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Silent tweetment for holidays in new furlough guidance (UK)

When all this is over and the UK looks back to see what we learnt from the Coronavirus crisis, maybe somewhere on the list will be a point on making law by Twitter.  #askRishi on Friday evening was an extremely brave attempt on the Chancellor’s part to engage with the detailed issues arising from the Job Retention Scheme , but it does create some interesting questions for future judicial interpretation when what employers are relying on are essentially on-the-hoof announcements with the lifespan of a mayfly.  Next stop, law by Snapchat.

Personally I would rather base my business decisions on, y’know, actual law, but pending that, there was some further help for employers in the revised Covid-19 Guidance issued on Saturday morning.  This contained some clarification, some further confusion and nothing at all about what the Government must surely know to be one of the key questions on all this, i.e. the interplay between furlough and holiday (but see below).  So what did Saturday’s Guidance bring us?

  • It does not appear that there will be any pre-condition of furlough support that the employer is unable to afford to keep employees on payroll without it.  The wording has subtly changed from the employer being severely affected by the virus to its operations being so, thereby putting a bit of distance between the impact of the virus and the employer as a whole.
  • Parents who are now forced to spend extended time in the company of their children and do not find the whole experience too distressing for words can now furlough their nanny.  Who says that the Government does not have its finger on the pulse of the common man?
  • The provision allowing you to claim furlough support for people who left your employment after the end of February if you now take them back on has been restated, seemingly without any proviso as to why their employment with you ended.  Although it is clearly aimed primarily at those who were made redundant as a result of the virus, there seems nothing in the new Guidance to prevent you re-employing and furloughing immediately employees dismissed for other reasons or who had quit for another job which had then fallen through.  The only outstanding question on this point is why on earth you would want to do that.  For the redundant staff it could make sense, but in the other cases the re-hire would not affect either the grounds on which you dismissed (and indeed, re-hiring could seriously undermine your argument that the dismissal was justified) or the likelihood of another resignation as soon as the opportunity arose.  In addition, selective re-hiring, even if you limit it to picking among those made redundant, would generate an immediate discrimination and/or victimisation risk.
  • In the same vein, the Guidance says that if your employee is on a fixed-term contract which expires mid-furlough, you can claim support beyond the expiry date if you agree to extend or renew that contract.  Think very carefully before you renew for the sake of it, especially if the renewal will take the employee over two years and into unfair dismissal protection.  In addition, if there is no realistic prospect of your being able to use that employee when the crisis lifts, re-hiring him may simply saddle you with notice and redundancy pay obligations you would have avoided if you let the contract expire on time.
  • The first version of the Guidance excluded furlough funding claims in respect of fees, commission and bonus, but Saturday’s edition includes “any regular payments you are obliged to pay”.  That includes in turn “past overtime” (not clear what this means, exactly) and “compulsory commission” (presumably commission which is contractual).
  • Where there are salary sacrifice schemes in place, the claim to HMRC should be based on the post-reduction figure, even if that takes the employee below the national minimum wage.  However, HMRC has determined that in these exceptional circumstances an employee may vary or end that sacrifice arrangement so as to maximise his earnings while on furlough.
  • The most interesting piece, actually by dint of what it doesn’t include, relates to the information employers will need in order to make a claim.  The employer is required to do the necessary calculations and then to send HMRC only the very basic details of number of employees, period of furlough and amount claimed.  There seems no requirement to identify individual employees nor, very significantly, to state whether in the period claimed for they have been on holiday or sick leave.  On the face of it, HMRC is just not interested in those details.
  • Or not at this stage, at any rate – however, the Guidance expressly reserves the right of retrospective audit and the requirement to keep records of who you furloughed and when for at least five years gives an indication of the duration of HMRC’s possible look-back.
  • Employees can be furloughed “multiple times”, it says, so resolving the debate squarely and hopefully finally in favour of an employer’s ability to rotate those on furlough if it sees fit so long as it is for not less than three weeks at a time.

Though the HMRC Guidance still side-steps the holiday question, Acas (which has no legislative standing at all but seems undeterred by that) has stepped into that gap.  Revised guidance from them on Friday says just in time for Easter that “Employees and workers may still be required to use a day’s paid holiday for Bank Holidays, including when they are furloughed”, and that a furloughed employee “can still request and take their holiday in the usual way.  This includes taking Bank Holidays”.  What Acas says about the right to take holidays in furlough is not technically the same as HMRC necessarily agreeing to pay for it and there have been suggestions that one cannot be on furlough and on holiday at the same time.  However, if you add the silence on the holiday point in the new HMRC Guidance to what appears to be the absence of any question on it in the Scheme claim protocol, you are pushed strongly towards what would be the only sensible outcome anyway, i.e. that days taken as leave mid-furlough will not affect the employer’s eligibility for funding for that period.  We shall see, and hopefully very soon.

 

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 96

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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
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Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding...

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