
- the maximum number of employees the transferee claimed for in any one claim ending on or before 30 June; and
- the number of employees that are being transferred to the transferee that have had a claim submitted for them by the transferor in relation to a consecutive 3 week furlough period between 1 March and 30 June 2020, subject to the maximum cap the previous employer was subject to.
Errors while claiming
New guidance has been published detailing what employers should do if they make an error when making a claim via the online portal. Employers should inform HMRC about the overpayment in their next claim and the amount reimbursed for that claim period will be correspondingly reduced. There is no guidance on what an employer should do if they do not plan to submit further claims, however, it is understood an update on this will be published in due course.
