UK Covid-19: updated guidance published on extended CJRS

Updated 12, 13 November 2020

The guidance on the Coronavirus Job Retention Scheme has now been updated to set out the rules under the scheme extension from 1 November 2020; links to the latest versions are available here.  These largely reflect the details already announced and much of the technical detail of the scheme remains unaltered from the August version (with the exception of the core eligibility rules), but there are a few points worth highlighting:

• From December 2020, employers may no longer be able to claim a CJRS grant to cover furlough pay for employees who are under notice of termination. The guidance states that "The government is reviewing whether employers should be eligible to claim for employees serving contractual or statutory notice periods and will change the approach for claim periods starting on or after 1 December 2020, with further guidance published in late November."  Update: on 13 November this was amended to confirm that claims cannot be made for days on or after 1 December 2020 during which a furloughed employee was serving a contractual or statutory notice period, including notices of retirement or resignation. 
• The required furlough agreement with employees can be made retrospective to cover the period from 1 November 2020, but must be put in place by this Friday 13 November 2020.
• Claims under the extended scheme can be made from 11 November 2020 and must be submitted by 11.59pm 14 calendar days after the month being claimed for (so any annually paid employees may need to be paid earlier than usual for any time they are on furlough).  HMRC may accept a claim made after the relevant deadline if the employer had a reasonable excuse for failing to make a claim in time and then claimed without delay after the excuse no longer applied (but note that HMRC "will not consider reasonable excuses" prior to the claim deadline).  A claim can be amended to increase the amount claimed only if this is done within 28 calendar days after the month the claim relates to.  If a deadline falls on the weekend then it is extended to the next working day.
• From December 2020, HMRC will publish the names of employers (and the company registration number for companies and Limited Liability Partnerships) who have made claims under the scheme for December onwards. Update: on 13 November the guidance was amended to note that HMRC will also publish an indication of the value of the claim, and will publish further detail on how this will be done in late November. The updated version also confirms that employers' details will not be published if this would result in a "serious risk of violence or intimidation" to certain individuals (including any employee, director, officer, partner, LLP member, individual employer etc), or any individual living with them" and the employer requests this with supporting evidence. Further details of how to make a request will be available soon. 

As previously announced, the guidance confirms that:

• employers will be able to claim 80% of an employee's usual salary for hours not worked up to a maximum of £2,500 per month (or a prorated amount for flexible furlough); employers will only need to pay for the cost of employer NICs and pension costs for hours not worked;
• employers do not need to have previously claimed for an employee under the previous version of the CJRS;
• employers can claim for employees who were employed on 30 October 2020, as long as they have been included in a PAYE RTI submission to HMRC between 20 March 2020 and 30 October 2020;
• employees included on an RTI submission between 20 March and 23 September 2020 who subsequently stopped working for their employer can also qualify for the scheme if the employer re-employs them;  the same applies to employees on fixed term contracts expiring after 23 September 2020 (note the employee guidance wrongly refers to 23 October on this point); Update: on 12 November this was amended to cover employees employed on 23 September 2020, and included in an RTI submission between 20 March and 30 October 2020;
• for employees who were previously eligible for the CJRS, the calculation rules for usual hours and wages remain the same;  otherwise the reference periods are updated to the last pay period ending on or before 30 October 2020 for individuals with fixed hours and pay and for those on variable hours averaging is to be done using the period from 6 April 2020 (or any later start date) up to the first day of furlough on or after 1 November 2020;
• the closing date for claims up to and including 31 October remains 30 November 2020.

The Treasury Direction which will provide the legal framework for the extended scheme has not yet been published.  It is to be hoped that the inconsistencies between various iterations of the guidance and subsequently published Directions which plagued earlier versions of the scheme can be avoided, given the uncertainty this created for employers.  However, the errors sprinkled through the latest updates do not augur well.  For example:

• the guidance states that where employees transfer from a previous business under TUPE or PAYE business succession rules, the new employer can claim for these employees provided they were employed by their prior employer on or before 30 October 2020 and transferred to their new employer on or before 1 September 2020. Most new employers who have acquired a business by 1 September 2020 would be able to satisfy the basic eligibility condition without this extra provision (ie, the acquired employees will in most cases have been included on an RTI submission made by 30 October 2020), rendering it pointless.  HMRC have since tweeted that it should have referred to acquisitions on or after 1 September 2020. Update: on 12 November the guidance was amended to state that claims can be made provided the employees were transferred on or after 1 September 2020, and were employed by either old or new employer on 30 October 2020 and included by either old or new employer in an RTI submission between 20 March and 30 October 2020.
• the employer guidance still only references the ability to claim for employees serving statutory notice of termination during furlough, whereas the employee version refers to claims during both statutory and contractual notice. In any event, this discrepancy will soon be irrelevant as from 1 December 2020 claims cannot be made for notice periods (see above).