Extended furlough: new guidance and formal rules now published – important update

Last week saw the publication of three different sets of guidance on the extended furlough scheme – the Coronavirus Job Retention Scheme or CJRS. They have now been supplemented this morning by the formal rules governing how the scheme will run until 31 January. Following a review in January, there will then be a further formal update for the scheme as it operates in February and March 2021.

The latest guidance and the formal rules will give many employers pause for thought, as they make a number of significant changes to the scheme for businesses who choose to continue to use furlough from 1 December.

• Furlough agreements: The rules make clear that employers must reach formal agreement with staff before they can be furloughed. A written, contractually binding, agreement must be reached, and that must be completed before the start of the furlough claim period to which it relates. As before, the agreement must then be retained for five years.
• Claim periods: Information relating to claim period deadlines and timings has been clarified. The guidance includes a helpful summary table has now been included (extract below).

• HMRC will now publish the value of an employer’s claim:  We flagged in our previous note that HMRC would “name and shame” employers using the extended furlough scheme. At that point, it appeared from the guidance that only the names of employers would be published. That has now been superseded – presumably to reflect perceived general public sentiment about misuse of government funds - and it is now clear that HMRC will publish online the amount claimed as well. The technical requirement is for HMRC to publish an indication of the value of a claim, so it would be possible for them to use some form of representative bands – it remains unclear whether they will do so, so employers should assume for the time being that the precise value claimed will become publicly available.
• Notice: We have previously identified the discrepancy in some of the guidance on the issue of whether claims could be made during notice periods, and whether all forms of notice, or only statutory notice, were covered. This point has now been clarified, and it is now clear that firms cannot claim for any days on or after 1 December 2020 during which the furloughed employee was serving a contractual or statutory notice period. This includes people serving notice of retirement or resignation. This is a significant change to the previous position. For periods pre- 1 December, claims may be made if the employee is serving statutory notice only – confusingly it is still silent on contractual notice (confusing since employees normally serve contractual and statutory notice simultaneously).
• Rehiring and furloughing employees who left on or after 23 September: The guidance has been clarified to make it clear that employees who were made redundant or stopped working for an business on or after 23 September can be furloughed, but only if they are subsequently reemployed. This is helpful because it closes down arguments that employees who resigned/left had a right to be re-employed and furloughed and it rather indicates that employers have discretion over whether to do this.
• Penalties for not telling HMRC for overpayments: The system for repaying grants that were mistakenly paid or claimed for has been clarified, with new guidance for firms. The guidance seems designed to incentivise firms to notify HMRC of discrepancies – the sanction for overclaiming is significantly greater where it is deliberate and/or early confession is not made.

It is worth underlining that company directors, shadow directors, company secretaries or managers may have to pay some or all of the company’s penalty if the penalty is due to their actions, and one or more of the following applies:

• they’ve gained, or attempted to gain, personally from a deliberate inaccuracy; and/or
• the company is, or HMRC believes was about to become insolvent – even if the officer did not gain personally from the deliberate inaccuracy.

Links to guidance and rules

For ease of reference, the main pieces of guidance and the formal rules are linked below:

• Treasury Direction (formal rules)
• Step-by-step guide
• Claim for wages through the Coronavirus Job Retention Scheme
• Check which employees you can put on furlough to use the Coronavirus Job Retention Scheme
• Check if you can claim for your employees' wages through the Coronavirus Job Retention Scheme
• Compliance checks: penalties for failure to notify