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Furlough – Compliance and Claiming

The Government has extended the Coronavirus Job Retention Scheme (CJRS) until 31 March 2021. 

This guidance applies for CJRS / furlough claims for the period starting on or after 1 November 2020 and is intended to assist you in ensuring that you can compliantly ensure that you can secure HMRC support for furloughed staff.

  • It is possible to furlough employees with effect from 1 November 2020, even if a business was not able to get a written agreement in place by that date.
  • An agreement may be reached with an employee to backdate furlough to 1 November 2020 provided that a retrospective agreement is put in place by the end of Friday 13 November 2020. This backdated agreement will be dependent on the employee genuinely having been furloughed during this time. If the employee has actually been working all of their usual hours, furlough cannot be backdated.
  • Flexible furlough continues to be an option, meaning employees can work part-time and receive a furlough grant for their unworked hours. Employers will pay the employee’s wages for the hours they work as normal and claim for the furloughed hours, with reference to the employee’s normal working hours.
  • Employers seeking to use CJRS either to extend furlough for employees already on the scheme or put new employees on furlough will need to get the employees’ agreement. A new agreement would also be required for employers looking to amend the existing furlough terms with their workers.

For Lexleyton clients, your existing flexible furlough agreement is fine to continue using for any employees who remained on furlough since 31 October 2020, as it is compliant with the requirements set out in the HMRC Policy Paper, Factsheet and updated online guidance (updated as at 11 November 2020), subject to the employee meeting the eligibility criteria under the extended CJRS.

The existing Lexleyton template flexible furlough agreement would not come to an end until the CJRS ended, an employer removed the employee from furlough altogether, or the employment relationship ended (e.g. by reason of redundancy). For those individuals, they simply remain furloughed on the same terms. It is important to remain in regular communication with these staff as well, to ensure they have good visibility around business plans, to support their wellbeing and minimise any anxiety or complaints.

We consider that there are three routine scenarios where a new furlough agreement will require to be put in place with a worker and given retrospective effect to 1 November 2020.

The worker has been previously furloughed
using a letter/agreement which was not provided by Lexleyton.
For employees already on the scheme, now would be a good time to pause and consider whether their agreement meets the eligibility criteria and legal requirements for retrospective effect. Employers can also consider whether it is best to extend furlough on existing terms or revisit and potentially tighten up arrangements.  If choosing to tighten up or amend the existing furlough arrangements, please contact your Lexleyton solicitor for an up to date agreement.
The worker was advised, either verbally or in
writing, that their furlough agreement was
coming to an end.
Consistent with the terms of the previous wording, the previous furlough agreement will end if an employer advises the worker it is coming to an end. To then benefit from the retrospective effect of the extended CJRS, an employer would require to reach a new written agreement on or before Friday 13 November 2020.
The worker is being furloughed for the first time on or after 1 November 2020. To then benefit from the retrospective effect of the extended CJRS, an employer would require to reach a new written agreement on or before Friday 13 November 2020. We recommend you contact us for an updated furlough agreement.

If one of these scenarios applies to your workers, or you are unsure, please contact your Lexleyton solicitor to discuss, without delay or reach out to our team at legal@lexleyton.co.uk

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