Employee Retention Scheme Eligibility Extended

Dylan Loughlin

There have been a number of updates regarding the Coronavirus Job Retention Scheme (CJRS) including changes to eligibility and further instructions for payment. We have condensed this below for your ease. For real time updates as this Pandemic develops, Sign up to our Newsletter

The Treasury issued a direction to HMRC which contains instructions for making payments under the Coronavirus Job Retention Scheme (“CJRS”).

The direction contains information which we are mostly aware of, however additions have been highlighted below:

  • employees who were employed on 19 March 2020 (previously 28 February 2020) are eligible for furlough, provided the employer had submitted real time information payroll data by that date (paras 3.2 and 5(a))
  • the Scheme is not limited to those employees who would otherwise be made redundant. It is applies to any who are furloughed “by reason of circumstances as a result of coronavirus or coronavirus disease” (para 6.1(c)). This is inclusive of those who are shielding, too afraid to come to work or would have otherwise been laid off.
  • a director who is furloughed can only undertake work to fulfil a duty or other obligation arising from an Act of Parliament relating to the filing of company’s accounts or provision of other information relating to the administration of the director’s company (para 6.6).
  • to claim furlough, the employer and employee must have agreed in writing that the employee will cease all work (para 6.7). This is significant; the guidance only required notification. The Direction from the Treasury requires written agreement. DO NOT PANIC. Those employees who have already been furloughed can be issued an email:

“Further to the direction issued by the Treasury to HMRC, we require you to confirm in writing that whilst you are on furlough leave, you will cease all work, please reply by return with, “Yes,” if you agree with this, and, “No,” if not.

  • those employees that have not been furloughed, I have written this clause into the furlough letter, so an updated letter is all that is required. (Contact Dylan to obtain a draft furlough letter).
  • the amount of salary for the employee must disregard anything which is not “regular salary or wages”. That includes disregarding any performance related bonus or discretionary payments (including tips), any conditional payments (eg where a threshold must be met) and any non-financial benefits (paras 7.3 – 7.5). General rule of thumb- if it’s not contractual, it’s not paid. If it has to meet a threshold, it’s not paid. There is no legal definition of regular, but please note, we consider payments to be regular if they are paid on a consistent 52 week/12 monthly basis at a consistent value [PSNI v Agnew 2019].
  • the employer can claim for earnings which it “reasonably expects to be paid” to the employee (para 8.1(a)) – that seems to include deferred earnings, deferred until the Scheme pays out (provided they are not conditional on the Scheme paying out).
  • there is still no reference to annual leave. However, we do presume that employees will continue to accrue annual leave, the logic being that this is the case with Parental leave, Sick Leave, etc.

As always, please get in touch if you have any questions .

Dylan & The Copacetic Team