Guide to furlough leave - what it is and how it works

29 January 2021

Some businesses are unable to operate (either partially or fully) during the coronavirus lockdown. The Coronavirus Job Retention Scheme (CJRS), which is also referred to as the furlough scheme, provides that HM Revenue & Customs (HMRC) will reimburse 80% of an employee's salary to their employer for hours not worked, so that workers can be paid to stay at home.

The furlough scheme has now been extended until 30 April 2021. This will be reviewed when the new Budget is announced on 3 March 2021.

The Job Support Scheme, which will follow on from CJRS, has been put on hold for the time being.

How does the coronavirus job retention scheme work?

The Chancellor announced the implementation of the CJRS on 20 March 2020. The aim of this scheme is to provide financial support to businesses during the coronavirus pandemic.

From 1 November 2020 HMRC will pay the employer 80% of the employee's wages, up to £2,500 a month. In addition, employers now have the option to flexibly furlough employees as well as fully furloughing employees. There is now no maximum number of employees an employer can claim for.

Employers can still claim furlough pay for periods ending on or before 30 October 2020, up until the deadline of 30 November 2020, providing they have made a PAYE RTI submission to HMRC between 20 March 2020 and 30 October 2020, notifying a payment of earnings for that employee.

To claim for periods from 1 November 2020 onwards, employers can only claim for employees that were employed and on payroll on 30 October 2020 (unless the employee was re-employed after 23 September 2020). For this period, employers can only agree to apply furlough retrospectively if the agreement is put in place on or before 13 November 2020.

All UK businesses are eligible to apply for it and to do so employers need to make an online application through the government portal.

The CJRS is therefore a mechanism through which employers can claim money from HMRC. It will not change any pre-existing Employment Law rights or obligations between the employer and employee.

Key features of the coronavirus job retention scheme

  • The Scheme applies to any employees who are furloughed "by reason of circumstances as a result of coronavirus or coronavirus disease".
  • Employers can claim up to 80% of a furloughed worker's wages, up to £2,500 per month.
  • Salary or wages must be regular and anything that is conditional or discretionary will not be included in the calculation e.g. discretionary bonuses or tips.
  • The Scheme applies to people who have been asked to stop working (either on a full time or flexible basis) but are being kept on the payroll. It will only apply to those employees who have stopped working altogether. An employee cannot do any work for their current or associated employer whilst they are designated as furloughed.
  • Unless employees have a "lay-off" clause in their contracts of employment, employers will need to agree to furlough employees, as this will be a variation to their existing employment terms. It seems unlikely that employees will object in the circumstances.
  • An employer must designate a worker as furloughed in order to be able to claim from the CJRS. There must be an agreement in writing of their furlough status setting out how many hours the employee is working and the number of hours they are furloughed. The employer should keep the document for at least 5 years. This can be in electronic form, such as an email.
  • Flexible furlough agreements can last for any amount of time, though all claim periods must be at least 7 days. Employees can enter into flexible furlough agreements multiple times.
  • Workers can do volunteer work or training whilst they are furloughed, providing it does not provide a service to or generate revenue for their employer.
  • Whilst a worker is on furlough leave, they will remain employed and continuity of service should be preserved (although government guidance is silent on this point).

As previously stated, the scheme allows the employer to claim back up to 80% of the worker's salary and if the employer wishes to, they can top up pay. However, if an employer does not wish to top up pay, they will need to reach agreement with the employee that their salary will be reduced.

It seems likely that workers will agree, bearing in mind the alternative options which are likely to be redundancy or being laid off on nil pay. In the event an employer is seeking an agreement with employees to pay them up to 20% less, then it is likely they will ask them to sign a written agreement.

Can I work for another employer while on furlough?

The government guidance for employees says that workers can work for another employer whilst they are on furlough and this will not affect their existing employer's ability to claim under the CJRS. However, they will need to comply with their existing contractual terms and obligations and are advised to discuss this with their current employer.

How does an employer decide which employees to furlough?

The employer may implement a matrix system but should ensure that decisions are not made based on any potential protected characteristics, unless this can be justified.

For example, the employer may decide that elderly or vulnerable employees should be furloughed. In light of the guidance to businesses that the over 70's are more vulnerable, making the decision to furlough over 70's is likely to be justified, but employers should do this is consultation with employees. Ultimately, a worker must agree to be furloughed because this is a variation to their existing terms and conditions.

Employers can furlough employees whose health has been affected by coronavirus and any other conditions, which includes if they are unable to work from home, or are working reduced hours due to:

  • Being clinically and extremely vulnerable or at the highest risk from coronavirus according to Government guidance.
  • Having caring responsibilities caused by the pandemic e.g caring for children who are at home due to schools closing or caring for a vulnerable person in their household.

