Furlough Leave: HMRC and ACAS guidance updated as at 30 April 2020

It seems that a week cannot go by without further revisions to the published guidance on accessing the Coronavirus Job Retention Scheme (CJRS).  ACAS has also updated their advice for employers and employees.  Here we summarise the key changes.

TUPE transfers after 28 February 2020

Eligibility under the CJRS has now been extended to employees transferred pursuant to TUPE transfers taking place after 28 February 2020.  Previously, employers could only claim in respect of employees transferred to them after 19 March 2020. 

Furloughed employees acting as employee representatives

In a welcome clarification, the updated guidance confirms that furloughed employees are permitted to undertake the duties and activities of union and non-union employee representatives, provided that does not involve them providing services to, or generating revenue for, their employer (or any linked or associated organisation). This is a point which had been troubling some employers who had decided to proceed with redundancy consultation with furloughed employees and were nervous that the activities of employee representatives might invalidate the grant.

Pay entitlement of furloughed employees who take family-related statutory leave

The Guidance contains further details about calculating the pay of furloughed employees who take family related leave (maternity, paternity, adoption, shared parental or parental bereavement leave).

Confirmation that furlough leave may be extended

Each period of furlough leave can be extended for any duration, although the last date in respect of which an employer may claim under the CJRS will be the date on which the CJRS ends (currently 30 June 2020).

Company directors with annual pay periods

Company directors with an annual pay period are eligible to claim under the CJRS providing they meet eligibility criteria, including being notified to HMRC in an RTI submission on or before 19 March 2020, which relates to a payment of earnings in the 19/20 tax year (i.e. the tax year from 6 April 2019 to 5 April 2020). 

The period between the start of the 19/20 tax year on 6 April 2019 and the 19 March 2020 CJRS RTI deadline is less than 12 months, which means that some directors will be ineligible under the CJRS if there was no RTI submission for 19/20 earnings until after 19 March 2020.  This could be the case if the company runs annual director payroll / RTI to coincide with the 5 April end to the tax year.  For instance, a company that made an RTI submission on 5 April 2019 for annual 2018/19 director earnings, and another on 5 April 2020 for annual 2019/20 earnings would not be eligible to claim under the CJRS even if the other conditions are met.