Last reviewed 13 January 2021

With new lockdowns in place across the UK, Ben McCarthy, lead researcher and employment law writer at Croner-i, explores the key things to bear in mind for those seeking to make use of the scheme going forward.

Back in March 2020, the Coronavirus Job Retention Scheme (furlough scheme) was put in place to support employers who were not able to operate as normal due to the pandemic. By designating employees as “furloughed”, employers have been able to recover a portion of employee wage costs from the Government for the time in which they did not work. The cost of the scheme has been substantial, with it now set to last until the end of April 2021.

The furlough grant

Up until the end of June 2020, all furloughed staff were not permitted to conduct any work for their employer or an associated organisation. If they met this eligibility, employers could claim 80% of their wage costs to a cap of £2500 per month, alongside their National Insurance and employer pension contributions. This changed on 1 July, with furloughed staff now able to return to work part time if requested by their employer and the government providing funding for the hours in which they did not work — known as “flexible furlough”. As of November 2020, furloughed staff can be flexibly furloughed and the Government provides 80% of their wages for the time they do not work.

From 1 August, funding for the scheme started to change. While the Government still funded 80% of employee wages for the time they did not work, employers were required to pay the employer's National Insurance and pension contributions of furloughed workers' wage costs in relation to the hours that the worker did not work. This also remains the case from November onwards.

In this time, employers should ensure that they are making accurate claims from the scheme in order to avoid furlough fraud. Furlough fraud is a term used when employers overclaim grant payments under the scheme by either receiving money they are not entitled to from the start or after a change has occurred (eg an employee who is being claimed for is no longer part of the business).

To avoid penalties after having overclaimed under the scheme, employers should correct this error in their next claim, or make a payment directly to HMRC if the employer will not be making any future claims. Employers who have miscalculated the amount they needed to claim under the scheme, and are due to benefit more from it, can, again, contact HMRC to amend their claim. This is known as having underclaimed. Employers should note that HMRC have powers to perform additional checks if amendments on underclaimed grant payments are requested.

Furlough and redundancy pay

Furloughed employees who are then made redundant should receive redundancy pay based on their normal wage rather than a reduced furlough rate, according to a new law which came into force on 31 July 2020. This does not affect any enhanced redundancy pay that may be stipulated in the employees' employment contract; however, it does apply to basic statutory redundancy pay entitlements and statutory notice pay. Employees must be given a notice period before their employment ends, varying from at least one week's notice up to 12 weeks' notice, depending on how long they have worked for their employer, and should be paid accordingly for this time. While employers can ask staff to receive this payment in lieu, meaning they do not work the time, they should still be paid as though they have worked the notice period in full.

Claims for the furlough grant cannot be made for any member of staff working any form of notice. This includes notice associated with redundancy, retirement or dismissal.

Furlough and working parents

With schools once again being kept closed in England, Scotland and Wales, many employees may be wondering if they can be furloughed due to unexpected issues with childcare. The short answer is yes — the furlough scheme can be used for employees who have children who's school is closed. However, employers need to remember the purpose of the Job Retention Scheme, ie to help them cope with a reduction in demand due to the pandemic. If they have not seen this reduction, they should not be seeking to use the furlough scheme and may need to consider alternative options.

Furlough and shielding

Shielding has now returned in England, Scotland and Wales. This means that those who are considered extremely clinically vulnerable to the coronavirus should not go into work even if they cannot work from home. In this situation, they are entitled to receive statutory sick pay (SSP), which companies with less than 250 members of staff can seek to reclaim two weeks of through the SSP Rebate Scheme. Alternatively, companies can furlough shielding staff, which would ultimately be more cost-effective for them. Unlike the situation with working parents, the company does not need to have seen a business downturn to furlough staff who are shielding.

Takeaway

We face a hard couple of months as we wait for the roll out of coronavirus vaccines. In the meantime, employers should remember that the furlough scheme is there to help them if they are eligible to use it. Companies are therefore encouraged to make use of the scheme and seek further advice on doing so if necessary.