This does not mean that employers must furlough vulnerable people or those caring for others in such a way, but that they can, as an option.

So, if you are a parent who must stay at home to look after children as a result of schools closing, you are eligible for furlough.

Can workers demand to be furloughed?

No. The decision to furlough a worker rests with an employer. Workers who wish to be furloughed due, for example, to having caring responsibilities at home do not have the explicit right to place themselves on furlough.

Can vulnerable workers be furloughed?

The Government has advised clinically extremely vulnerable people not to go to work if they cannot work from home. If a person is deemed to be incapable of work because they fall within the vulnerable category, they will be entitled to Statutory Sick Pay (SSP).

Workers in tier 4 who are shielding can also be designated as furloughed but only if they cannot work from home and would otherwise have been made redundant. If a worker in any tier has a disability within the meaning of the Equality Act 2010, the employer will need to consider whether furloughing the worker amounts to a reasonable adjustment.

How is the 80% calculated If employees don't have regular weekly earnings?

For salaried workers, wages will be their regular salary (capped at £2,500 per month).

For those employees who have been furloughed prior to 1 November 2020 their 80% pay will continue to be calculated as follows:

If an employees’ pay varies and they have been employed for a full 12 months, their pay will be the higher of: - Their earnings in the same month in the previous tax year, or - Their average monthly earnings for the 2019-20 tax year.

If a worker has not been employed for a full 12 months, their wages will be their average monthly earnings since they started work.

For employees who have not been furloughed prior to 1 November 2020, 80% of wages will be calculated as follows: - For those on fixed wages it will be 80% of the wages payable in the last pay period ending on or before 30 October 2020 (capped at £2,500 per month). - For those on variable wages it will be 80% of the average of pay between the start of their employment (or 6 April 2020, if later) and the day before their furlough period begins (capped at £2,500 per month). - For flexibly furloughed employees their pay will depend on their working and furloughed hours.

Does holiday continue to accrue during furlough?

Yes it does. Also, employers can require employees to take holidays during furlough leave providing they give them the requisite notice under the Working Time Regulations. However, the Employer should consider whether the employee would be prevented from resting, relaxing and enjoying leisure time.

Where an employee takes annual leave during furlough, the rate of pay should be in line with their normal rate of pay rather than the furlough rate of pay (if higher). Taking annual leave will not affect the furlough period and as such the employer will only need to top up the difference in pay (if any).

Can an employer carry out redundancy warning and consultation during furlough?

Yes. If the employer believes that they will need to make redundancies (despite the furlough scheme) it is likely they can begin the warning and consultation process during the furlough period.

If an employer contemplates making 20 or more redundancies within 90 days, then they have an obligation to start the collective consultation process as soon as is reasonably practicable. If there are more than 20 and up to 99 roles being made redundant at the same place, then consultations will need to start at least 30 days before the first redundancy is made. If there are 100 roles or more being made redundant, then the consultation will need to start at least 45 days before the first redundancy is made.

However, for claim periods starting on or after 1 December 2020 the Government has confirmed that employers will not be able to claim for any days where the employee is serving a contractual or statutory notice period. This will apply to all situations where employment has been terminated with notice, and not just for redundancies.

What is my employer’s deadline for submitting furlough pay claims to HMRC?

The employer must submit a claim for furlough pay within 2 weeks of the end of the previous calendar month:

Claim for furlough days in Claim must be submitted by
November 2020 14 December 2020
December 2020 14 January 2021
January 2021 15 February 2021
February 2021 15 March 2021
March 2021 14 April 2021
April 2021 14 May 2021

If I'm made redundant when the furlough scheme is available, is this unfair dismissal?

This is a new area of Employment Law and it is likely to depend on the individual circumstances. Employees with 2 years' continuous service continue to be protected from unfair dismissal.

If there is a reduction in the need for employees to do work of a particular kind because a business or workplace has closed, then this is likely to be a redundancy. However, an employer has the obligation to act reasonably and a Tribunal must have regard to the resources available to the employer at the time of the dismissal.

In addition to the furlough scheme, employers can access the Government's Business Interruption Loan scheme. The question will be whether an employer can withstand the impact of coronavirus on their cash flow throughout 2020/2021.

Once the scheme is up and running, then if an employer refuses to consider furloughing staff as a way of avoiding redundancy, this could potentially render any dismissal unfair.

The difficulty is that we are unlikely to see any Tribunal decisions on this for over a year because many Tribunal Hearings have been postponed and there will be a backlog.